Francis v. Ocean Insurance Co.

6 Cow. 404

• Court: New York Supreme Court
• Decided: October 15, 1826
• Status: Published

Opinion

Curia, per

Sutherland, J.

The defendants waived whatever imperfection there may have been in the preliminary proofs of the plaintiff’s interest in the subject insured, by not putting their refusal to pay upon that ground. They declared, “ that they would not settle the claim in any way putting their objection to pay on the merits of the case, and not on any defect in the proof of the plaintiff’s interest. If that ground had been taken, the defect might, and undoubtedly would have been supplied. (9 John. 192. 7 John. 315. 8 John. 307.)

But this point was not much insisted upon by the defendant’s counsel; and is clearly incapable of being supported.

It is objected, 2. That the answers of capt. Garrick, to the 11th and 12th interrogatories, ought not to have been admitted in evidence. The interrogatories do not form a part of the case ; but it must be assumed that the answers are responsive to them ; not going essentially beyond the scope of the enquiries made. If so, it appears te me the objection comes too late. It should have been made to the interrogatories. They are settled by a judge, or other officer possessing the powers of a judge, upon due no-*'ce> a^er a CCW has been served upon the opposite party. If improper, they may be excepted to, and the exception will either be sustained or overruled by the judge ; and the interrogatories modified or established accordingly. (1 Dunl. Pr. 546.) If no objection is made to the interrogatories, the information sought by them is admitted to be proper, and the answers must be considered as competent evidence by the admissions of the parties.

Even in oral examinations at nisi prius, if a party will permit questions to be put to a witness without objection, and take his chance for a favorable answer ; when that answer is given, and proves adverse to his wishes, it is too late for him to object that the question ought not to have been put.

Rut although the answers are not to be struck out of the case as incompetent evidence, they are to be restrained in their effect to matters of fact, and not to settle questions of law. When the witness says that the voyage, as far as his knowledge went, was a fair and lawful voyage ; that the vessel was regularly cleared out from Mid-dletown ; and he knew nothing of any illicit transactions on the voyage ; and that she was not engaged in any illicit trade while he commanded her ; he must be understood as speaking merely to the bona Jides of the object of the voyage, and the conduct of the master ; and not as determining, or attempting tp determine, whether the transactions which are proved to have taken place, did, ia judgment of law, amount to an illicit trade, or an attempt to carry on an illicit or prohibited trade, or not.

It is objected, in the 3d place, that parol evidence ought not to have been admitted of the contents of the paper obtained from the British consul at New-York, allowingthe master to complete his crew from foreign seamen, a sufficient number of British not being obtainable. This objection is unfounded. The paper is shown, by the testimony of Charles Francis, to have been delivered to his brother Thomas, the supercargo of the vessel, (who died in 1821,) immediately before she sailed. He further testifies that the vessel sailed w ith it ; and that it was taken possession of by the captors. The affidavit of Sayre, the seizing officer, shows that all the papers taken from the vessel were delivered to the court of vice admiralty at Antigua ; and the sworn certificate of Wrn. Ramsay, the registrar of that court, shows that he has returned certified copies of the papers and proceedings in that court. The paper in question not being among them, the presumption is, that it is not in the office at Antigua. This is sufficient evidence of its loss, to admit parol proof of its com tents.

These, however, are very subordinate points. Having disposed of them, we now proceed to the consideration of the important questions presented by the case. And, 1. It is contended that the assured, being a British subject, and his vessel having been condemned by a British court, cannot recover for an act done by or under the authority of his own state. There is a class of English cases, which hold this doctrine in relation to the legislative acts of a government; but no case has been furnished by the counsel, and none has been found by the court, in which the principle has been extended to the decisions of courts of justice.

In Touteng and another v. Hubbard, (3 B. & P. 291,) the plaintiffs, being Swedes, and owmers of a Swedish vessel, in December, 1800, agreed with the defendant, a British merchant, that the vessel should, with all convenient speed, sail and proceed to the island of St. Michaels; and there receive from the agents of the defendant a cargo of fruit in boxes, return with the same to the port of London, and there deliver her cargo, at a stipulated price per box. After the vessel had proceeded from London to Ramsgate harbor, and before she could be got to sea, to wit, on the 15th of January, 1801, an embargo was laid by the British government upon all Swedish vessels; by which she was detained in port until the 19fA of June following, when the season for shipping fruit at St. Michaels was over. The defendant gave notice to the plaintiffs that they need not then proceed on the voyage, as no cargo would be furnished at St. Michaels. The action was to recover damages from the defendant, for not employing the vessel according to his agreement. And it was held by the court that the action could not be sustained. Lord Alvanley, in delivering the opinion of the court, says, the ground on which the court decide this case is, that a British merchant is not liable to answer for any damages, which the owner of a foreign vessel may sustain, from an embargo laid by the British government on foreign ships, in the nature of reprisals and partial hostility. He concedes that a common embargo does not put an end to any contract between the parties, but is to be considered as a temporary suspension of the contract only; and admits the principle of the case of Hadley v. Clarke, (8 T. R. 259,) that a general embargo is a circumstance against which it is equally competent for the parties to provide, as against the dangers of the seas; and if they do not provide for it, they must abide by the consequences of their contract. But he takes a distinction between an embargo imposed for general purposes, and an embargo directed against the vessels of a particular nation, in the nature of partial hostilities ; and he says, this embargo not only partook of the nature of hostility, but it was in the nature of hostility by the government of Great Britain, of w hich the defendant is a subject, where the charter party was entered into, and in the courts of which the Swedish captain now seeks compensation. And he held that it would be de^ fearing the object of the government, which wTas a species of reprisal on Sweden, to compel a British subject to indemnify a Swede against the acts of the British government, intended to resist the injustice of the Swedish court; and would be enabling a foreigner to defeat all the effects of the British embargo, and throw the burthen upon a British subject. In the conclusion of his opinion, he says all the cases admit, that where a party has been disabled from performing his contract by his own default, it is not competent for him to allege the circumstances by w'hich he, Was prevented, as an excuse for his omission ; and he asks, may not the loss which the present plaintiffs have sustained, be considered in a political point of view, as arising from their own default ? Must not every subject of the Swedish state be answerable for what we must consider gs an act of aggression on the part of his sovereign ? Here the voyage has been defeated by an act of the British state, to which all his majesty’s subjects are parties, occasioned by an act of the Swedish court, to which all the subjects of Sweden are parties.

In Conway v. Gray, and several other cases substantially like it, (10 East, 538 to 549,) the question came before the court of king’s bench, how far the citizens of a country are to be considered as participating in, and assenting to the acts of their government, where those acts are brought to bear upon individual contracts. , They were cases arising under oúr embargo law of the 22d of December, 1807. Conway and Davidson, the plaintiffs, in the principal case, were the consignees of J. Townsend, a merchant in New- York, who, on the 23d of December, 1807, shipped on board a vessel a quantity of wheat and peas, consigned to Comvay and Davidson, at Liverpool. The embargo was first known in New-York, on the 25th of December, before the vessel sailed, by which the voyage was, of course, broken up. The plaintiffs having been advised by Townsend of the intended shipment, on the 25th of January, 1808, effected an insurance upon it, with the defendant; and charged the premium to the account of Townsend. As soon as the plaintiffs heard of the detention, they abandoned to the underwriters ; and brought their action : and the principal question was, whether the American embargo would warrant an abandonment by, or on behalf of an American subject, against an English underwriter. The court of king’s bench held, that the plaintiffs could not recover; and lord Ellenborough, in delivering the opinion of the court, remarks, that “ in all questions arising between the subjects of different states, each is a party to the public authoritative acts of his own government; and on that account, a foreign subject is as much incapacitated from making the consequences of an act of his own state, the foundation of a claim to indemnity upon a British subject, in a British court of justice, as he would be, if such act had been done immediately and individually by such foreign subject himself. In these cases,” he continues, “ the foundation of the abandonment is an act of the American government. Every American subject is to be considered as a party to that act. It has virtually the concurrence and consent of all; amongst the rest, the concurrence and consent of the assured in these cases. They have, therefore, joined in a resolution, that the ship in question shall not be allowed to sail; but shall remain in their port: and is it possible for them afterwards, to make their not sailing, the foundation of an action ? The party who, himself, prevents the act from being done, has no right to call upon the underwriters to indemnify him against the loss he may sustain from such act not being done.”

This doctrine was reiterated in a series of cases which arose in 1812, under the system then pursued by the British government, of granting licences to trade with the Continental powers, with most of whom they were at war.

In Mennett and another v. Bonham, (15 East, 477,) and Flindt v. Scott, (15 East, 525,) the licences were granted to British merchants, on behalf of themselves and others. The real parties for whose benefit they were obtained, were Russian subjects, and alien enemies residing in Russia. The goods were insured in England. They were seized and condemned in a Russian port, by the Russian government; and it was held that the Russian assured, notwithstanding the license, could not recover from a British underwriter, a loss occasioned by the aet of his own government ; on the ground that, in judgment of law, he wa3 a party to that act. The latter case of Flindt V. Scott, was subsequently reversed in the exchequer chamber ; (5 Taunt. 674;) and though the doctrine which we are now considering was not formally overturned, it was spoken of by the only baron who delivered an opinion, (baron Thomson,) in terms, which show that he did foot consider it as settled ; and that it by no means received his approbation. He says, “ the second objection made to the plaintiff’s recovering in this ease, was, that the underwriters were not answerable for this loss, because it was occasioned by the act of the Russian government, to which the persons interested must be supposed to have given their assent, being, Russians; and in support of that position,” he continues, “ two eases were cited, Touting v. Hubbard, and Conway v. Gray.” And after stating the circumstances of the first case, and that the question which it presented was, whether the Swedish owner acquired a right by proceeding on the voyage after the embargo was taken off, to recover the freight against a British merchant, he says, “ the court determined that he had no such right; and they went farther ; and determined, what was not then a question before them, that an insurance, upon the property of a foreigner, against a loss remotely occasioned by an act of his own state, would be illegal. It was not the main question in that case, though certainly it was so decided. The case of Conway v. Gray, proceeded, in a degree, on the authority of Touteng v. Hubbard. But these decisions,” he remarks, u even supposing them to be correct, as applied to the cases in which they were made, do not affect the present case.” No doubt can be entertained from these expressions, that the ch. baron meant to be understood as questioning the correctness of those decisions ; and that if they had stood in the way of a reversal of the judgment then under consideration, they w'ould have been overturned. He adverts with approbation, to the more liberal doctrine held by lord Ellenborough in Usparicha v. Noble, (13 East, 332.)

Lord Ellenborough, himself, in the more recent case of Simeon v. Bazett, (2 M. & S. 94,) seems to have been anxious to get around, without directly subverting his previous decisions upon this point. That was the case of an insurance effected in London, upon the ship Sophia, at and from London to any port of ports in the Baltic or gulph of Finland, &c. The insurance was made by the order, and on the account and risk of certain Prus~ sian subjects, resident at Colberg, in Prussia, who were avowed to be the parties in interest. The ship sailed from London to Colberg, carrying simulated papers, as was the custom of the trade ; and bearing the Swedish flag. The ship and cargo having arrived near Colberg, were seized by certain persons exercising the powers of government in Prussia, and were finally confiscated by order of the Prussian government. Prussia had, at that time, acceded to the continental system of the emperor of France ; but was at peace with England. One would think that no ease could well have been presented, which would call more loudly upon a British court, for the application of the doctrine, that every citizen or subject must be considered a party to the authoritative acts of his government; and that the Prussian assured, residing in the very place where the seizure and confiscation were made, would not have been permitted to make his own wrongful act, if the act of his government be his, the foundation of a claim against a British underwriter in a British court. But lord EUenborough held that he was entitled to recover, on the ground that, from the well known course of the Baltic trade, (all direct intercourse between those ports and Great Britain being prohibited,) the peril in question must have been within the contemplation and meaning of the parties. And he thus qualifies the doctrine of the previous cases: “ The exclusion of risk occasioned by the act of the assured’s own government, is only an implied exclusion from the reason and fitness of the thing ; which, however, may be rebutted by circumstances. As the perils occasioned by the act of the party’s own government, are held tobe excluded on the reason of the thing; so they may be held to be included whenever the reason of the thing requires it.” If I understand this gloss, it is neither more nor less than that there is no settled rule of law upon this subject; but that each case must be decided according to the view which the court may take of its intrinsic equities. In determining the equity of such a law, I presume his lordship would Rare given no weight to the circumstance, that the assured, when the act of his government which is complained of took place, was in another hemisphere ; or if at home, that he solemnly protested against it. This case also came before the exchequer chamber, upon a writ of error, (5 Taunt. 824.) The judgment was affirmed on the broad ground, that it was no objection to the plaintiff’s recovery, that the loss happened by the act of the country of the assured. And chief baron Thomson, who again delivered the opinion of the court, pointedly disclaims being governed by the distinctions taken by lord Ellenborough ; and explodes the whole doctrine in this emphatic manner: “This was precisely one of the points disposed of in the case of Flindt v. Scott ; that the loss was by the act of the country of the assured. I very imperfectly expressed myself in that judgment, if I did not express that which the whole court certainly decided, unless I misunderstood them, that it was no objection to the plaintiff's recovery, that the loss happened by the act of the country of the assured. It was argued on, and the court certainly took it into their consideration, and we cannot hear it argued again now. It may have happened, that the court of king’s bench have given judgment below for the plaintiff in this action, on a different ground ; but the facts support the judgment upon our reasons.”

The contract of insurnce is peculiarly one of equity and good faith; and I should regret to see it subjected to so technical and fanciful a rule of construction as that which we have been considering. All the cases admit, that detention by an embargo, or other act of any other government than that of the assured, is one of the perils covered by the ordinary policy, and is good ground of abandonment. That an embargo by the government of the assured is as much within the actual contemplation of the parties, as an embargo by any other government, cannot be questioned ; nor that the citizens of a country have no actual participation in the acts of the government, in any Sense which would make it a violation of good faith to permit them to make those acts the foundation of a claim against a foreign underwriter. It strikes me as unworthy of the advanced intelligence of the age, and of the enlightened condition of its jurisprudence, to suffer the symmetry of so important a department of the commercial law, to be broken in upon, on the strength of a notion so purely theoretical. This is the first time, I believe, in which this question has come before an American court ; and I have, for that reason, dwelt upon it longer than was necessary, for the purposes of the case which we are now deciding.

But, admitting the doctrine of lord Ellenborough to be sound, I am not aware that it has ever before been contended, even in argument, that every citizen of a country is a party to all the judgments pronounced by its courts. The principle has never been attempted to be extended to any other than legislative acts, or acts of state ; such as embargoes or confiscation founded upon state ordinances.

The assured, therefore, is not so far a party to the proceedings of the court at Antigua, as to preclude him from making those proceedings, if unauthorized and illegal, the foundation of a recovery against the defendant.

I do not deem it material to determine, whether it is incumbent on the plaintiff, in the first instance, to impeach the judgment and proceedings of the court at Antigua ; or whether the burthen of sustaining them is imposed upon the defendants. The evidence on both sides is before the court. I apprehend, however, that the sentence of condemnation, with the accompanying proceedings, so far as they disclose the causes of condemnation, are prima facie evidence of the existence of those causes, as well as of the authority of the court to pronounce the sentence-; and impose the onus of impeaching, either the jurisdiction of the court, or the regularity of its proceedings, or the existence of the facts upon the assumption of which the decree has been pronounced upon the opposite party.

In Church v. Hubbart, (2 Cranch, 187,) the policy contained a condition similar to the one in this case, that the insurers were not to be liable for seizure by the Portuguese for illicit trade. The vessel was seized and condemned by the governor of Para, professing to exercise the pow* ers of a court of admiralty, for an attempt to carry on an illicit trade with that port; that is, for a violation of its municipal laws. The defendant there produced the decree, as evidence that the condemnation was for the cause excepted from the policy. The objection was, that the decree was not properly authenticated; and that objection was sustained by the court. But it was not denied that the decree, if properly proved, would have been evidence of the grounds of condemnation, so far as they appeared on the face of the decree. The sentences of foreign admiralty courts have always been received in our courts as pri-ma facie evidence against the assured. (2 John. Cas, 287, 481-5.)

But the condemnation, in this case, is impeached by the plaintiff, on several grounds : and

1. It is contended that it appears from the libel, that the seizure was made upon\the high seas ; not as prize of war; but for a violation of the municipal laws of Great Britain; and that the right to seize for a violation of those laws, is confined to the territorial dominions of the government making it. This opinion was expressed by Ch. J. Marshall ; and, as he supposed, it was concurred in by a majority of the court, in Rose v. Himely, (4 Cranch, 279.) But the contrary doctrine was finally established by the supreme court of the U. States, in Hudson v. Guestier, (6 Cranch, 283.) The seizure was there made for a violation of a municipal regulation in relation to the island of St. Domingo, at the distance of six leagues from the island ; and confessedly, of course, beyond its territorial limits or jurisdiction. The only question in the case was, whether the seizure was warranted by the law of nations ; and the whole court, (with the exception of the Ch. J.) held that it was, and overruled the case of Rose v. Himely, so far as it conflicted with that opinion, The same doctrine had been previously advanced by that court, in Church v. Hubbart, (2 Cranch, 234, 5, 6,) where the seizure was made five leagues from land, These aqthorities dispose of this objection.

But admitting the general rule to be as contended by the counsel for the plaintiff; that a seizure either of persons or property, for a breach of a municipal regulation, cannot be made beyond the territorial limits of the government making it ; it applies only to persons, not citizens or subjects, and property not belonging to citizens or subjects of that government. That it is competent for the sovereign authority of a country to authorize the seizure of its citizens, or of their property, for a violation of its laws, wherever they can be found, provided the jurisdiction of other nations is not interfered with, is a proposition too clear to require support or illustration. The high seas are the common property of all nations, where each has concurrent, and none exclusive jurisdiction. The sovereign authority of any country, therefore, may arrest its own subjects, or seize their property upon the high seas, without infringing the jurisdiction, or interfering with the rights of any other country. The seizure in this case was of a British vessel, sailing under a British flag, belonging to a British subject, for a violation of British municipal regulations or navigation laws.

Upon either of these grounds, this objection cannot be sustained.

But it is contended, secondly, that admitting the legality of the seizure, there is no sufficient evidence that the vessel had been engaged in an illicit trade ; that the court, in making the condemnation, did not act in the capacity of a court of admiralty under the law of nations; nor was the condemnation for any violation of that law; but for a breach of the statute law of Great Britain; “of some or one of the laws relating to trade and navigation,” as it is expressed in the decree of the court. That it was incumbent on the defendant, therefore, in order to sustain the decree, to prove the existence of a law condemning the trade. This objection, as far as it goes, appears to me unanswerable. The warranty in the policy, against any “damage, charge or loss which may arise in consequence of a seizure or detention for, or on account of any illicit ,or prohibited trade,” extends only to that risk to which «such trade is by law exposed. To constitute a breach of such warranty, the seizure must be for an actual, illicit and prohibited trade. A seizure and condemnation under pretext of such trade, is not sufficient, if the trade is not in fact illicit. Both a seizure and illicit trade must concur ; and the illicit character of the trade is not proved merely by the fact of the seizure. (Johnson v. Ludlow, 1 Caines’ Cas. Err. xxix. Graham v. The Penns. Ins. Co. 1 Marsh. 347, note.)

In Smith v. The Del. Ins. Co. (3 Serg. & Rawle, 74,) the action was upon a policy containing a warranty or exception similar to this. The vessel was seized and condemned, for a cause, as it was contended by the defendants, within the warranty or exception. Ch. J. Tilghman, (p. 82,) remarks, “to bring the case within the Warranty, there must be both a seizure and an illicit or prohibited trade. It is not enough that a seizure is made on an allegation of prohibited trade. It must be proved, that there was a prohibition, and that the case is within it. So in Church v. Hubbart, (2 Cranch, 236,) Ch. J. Marshall, in speaking of this warranty, says, “ that the exclusion from the insurance, of the risk of illicit trade, is an exclusion only of that risk to which such trade is by law exposed, will be readily conceded. It is unquestionably limited and restrained by the terms illicit trade. No seizure not justifiable under the laws and regulations established by the crown of Portugal, for the restriction of foreign commerce, with its dependencies, can come within this part of the contract. And every seizure which is justifiable by those laws and regulations, must be deemed within it.” In Smith v. The Del. Ins. Co. the condemnation Was alleged to have been for a breach of the 3d and 4th articles of a decree of the emperor Napoleon, of the 6th of August, 1807. Those articles were accordingly read upon the trial, on the part of the defendants. Whether they were read by consent, without proof, or how they were proved, does not appear ; nor is it material. The material fact is, that it was deemed necessary to produce upon the trial, the law' under which the condemnation was made; that the court might judge whether it authorized the condemnation or not; and they held that it did not. In the case of Church v. Huhbart, same coursft was pursued. The case states, “ that the defendant, to prove that the trade was illicit, offered a copy of a law of Portugal, entitled, &c. ; and to prove that the vessel was seized for illicit trade, the defendant produced a paper purporting to be a copy of the sentence of the governor of Para, on the brig Aurora.” Ch. J. Marshall thus states this part of that case : “To prove that the Aurora and her cargo were sequestered at Para, in conformity with the laws of Portugal, two edicts and the judgment of sequestration have been produced by the defendant in the circuit court.” And the judgment in that case was reversed solely on the ground, that those edicts and that judgment were not properly proved.

These cases seem fully to establish, 1. That to show any particular trade to be illicit, under municipal regulation, the law by which it is prohibited must be produced and proved ; and 2. That it is the business of the defendant to sustain the sentence by proving the law. -

In the case at bar, there was no attempt to prove any law of Great Britain prohibiting the trade in which the ship Francis was engaged when seized at Antigua. So far, therefore, as the sentence of condemnation proceeds on the ground of illicit trade, it must be deemed to have been unauthorized and illegal.

The decree itself does not specify the grounds on which the condemnation is pronounced. It merely alleges, that “ it is for a breach of some, or one of the laws of navigation.”

The libel states four grounds on which the seizure was made : 1. For importing goods, &c. on board the vessel, she not being wholly owned by a subject of Great Britain, and navigated by a British master and § British mariners. 2. For importing into Antigua certain prohibited goods, &c. of the growth, production and manufacture of Europe, &e. 3. That the. ship had undergone repairs in the U. S., not necessary, by reason of extraordinary damage, &c. exceeding 15s. for every ton ; whereby she became an alien vessel; and being such alien vessel, imported the goods, &c. being prohibited, &c. 4. That certain enumerated articles particularly named, were imported in the vessel by way of merchandizes, from one of the ports of the U. S. of America, against the form of the statute, &c.

Upon which of these causes the condemnation proceeded, it is impossible to determine. If but one cause had been alleged in the libel, the decree might be supposed to have intended to adopt and verify that. The causes assigned are, however, not only various, but inconsistent. The remark is alike applicable to them all, that they make the cause of seizure a violation of some British statute; and the fact of condemnation is the only evidence, not only of the breach, but of the existence of such statutes. Ch. Justice Marshall, in Church v. Hubbart, (2 Crunch, 236,) in discussing this subject, remarks, that foreign laws are well understood to be facts, which must, like other facts, be proved to exist, before they can be received in a court of justice. The principle, that the best testimony shall be required which the nature of the thing admits of; or, in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws, as it does to all other facts. The sanction of an oath is required for their establishment, unless they can be verified by some other such high authority, that the law respects it not less than the oath of an individual. In Robinson v. Clifford, (2 Marsh. 706 a. note,) it is said, “ The statute or written law of foreign countries, should be proved by the law itself. The unwritten law may be proved by witnesses.” (Seton v. The Del. Ins. Co. 2 Marsh. 706 a. note. 2 Caines' Rep. 155, 163. Delafield v. Hand, 3 John. 310. 2 Marsh. 713. Smith v. Elder, 3 John. 105. 1 P. Wms. 431. Peak. N. P. Cas. 18. 3 Esp. Rep. 58. 4 id. 79.) This evidence is addressed to the jury; and should be given upon the trial, and not at bar.

But it is said that the description of the vessel in the policy, as the British brig, &c. is an implied warrantv that she was a British vessel, and should carry with her the' documents necessary to establish that character ; and that if the warranty is false, the plaintiff cannot recover, whether that was the cause of condemnation or not.

Admitting that a description which, in time of war, will amount to a warranty of the national character of a vessel, will in time of peace amount to a warranty of her commercial character, (which may admit of very serious discussion,) it is a sufficient answer, that the evidence in the case, clearly establishes a compliance with this implied warranty. The testimony of Charles Francis shows that the vessel, at the time of her sailing, had on board a certificate or document from the British consul at New-York, dispensing with the usual proportion of British seamen. This document undoubtedly went, into the possession of the captors, with the register and other papers belonging to the ship; and removes all objection to the character of the Vessel, growing out of her deficiency in British seamen,

The evidence in the case also shows that the repairs put upon the hull of the vessel at Middletoion, cost less-than 15s. for each ton.

It cannot be necessary for the master of a vessel to carry with him the evidence of the amount expended upon his vessel. If the fact be, that the repairs cost less than 15s. per ton, he has a right to rely upon the knowledge of that fact, and to presume her national character will not he impeached, without some evidence that she has violated the navigation law's in that respect.

Admitting it to have been the duty of the supercargo to have appeared and interposed a claim to the vessel, his omission to do it is sufficiently accounted for. It is showm to have been ow'ing to the irregular proceedings of the court, and not to any culpable omission on his part. He attended at the time and place appointed for trial; and was informed that the vessel had already beén condemned at the judge’s chambers. (7 John. 426, 514,).

I am, therefore, of opinion that ffie plaintiff is entitled to recover as for a total loss. The cases of Watson v. The Mar. Ins. Co., (7 John. 57,) Maggrath v. Church, (1 Caines, 215,) Jumel v. Mar. Ins. Co., (7 John. 425,) and M'Bride v. Mar. Ins. Co. (5 John. 299,) seem to show that he is also entitled to recover all the expenses fairly incurred in obtaining a restoration of the proceeds of the vessel, unless the freight and cargo also belonged to him; in which case those expenses would be the subject of general average in the first instance. (7 John. 425.)

Judgment for the plaintiff