Marshall v. Union Ins. Co.

16 F. Cas. 851, 2 Wash. C. C. 452

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1810
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(charging jury). It is certainly the duty of the-master, to put in a claim for his owners, and their claim upon the underwriters may possibly, under certain circumstances, be affected by a neglect of the master to do so. But in this case, the letters of the captain to his owners calling for duplicates of the papers, of which the first privateer that brought him to had deprived him, proves that it was his intention to file a claim; and his omission to do so may fairly be attributed to his death, which took place before the sentence. As to the charge of illicit trade, there is not the slightest evidence of it; the letter of Mr. Lenox, the consul of the United States at Jamaica, stating this, not being to be regarded by the jury. As to the want of proper papers to prove the neutrality of the property, the charge is unsupported, and the contrary is sufficiently established.

The important point is, whether the goods imported by De Lastre, and mentioned in the bill of parcels from Cazenove to Marshall, were bona fide sold to the plaintiff? Cazenove swears that he purchased them from De Lastre, and sold them to Marshall, and received payment; and this is corroborated by the bill of parcels, with Cazenove's receipt for the money. In opposition to this, the defendants rely upon circumstantial evidence, which, if sufficiently strong to convince your minds that this was a fraudulent transaction, ought not to have the less weight because it is not positive and direct. The circumstances principally relied upon, are, the hind of goods — not such as could be intended for sale, but such as were suited to the condition of a man of fortune and high station; that they are the very goods brought in by him to New-York, and which were exported in the same vessel which was to convey him to Carthagena. Secondly. As a proof that Marshall acted as a mere agent, he charged 2y2 per cent, commission at the foot of the invoice. Thirdly. The irregularities at the custom-house. Fourthly. Cazenove has produced no bill of parcels, receipt or other document whatever, showing that he purchased these goods from De Lastre. Lastly, and principally. The oaths taken at the custom-house by Cazenove and Marshall, in which they describe these goods as delivered by one, and received by the other, contrary to the prescribed form, which should have stated them as sold by Caze-nove, and purchased by Marshall. It is for you to say, if these circumstances are sufficiently weighty to overpower the positive evidence in the cause. If this was in fact belligerent property, covered by Marshall, the owner of the vessel and cargo, this will avoid all the policies, upon the ground of concealment; because it exposed the whole to the hazard of confiscation, and most certainly to seizure, detention, and expense, affording to the insured an opportunity to throw the whole on the underwriters. If any of the articles put on board by Marshall were the property of De Lastre, and were not’ covered as belonging to the plaintiff, (which it was contended by the defendants’ counsel was the case of the box of books,) this might also be material to the risk, by inducing seizure, a carrying in for examination and adjudication, though finally, a condemnation of more than the belligerent property could not have been justified. As to the materiality of this fact to the risk insured, you are to decide; and the court has only to inform you, that the concealment of a material fact avoids the policy.

Yerdict for defendants.