Jngersoi.j. J.
Tins was an action brought by Jesse. Brown and .Se» against The Union Insurance Company in Ac» London, (the sanie being an incorporated company for making marine insurance,) to recover for a loss of the cargo of the ship Franklin. The declaration stated, that on tiro 5th day of August, 1808, the plaintiffs were owners ot the cargo to be shipped on board of (he ship Franklin, then lying and being at the island of Martinir/ue, in the West Indies, or bound to Martinique, and from thence to her port of destination in the United Stales. That the plaintiffs proposed to said company, to assure them four thousand dollars of said cargo, to be shipped on board of the Franklin, after the same should have been shipped, at and from Martinique, to her above port of destination ; and, that the cargo so to be shipped, they would warrant to be American propery. That said company, for a premium of nine per cent, by a policy of insurance duly executed, did assure to the plaintiffs, the sum of four thousand dollars of the above mentioned cargo, at and from Martinique to the port of destination in the United Stales, “ from the dangers of the seas, fire, enemies, assailing thieves, restraint and detainment of princes and people, of what nature or quality soever, barratry of the master or mariners, (unless the assured were owners of the vessel,) and from all other misfortunes and losses that should come to said cargo.’' The declaration then stated, that the Franklin, being laden with a cargo to the amount of ten thousand dollars, on or about the 1st day of November, 1808, sailed from Martinique for the United States, andón the voyage was captured by certain vessels of war belonging to his Brilante majesty, and by them was held in custody, so that the cargo was lost to the plaintiffs. There was a count also, stating the Joss to have been by the barratry of the master amt mariners, in this[5]*5, that the master anil mariners, dill, within and during said voyage, resist the search and capture of his majesty’s brig of war Ferret, by means of which, said cargo was afterwards, by tin' ¡¡rigs of war Melpomene and Circe, wholly detained from IJic plaintitfs, and to them lost,” &c.
The plaintiff-, to make out their case, produced the policy of insurance, duly executed by said company, in which it appeared that said company made the insurance as above stated. They also proved their property in the cargo, and that tiic vessel was owned by Elisha Denis o» and W. and S. Robinson, citizens of the United States ; and that a capture was made as stated in the declaration ; and that they had duly made an abandonment to the defendants. They then rested their case, claiming as for a total loss.
_ The defendants, in their defence, proved a capture by a British ship of war; a rescue, by the master and mariners ; a re-capture, by another British ship of war ; and produced a copy of a condemnation passed in the court of vice-admiralty at Gibraltar, in which the ground of condemnation was stated as follows, to wit, “ Pronounced the said vessel, called the Franklin, and her lading to have been unlawfully rescued and retaken, by the master and others, put on board thereof, from his majesty’s sloop of war Ferret, Wells, commander, whilst proceeding to a British port for adjudication, and as such, or otherwise, liable to confiscation; and condemned the same as good and lawful prize to our sovereign lord the king”, &c.
There was in the court below, a verdict and judgment for the plaintiffs to recover their loss aforesaid; the court directing the jury to return a verdict in favour of the plaintiffs on the aforesaid facts. The jury accordingly so returned their verdict, on which, the court as above stated, gave judgment in favour of the plaintiffs.
The defendants below, to wit, said insurance company, moved for a new trial, on the ground, that the direction of the court was wrong; and prayed to have the question reserved for the opinion of this court, whether there ought not to be a new trial of the cause ? — It was argued in favour of [6]*6a new trial, by the counsel for the insurance company, that the decree of condemnation by the court at (iibraUar, was conclusive evidence of resistance to a search, us it appeared by the decree, that the taking and holding in custody, on the part of the captors, was for the purpose of ascertaining the fact, whether or not there was enemy’s properly on board ? It was further argued, that the rescuing the ship out of the hands of the captors, by the captain and crew, proved, conclusively, a breach of neutrality.
Upon this slate of facts, it was urged, lltul there could be no recovery, unless the rescuing by the master and mariners should he considered as barratry, which, it was said, it clearly was not, as it «lust be supposed to have taken plací for the benefit not only of the master and mariners, but also of the owners.
On the part of the plainlilT#, it was urged against a new trial, that the decree of condemnation did not decide the question of neutrality, as resistance to a search was .justifiable ; but at any rate, it it was uot so, it amounted to barratry, and on that ground, it was said the judgment was right.
My opinion is, there ought no! to lie a new trial, and on the ground that the rescuing and retaking of the ship Franklin, was barratry in the master and mariner;,. In order to determine whether such rescuing and retaking was barra-trous, it. may he necessary to take into consideration the right of search. This rigid, though at various times disputed. yet is now established iu Grent-Britain, by various derision# of the courts of that country, founded, as is supposed, on the law of nations.
A very pointed derision in favour of this rigid, and that, resistance to a search is a breach of neutrality, is found in the case of Garrels et al. v. Kensington, 8 Term Rep. 280. That was a case of capture, rescuing and afterwards a recapture, and a condemnation on the ground “ of a violation of neutrality, by means of the rising of the master, supercargo, and crew of the captured vessel, on Hie captors, ami retaking (lie vessel ; declaring the same aiso to be contrary ⅛ Hie Jaw of nations, and the faith of treaties.” The action [7]*7was brought agains! the underwriter on a policy of insurance on goods; tin* cargo on hoard the vessel was captured and condemned under the abou: circumstances. Indeed, the question in that case was much tilt; same, if not precisely the same question which is made in this case, except, that there was no averment in the declaration of a loss hy the barratry of the master and mariners, and of course, there could be no recovery on that ground. The court of King’s Bench unanimously determined in that case, that there could be no recovery against the defendant. The judges expressly maintained the right of search, and that resistance to such right was unlawful. On no other ground could judgment have been given in favour of the defendant, the underwriter.
The case of Saloucci v. Johnson, where the right of search seems to be questioned, mentioned in Park 364. and in Marshall 301. was taken up and commented on by them ; and they endeavoured to make out, that the case of Garrels v. Kensington was different, they overruled the doctrine laid down in the former case.
The right is also recognized in Barker v. Blakes, 9 East, 292.
That this doctrine is founded on the law of nations, is proved by Marshall, in his treatise on insurance, from plage 306 to 317, where, for this purpose, he refers to Bynkershock and Vattel, writers on the law of nations, as well as to the Con solato del Mare, which he says is “ one of the most ancient collections of marine laws now extant.”
The subject is also elucidated, and the question put beyond all doubt, by the judgments in the English court of admiralty, in the case of the ship Maria, 1 Rob, A dm. Rep. 287. one i.f the Swedish vessels sailing under the convoy of a Swedish frigate; which case is recited in the above pages in Marshall's treatise.
The right of search being established, the consequence necessarily follows, that resistance to this right is unlawful, and a breach of neutrality. The question, however, still remains, whether the act of resistance, as between the insurer and insured, shall be denominated barratry. It is said in [8]*8this cuse, mid has been sail! in other cases of the like kind, that barratry always carries the idea of fraud, of crime, with it; and that also, to constitute barratry , it is esseutial, that, the act or acts claimed to be barratrous, should not be done with a view to promote the interests of the owners, but to promote that which is diametrically opposite to it, to injure or destroy such interest: that the acts of resistance and rescuing, in the present case, most be supposed to he done for the benefit of the plaintiffs; and had there been no recapture, would undoubtedly have been approved by them ; and con-, sequent!}-, that they were nut barratrous. To prove this proposition, several authorities were cited, in which it liad been determined, that a deviation for the purposes of trade was not barratry ; for though such deviation was contrary to the orders of the owners, yet being avowedly for their benefit, it could not come under the denomination of barra-try. The same authorities were also cited to prore, that there must be sonjéthing fraudulent, something criminal, in the act or acts claimed to be barratrous, in order to make them so. Among the cases cited for this purpose, were Stamma v. Brown, 2 Stra. 1173. Nutt v. Bourdieu, 1 Term Rep. 323, and Phyn v. Royal Exchange Assurance Company, 7 Term Rep. 505.
I am of opinion, however, that the acts of resisting a search and rescuing the ship, in the present case, were barra-trous acts. If it be a clear principle, that those acts were unlawful, as being contrary to the law of nations, it strikes me, the consequence must inevitably follow, that they were bar-ratrous acts. 1 go upon the ground that they took place without the knowledge or consent of the plaintiffs ; for so it appeared, and nothing contrary thereto was pretended. C<‘|, the right of search be once established, and all resistance to it, must, of course, be unlawful. For it is perfectly absurd to say, that one man may resist another cloathed wish authority, in the legal exercise of that authority. Buch resistance, then, being unlawful, must he denominated criminal¿ for, unless a forcible resistance to the legal exercbe of a right, established by law, be criminal, I hardly know what is. [9]*9<■ will not do-to say, that the unlawful acts of the master .i luí man hits were the cause of the loss of the properly insured, yet they were intended lor the hent-fil of the plaint ill’s, (hough unauthorized ¡¡y them, a;,d if so, were not barratrous, ¡'ho point is, were they unlawful ? Were they unauthorized? If so, a pretended intention of benefit to the plaintiffs will be nr:.": ailing.
Rut decided cases put the question beyond all doubt.
in Moss v. Byrom, 6 Term Rep. 383. it was determined, 'li.il where a captain took Letters of Marque, and deviated from his voyage to cruise for prizes, and actually took one, and carried it into Bermuda, and there libelled for the benefit of his owners and himself, but soon after, his own vessel was driven on shore and lost there, it was barratry in him; and on that ground, a recovery was had by the owners against the underwriters.
Cases may he cited, wherein it has been held, that a nonpayment of duties by the master, which caused a seizure of the ship, was barratry.
Rut the case of Earl and others v. Rowcroft, 8 East, 126. et seq. I think, settles the present question. It was a case, in which precisely the same question did not come up, as came up in the present case, but the governing principles of it are the governing principies of this case. It was an action brought against the underwriter, “ on a policy of insurance dated 28th January, 1804, on the ship Anabella, at and from IJverpool to the coast of Africa, during her stay and trade tb re, and to the port of sale in the West Indies, with liberty to exchange goods, &c., and the plaintiff averred a loss by the barratry of the master.” The great question in the case whs, whether the captain’s trading at an enemy’s port, try means of which the ship was captured by an English frigate, and condemned, and so lost to the insured, was barratry ? It was very' ably argued, and all the authorities were brought tip, and the judgment was rendered against the underwriter. It is a pretty long case, and I shall barely cite a part of the opinion of lord Ellenborough, in which, principles are laid down, which, as I apprehend, must govern the present case. [10]*10His lordship says, “ it has hern strongly cMitncdcii < ¡i th. part of the defendant, that if the conduct of the master, though criminal in respect of the state, were in his opinion likely to advance his owner’s interest, and intended by him to do so, it will not. he barratry. But to this we cannot assent : for it is not for him to judge in cases not intrusted to his discretion, or to suppose that he is not breaking the trust reposed in him, hut acting meritoriously, when he endeavours to advance the interest of his owners, by means which the law forbids, and which his owners, also must he taken to have forbidden, not only from what ought to he, and therefore, must he presumed to have been, their own sense of public duly, but also, from a consideration of the risk and loss likely to follow from the use of such means.”
Indeed, in the case of Saloucci v. Johnson, heretofore referred to, the court in giving their opinion, as stated by Marshall in page 302. say, that a ship warranted neutral, must so conduct herself as not to forfeit her neutrality ; and, that if by the wilful act of the captain, she do this to the injury of the owners, it will amount to the offence of barratry.” Park in Ms treatise, states it as the opinion of Mr. .Justice Bullcr in that case, “ that if the act of the captain in resisting the search of bis ship, by a Spanish vessel at sea, had been a for---feiture of his neutrality, it would have been barratry.”
Thus, in Grcat-Britam, I think, this question is settled.
In a case also, before the Supreme Court of Pennsylvania? reported in 2 Binney, 574 to 581. chief justice TUghnum gives a decided opinion, that rescuing a vessel is barratry. He says, “ we have the opinion of judge BvJJcr, that the act of a neutral master, which forfeits his neutrality, is barratry” It has not, I think, been contended by the d> fondants counsel, that a rescue is not unlawful.. On that point i agree with the opinion of judge Washington, in Doederer v. The Delaware Insurance Company, where he thus expresses himself-. “ Thai the attempt to rescue the vessel, was unlawful, and afforded a ground for condemnation, is proved by the opinion of the best informed jurists, and has received tin sanction of the common law courts, in a variety of instance^” He adds. [11]*11. mi' this doctrine was admitted by (he counsel of the assured.” Upon the whuie,” says chief Justice Tiliihnimi, “ my opinion, formed, iudecd, during the course of litis trial, and therefore, not so much to he relied on, as if after argument in bank, is that if a rescue was committed, it was an act of barratry.”
Aly opinion, then-fore, is, that ¡hete ought to he no new trial.
in this opinion ;ditcíiki.c, Ch. J. Swift, Tucmbum,, Edjio.m), Smith, and Hai.ihvin, Js. severally concurred.
IIkcvk, .1.
it is contended, that the recapture of the vessel: was barratry, and on this account it was condemned j and thus a loss ensued to the owners, by this wrong act of the captain. If the law was indeed so, that the rescue of the vessel was an unlawful act, and that every unlawful act of the master, l>y which loss ensues, is barratry'-, then the insurers are liable, aside from another consideration which I shall notice presently. For argument's sake, I admit, that the master had no right to rescue the vessel ; but I deny, that the consequence is, that the act done was barratry.
It i-> laid down by a writer of high authority in the mercantile world, that “ non (minis navarci culpa est barataría, sed solum, lime ea dicitur quando committitur cum praeexistenti ejus machinaticne et dolo pmordinalo ad casmn. Casaregis, dis. 1. n. 11.
in Phyn v. The Royal Exchange Assurance Company, 7 Term Rep. 505. it is laid down by lord Kenyon, that a deviation, which occasioned the loss of the ship, although a wilful one, was not barratry, unless there was a fraudulent view in the captain at the time. The case was, the captain's instructions were to proceed directly to Jamaica ; the ship was carried out of her reckoning, and was found to be between the (hand Canary and Tenerife. Her direct course to Jamaica, wtts south-west; but he bore away to Santa Crus, which was north-west; she was there embargoed, and, war breaking out betwixt England and Spain, she was made a [12]*12prize. The principle that governed in (⅛. and all nthei crises, is, that if the probable consequence of ilie lbina d-mc, is not to endanger the properly of the owners, (line i--- no fraudulent view, nothing criminal towards the nwnriv. The consequences of going to Sania Cmwere not fort n on. inn could be conjectured with any probability of their oeemreuee. But whenever the probable consiqueuces of the unlawful act done, will be a prejudice to the owners, alfl'engli ilmi-: with a view to their benefit as well as his own, it i- ‘.airniry, T. Is is deemed fraudulent, or to use a more appropriate term, criminal, towards the owners.
In Moss v. Byrom, 6 Term Rep. 379. a ship was chartered for a voyage from Liverpool to the Bahamas ami iiack ; on the voj age to Liverpool, she took <>n board biters of marque, merely to entice seamen to enter, but without necessary documents to give them validity ; the master's written instructions were to sail directly to Lin ¡pool : lie. however, cruized for prizes, and fell in with an Ama it an, and plundered her and then captured a French, vessel, and sent her to Bermuda, and followed her there to procure her condemnation : during his stay, his ship was stranded, and cargo bet ; this was bar-ratry, because, the plundering tlie Aim rit an was prejudicial to the owners, and would subject them to loss. The cruising for the purpose of capturing, endangered the property of the owners, by falling in with a superior force. Every cruiser, in time of war, runs a risk of being taken, which risk is foreseen. The loss of the vessel and cargo, iu this case, was not improbable, from such conduct. — In the case before stated, the conduct was such, that no probability of loss could have been conjectured, more in going to Santa Crus, than to Jamaica.
We find, that the act done must be something of a criminal nature committed against the owners. The case of Nutt v. Bourdieu, 1 Term Rep. 323. demonstrates that an unlawful act as it respects others, not owners, does not constitute barratry. However unlawful it was, as it respects the captors in the present case, to recapture, yet it was not a criminal act towards the owners ; or in other words, the tendency of the [13]*13act was not to destroy or injure the property of (he owners, but to preservo it for them, it may tie criminal enough against the captors to warmtif a condemnation. and vet not tie crimina!, or any breach of trust towards t’ne owners ; hut on the contrary, it was done for their benefit, and the probable consequences of the act done must be considered as beneficia!. No case will he found, I trust, in which it has been held to lie barratry, where the act done was done for the benefit of the owners, and the probable consequences were, that it would be beneficial to them. I do not mean to he understood, that where the act done is with a view to the benefit of the owners, it may not be barratry, if the act is unlawful, and the probable consequences are, that injury wit I follow ; or the act is attended with great hazard to the property of the owners, and by that hazard the property is ■lost.
It has been determined, in England, that if a master sails out of port without paying duties, in consequence of which the ship is forfeited, this is barratry. Now, whether this was done for the benefit of the owners, or to say the duties to himself and charge them to the owners, does not appear ; as this kind of fraud is very common in that country, it is most likely this was the real fact; it is direct fraud,land of course barratry. But suppose it was done for the benefit of the owners, yet it is barratry. It was a breach of trust in him, and the natural tendency of the act was loss ; — it was the probable consequence of the act.
In the case of Vallejo v. Wheeler, Cowp. 153. where the master changed his course, and went a voyage to Guernsey for his own benefit only, and the ship was lost, it was held to be barratry. This was criminal to the owners; for without any view to their interest, but to his own only, he endangered their property, as every voyage does ; it was a fraud prac-tised upon them. — But it ought to be remarked, that she was not lost on the voyage to Guernsey, but after she returned, and was pursuing her voyage, as directed by the owners : but barratry having been committed, the insurers were liable. So in tlie case before tiie court, if it was barratry to [14]*14fnc owners, that is, a crime committed against them, then, if the British liad not retaken the vessel, tint she had lo . n destroyed by the perils of the sea, or tempest, on (it-r voy age home, the insurers would be liable. Can .my piT-on conceive they would have been liable in that case ! nay. barratry is a crime punished with great severity : .md d 1 iiis. act was barratry, then the master, if he had arrived .-.-¡ir in port, would have committed a crime worthy of punishment. This is an idea wholly inadmissible. It is true this act of the captain turned out eventually to be against the interest of the owners, by the intervention of a re-capture, an event not foreseen, or probable; at any rate, the rescue of the ship had no tendency to produce the event.
In the case of Phyn v. The Royal Exchange Assurance Company, 1 Term Rep. 505. justice Lanrrnts says, “ he knows of no case where it is said, that the act of the captain is barra-try, because it is against the interest of the owners —“no," says he, “ it must be done with a criminal intent — “ and nothing can be clearer than that this crimina! intent must re speet the owners : it. must be criminal towards them ; and in this sense it ⅛ laid down by the whole court, that: to const! tute barratry, there must be fraud ; and because títere was none intended in that, case, the court held that there was no barratry, although there was a wilful deviation, and no sufFi cient reason why it was made. ;
Sometimes, we find it laid down, that it is never barratry where the act was done with a view to benefit the owners. The jury was so directed by the court, in the case of passing by Marseilles to Genoa; but for this I do not contend. 1 know the courts have determined breaches of trust to be barratry, where the act done was with a view to benefit the owners. I would not, then, be supposed to rely on this opinion, in (be present case : — and no man can read several of the reports, without perceiving that it was the opinion of the judge who tried the causes, that to constitute barratry, the act must be done with a view to injure the owners, or at least, that it would injure them. In the case of Stamma v. Brown, 2 Stra. 1173. lord chief justice Lee says, barratry must be ex maleficio. [15]*15with intent to destroy, waste, or embezzle the goods ; and of course, there appearing no such intent, notwithstanding the injury done, the act was held not to be barratry. A deviation, he says, with a view to burn, sink, destroy, <fce. would he barratry.
But I do not rely on (líese opinions, though frequently to be found; for 1 admit, that although the master has no such object in view as to injure, nay, if lie lias a directly opposite object in view, viz. to benefit the owners; yet if he does art illegal act, the natural tendency of which is to expose to risk the owners’ property, which is now in perfect safety, and the probable consequences of which would be loss, and loss ensues, it is harratry. On this ground, the case of Earl v. Rowcroft, 8 East, 126, can be supported. To risk a trade with the enemy forbidden by law, on a coast where the British constantly keep their cruisers, without the consent of their owners, and where there is no room to presume any, is putting to great hazard their property. This may well be considered a breach of trust, and of course barratry. Lord Ellcnho-rough, in pronouncing the opinion of the court, observes, i: that a disregard to laws by the master, will not constitute the act of barratry, unless they were such laws as the owners relied upon his observing.” It was not the unlawful act of trading with an enemy, that of itself rendered it barratry, fer it. would not have been so, if the owners had directed him so to do ; for in that case, no fraud or imposition would have been practised on them ; but where no such orders were, given, nothing can be more reasonable than to suppose, that they relied upon it, that he would not enter upon, an unlawful traffic, and thus expose their property to such imminent danger, which was safe whilst engaged to a lawful hade.
Is there in this case such a presumption, that the owners relied upon it, that if he, being neutral, with neutral property only, was captured, and on his way to port for adjudication, where experience has taught us there is so much risk of condemnation, he would not embrace an opportunity to rescue their property, if an opportunity presented ⅝ Would they [16]*16consider such an act as an imposition on them, and a breach of trust ? If it is not to he thus viewed, it is not barratry The universal commendations bestowed by owners on tlieii masters, when their property is in this way preserved, and the generous rewards that are frequently given to them Inj sue!) acts, dcmoiv-trate that it i» not. viewed as mi act that i: fraudulent, and done with a criminal intent towards them.
The sense of mankind is better learnt from such transactions, than from any meiaphysk-ul disquisitions, forever unsatisfactory to every man whose mind is nor dirhcncil v.ith scholastic jargon.
Had this vessel arrived sale, would it have entered into the mind of any man. thnt this t-nusaction was barratry : \ criminal, fraudulent act, and a breach.of trust ! And yet. i: was as much so, as if she did not arrive safe. The !me criterion is, as laid down by lord Ellenba>ough, that if the act done was an unlawful act, by which the property was endangered, and smih an one as it was to he supposed 1 1m owners had confidence would never have been dom. o! which they could hot approve, it is barratry ; for it is an ins position on them. But although the act is unlaw lid, although the property is already in great danger, yet may probably be preserved, if the act done is such a# it may be fairly presumed they approve, it is not barratry. 11 any man can conceive, that the rescue of a vessel and cargo proceeding to port for adjudication, belongs !o the fust class, he will consider this rescue as barratry ; hut, if he believes it is an act: which belongs to the second class, however unlawful it may be, he wilt never deem it barratry. If a certain conduct In a master, is generally viewer! by mankind, and especially by owners, as commendable, and meets with general approbation, it would be a strange conclusion, in a particular case, to suppose such conduct in a master, should in that case, be considered a fraud upon them, ami an act of barratry. I appeal to the numerous plaudits bestowed upon auch conduct by owners, so often to be found in news-papers, I appeal to the marry generous rewards bestowed for such conduct. Nothing can be more distant from the thoughts of [17]*17owners, than to condemn ii as fraudulent and barratrous. It is (he very thing, that could access have been had to them, they would have directed : it is the very thing their hearts would have approved of, if il had come to their knowledge; before the re-capture. r-ihaU they now he permitted to treat it as fraudulent, as in the case in 8 East? On the ground that lord Elloihorouf'h <>ut that case, it is to be presumed, that the owners disapproved of such conduct, because it was unlawful, and of cour.-e, il was a fraud upon the owners. The presumption that the owueis disapproved of that, conduct, might be very reasonable, knowing that the trade with the enemy was illicit, and especially, as it respected the articles of trafile. The owners whose property was wholly secure, might have very strong objections to suck -'radc, whereby their property was put to imminent hazard : and had they been consulted, would have forbidden the act. Row very different is this wise ? The property was not safe il was captured; and experience had taught the owners, that condemnation, frequently followed the capture -, so that the hazard of loss was imminent. 'This act delivered ti e vessel and cargo from the danger which (hen impended over it. A. possible and remote hazard of recapture and condemnation still remained, which has ticen realized in this i ase ; tint had the owners been consulted, the presumption is, that they would have sanctioned the act; of course, no fraud could be practised upon them. I therefore, consider the defendants not liable on account of barratry.
It is contended, that whether it is barratry or not, it is a loss against which the insurance is made ; and therefore, on that ground, the insurers are liable. It will be remembered, that this insurance is not binding, unless the warranty of the plaintiffs, that the vessel and cargo were neutral, was complied with ; neither is it binding, unless the insured take care that he do not, by any act, forfeit his neutrality ; if he does, the policy is avoided, and there can be no recovery. There is no evidence but that this property was neutral property. I shall tajie it to be such ; but I hold, that there was a forfeiture of neutrality, by the rescue of the vessel. [18]*18The sentence of condemnation, on that ground, is conclusive evidence of the fact of the rescue ; and this depends upon the question, arc neutral ships bound to submit to visitation and search ? On this subject, I entertain no doubt tiiat they are; — all 1 contend for is, that it is not barratry.
1 find nothing in opposition to (his opinion in the books, except only, an opinion expressed in the case of Saloucci v. Johnson. It must be admitted, that the opinion of the court was, that a neutra! ship is not hound to submit to be searched. They also observe, that a ship is no! bound farther than to notice the taw of nations, and not the particular ordinances of other powers. This observation is doubtless correct; and the sentence in the Spanish court, states, that the ship refused to be searched, and refused with force, having tired on the Spanish ship, contrary to the Spanish cruising orders. The court seem to suppose, that it was not, therefore, by the force of the law of nations, that she was condemned, but. because she violated the cruising orders of Spain ; but if the cruising orders were in conformity to the law of nations, the resistance would be a forfeiture. The judgment in the case of Salottcci v. Johnson, it seems to me, may be correct, without adopting the opinion there adopted by the court, that a neutral is not obliged to submit to be searched. What is the sentence of the Spanish court ? That she had refused to lie searched, and resisted with force, hai ing tired upon the Spanish ship contrary to the cruising orders of Spain. It is not said in violation of her neutrality, or contrary to the law of nations. What is the evidence, which we have, that she refused to be searched, &c. ? The sentence tells us, because she fired "upon a Spanish ship; but is this conclusive evidence of a breach of neutrality ? Does no! the muster's answer repel the conclusion, that being haded under false colours, he «apposed that the Spanish ship was a Harhary corsair ? There is nothing in the sentence to contradict the idea ; and under such circumstances, it could be no breach of neutrality, or violation of the law of nations. An that is said, is, that it was contrary to the Spanish enticing orders. What they were does not appear in the sentence ; and if they were any [19]*19way different. from the law of nations, they wore not binding upon neutrals.
The opinion there given is a solitary one. All the writers that f have seen, recognize the right of search. Grotius and Bynkirshock speak of it as the known law of nations ; and it seems to me idle to say, it being a matter of force, it may he resisted; for although it be a matter of force, yet it must be admitted, that it is lawful force. In all arrests, it is a matter of force ; but to admit the idea, that therefore, the officer who arrests may be resisted, would be to introduce confusion, and subvert all regular government.
On this point, Vatlel, a writer of the highest authority, is decide d. He maintains the right of search in the belligerent, and lays it down as incontrovertible law, that a neutral ship which should resist such visitation, may be seized and Condemned, on that account.
In the case of Garrels v. Kensington, 8 Term Rep. 230. the question is settled, that every belligerent cruiser has a right to visit and search a neutral, and that resistance to it is a forfeiture of neutrality. This is no new opinion, adopted to answer a particular purpose, but one that is perfectly conformable to the ancient and most approved authors on maritime law.
Such, also, is the decision in the case of the Maria, a Swedish vessel, reported in Marshall on Insurance, 311. Vid. 1 Rob. Adm. Rep. 287. A more luminous decision, and supported by more irrefragable arguments, I do not remember to have seen. I conclude, therefore, that the belligerent has a right to visit and search, and use the force necessary ; and it being a lawful force, it cannot he law fully resisted ; and if resisted, it is a forfeiture of neutrality, and a good ground for condemnation ; and by means whereof, the insured having, by their policy, warranted the property neutral, and by their own act, forfeited all benefit from that neutrality, cannot recover on the policy.
The only doubt that has arisen in my mind, in the investigation of this subject, is, whether the right of the belligerent extended any farther than to visit and search ; provided no [20]*20property was found but neutral properly; and the attempt to send into port was of course unlawful. In such case, the point, however, was adjudged in the case of Garrels v. Kensington, w hich was the case of a ship with neutral property, captured and sent into port for adjudication, and rescued from the prize-master and seamen, put on board by the master and crew of Ihe capturing ship, and again re-captured : and for this rescue, the ship and cargo were condemned.
There is a point of light, in which I will endeavour to place this case, which, I apprehend, will demonstrate that the insurers are not liable ; that although the conduct of the master in rescuing this vessel might be considered as barra-try in other cases, it could not he such in this case, as to render the insurers liable. What is the barratry in this case 1 It is agreed, it was the rescue of the vessel ; thus forfeiting the benefit of neutrality, by which means the vessel was condemned. The ground taken? then, is this; the master’s conduct was such, that he forfeited the benefits of neutrality. This was an unlawful act, and the very one by which the owners lost their property; and of course, barratry. It is on this ground that it is contended, and it is the only ground Upon which it can be contended, that the insurers are liable. We will for a moment advert to the policy. Upon wrhat condition do the insurers warrant against the hazards mentioned in the policy ? On this, that the insured warrant, that their vessel and cargo are neutral, and that nothing shall be done that shall forfeit that neutrality ; for this is implied in all warranties, that the property is neutral; and if an act is done that forfeits this neutrality, the insurers are discharged. And here the very thing is done, ⅛. the rescue of the vessel, which forfeits the benefits of neutrality ; and thus, the insurers are discharged. The same thing which it is con tended is barratry, and subjects the insurers, is the verj thing which, by the policy, it is agreed shall discharge tin insurers. What is the language of the policy in the mouthy of the parties ? Is it not this; say the insurers to the insured we will subscribe the policy, and insure against, the hazards there named, provided you will engage, that the ship and [21]*21her cargo is neutral, and that no act shall he done which tbrfeils her neutrality. The insured answer to this, vve agree; and the insured, accordingly, engage in the policy, that if anv act is done, which is a forfeiture of the vessels’ aeutialitv, they v ill have no claim against the insurers. An act is done which is a forfeiture of neutrality ; yet the insured claim against the insurers; because they say, that this act is ban-airy, against which the insurers insured ; or ip other words, it is true we agreed never to call upon you, if a certain cveut took place. That event has taken place, and wc call it barratry, and you are liable. Nothing can he more absurd than to suppose the parties contemplated the forfeiture of neutrality, as the barratry insured against; for ttii^ would be to suppose, that they had agreed that the insurers should not be liable, if there was a forfeiture of the neutral character ; and at the same time agreed, that in that event, they should be holden. From the nature of these warranties, on the part of the insured, they are conditions precedent. No liability attaches on the insurers, unless these warranties are sacredly performed. It was, therefore, absolutely necessary, that the vessel and cargo should be neutral, md that this neutral character be preserved, or the insurers were not liable. The language of the policy, most manifestly is, in the mouth of the insurers, if you the insured, warrant the vessel and cargo to be neutral, and that she shall preserve her neutral character, we insure against barratry ; but if you do not do this, we will not be liable. To this the insured agree, and put it on that ground, that ship and cargo arc neutral, and will preserve a neutral character. Can it be conceived, that when she forfeits her neutral character, this is the barratry insured against Í If it is, then the law is so, that the very act which releases the insurers from all liability, is the act which renders' them liable.
>5«.award, J. concurred in the opinion of judge Reeve.
New trial not to be granted.