Clinton, Senator.
In order to arrive at a just decision in this case, it is proper to consider it in two points of view. 1. Whether the word sea-letter has the precise technical meaning in law, with the document produced by the plaintiffs ? and, 2. If it has not, whether the doubts that may arise on this subject ought to be satisfied, or explained away by parol testimony ?
In Marshall, (page 317.) a distinction is made between a 'passport and sea-letter. The former is defined to be a permission from a neutral state, to a master of a ship, to proceed on the voyage proposed, and usually contains his name and residence, the name, description, and destination of the ship, with such other matters as the practice of the place requires. This document he describes as essentially necessary for the safety of every ship. The sea-letter, according to him, specifies the nature and quantity of the cargo, the place from whence it comes, and its destination, and is not so necessary as the passport
It has been the policy of the United States, in common with'other commercial nations, to encourage their own ships. Our navigation act enumerates and describes certain vessels, and emphatically denominates them ships or vessels of the Unit:d States. Their distinguishing characteristics are, that they are built, owned, and commanded by citizens of this country. They are registered with the collector, and are entitled to a certificate, called a register. The register is of itself considered a Competent docu-rnent, to prove the ship American; and would, in most cases, serve as a sufficient protection against capture. But cases occur, wherein this register is not granted to vessels owned by citizens of the United States. The principal case is where the vessel is built out of the country. In such case, the collector cannot grant a register; but it being proper and necessary, that the owner should have some document to protect his property against the rapacity of cruisers on the ocean, and to establish his neutrality, a formula has been devised, and is granted, called a certificate of ownership. With a view to the encouragement of ship-building in this country, a discrimination is-also made in the duties of tonnage. Ships of the United States pay at the rate of 6 cents per ton; ships built with[545]*545In the United States after a certain period, but belonging wholly, or in part, to foreigners, 30 cents per ton ; and all other ships, 50 cents' per ton. Hence, under both heads, of ownership and the place of building, all vessels are considered, by our laws, under four distinct views. 1. Vessels of the United States. 2. Vessels built in the United States, owned by foreigners. 3. Vessels built out of the United States, owned by citizens. 4. Vessels built out of the United Ssates, owned by foreigners.
Vessels of the first and third classes, being ow-ned by citizens, are entitled to the protection of the government. The second and fourth classes, being owned by foreigners, cannot receive any documents, which would, in the least, protect them from capture. To encourage onr own ship-building, vessels of the United States pay but a small duty of 6 cents. Vessels built, and owned here, by foreigners, pay a duty of 30 cents; and, if pur citizens will go into foreign countries to build, or to purchase vessels, they are put on the same footing as foreigners, owning foreign vessels, with regard to the rate of duties, although as citizens, they have a right to demand the protecting hand of the government,'for their property. Hence arises the division of vessels owned by citizens, into two [*]classesr vessels of the United. Stales, or registered vessels, and vessels belonging to the citizens of the United States, certifi~ cated, but not registered. The owners of the latter description of vessels, considering this certificate of ownership as a sufficient shield for neutral property, denominated it a sea-letter ; and it may have obtained that appellation at the time our first navigation act was passed, which was in the year 1789, some years before the letter from the secretary of the treasury, set forth in the bill of exceptions, was written. This term was, at a subsequent period, engrafted into our statute book, as I shall pre* sently show.
[546]*546lit the year 1793, when a general war was kindled Ifl “Europe, the President of the United States, in order that ©ur vessels might enjoy the benefits stipulated by treaties, and be generally protected against the depredations of the belligerents, ordered documents to be furnished from the custom-houses, to all ships and vessels belonging to ci-lizens of the United States. This document is denominated, in the letter of the secretary of the treasury, a_sea* letter, and is the formula of the passport adopted in the treaties, and was given to certificated, as well as to re-1 gistered vessels. This was a mere executive regulations unauthorized by any existing statute, and so it continued} until the 1st of June, 1796, when an act was passed, directing the-secretary of state to prepare a form, which, when approved.of by the President, should be deemed the form of a passport, for ships and, vessels of the United States. The form adopted, was the same as described in the treaties. It was so consiructed, in order that we might have the benefit of those treaties. The passports exhibited by the plaintiffs, were issued subsequent to 1796j and although conformable to the formulas prescribed in the treaties, they emanated from this statute. And here two remarkable circumstances occurred ; the term sea-letter in the treaties was dropt in the statute, and the word passport adopted; and the passport was only authorized to be granted to registered vessels. This must have been considered as a negation of the right of the executive, heretofore exercised, of granting passports to certificated vessels. Hence the certificate of American ownership, being their only guard, this certificate
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Clinton, Senator.
In order to arrive at a just decision in this case, it is proper to consider it in two points of view. 1. Whether the word sea-letter has the precise technical meaning in law, with the document produced by the plaintiffs ? and, 2. If it has not, whether the doubts that may arise on this subject ought to be satisfied, or explained away by parol testimony ?
In Marshall, (page 317.) a distinction is made between a 'passport and sea-letter. The former is defined to be a permission from a neutral state, to a master of a ship, to proceed on the voyage proposed, and usually contains his name and residence, the name, description, and destination of the ship, with such other matters as the practice of the place requires. This document he describes as essentially necessary for the safety of every ship. The sea-letter, according to him, specifies the nature and quantity of the cargo, the place from whence it comes, and its destination, and is not so necessary as the passport
It has been the policy of the United States, in common with'other commercial nations, to encourage their own ships. Our navigation act enumerates and describes certain vessels, and emphatically denominates them ships or vessels of the Unit:d States. Their distinguishing characteristics are, that they are built, owned, and commanded by citizens of this country. They are registered with the collector, and are entitled to a certificate, called a register. The register is of itself considered a Competent docu-rnent, to prove the ship American; and would, in most cases, serve as a sufficient protection against capture. But cases occur, wherein this register is not granted to vessels owned by citizens of the United States. The principal case is where the vessel is built out of the country. In such case, the collector cannot grant a register; but it being proper and necessary, that the owner should have some document to protect his property against the rapacity of cruisers on the ocean, and to establish his neutrality, a formula has been devised, and is granted, called a certificate of ownership. With a view to the encouragement of ship-building in this country, a discrimination is-also made in the duties of tonnage. Ships of the United States pay at the rate of 6 cents per ton; ships built with[545]*545In the United States after a certain period, but belonging wholly, or in part, to foreigners, 30 cents per ton ; and all other ships, 50 cents' per ton. Hence, under both heads, of ownership and the place of building, all vessels are considered, by our laws, under four distinct views. 1. Vessels of the United States. 2. Vessels built in the United States, owned by foreigners. 3. Vessels built out of the United States, owned by citizens. 4. Vessels built out of the United Ssates, owned by foreigners.
Vessels of the first and third classes, being ow-ned by citizens, are entitled to the protection of the government. The second and fourth classes, being owned by foreigners, cannot receive any documents, which would, in the least, protect them from capture. To encourage onr own ship-building, vessels of the United States pay but a small duty of 6 cents. Vessels built, and owned here, by foreigners, pay a duty of 30 cents; and, if pur citizens will go into foreign countries to build, or to purchase vessels, they are put on the same footing as foreigners, owning foreign vessels, with regard to the rate of duties, although as citizens, they have a right to demand the protecting hand of the government,'for their property. Hence arises the division of vessels owned by citizens, into two [*]classesr vessels of the United. Stales, or registered vessels, and vessels belonging to the citizens of the United States, certifi~ cated, but not registered. The owners of the latter description of vessels, considering this certificate of ownership as a sufficient shield for neutral property, denominated it a sea-letter ; and it may have obtained that appellation at the time our first navigation act was passed, which was in the year 1789, some years before the letter from the secretary of the treasury, set forth in the bill of exceptions, was written. This term was, at a subsequent period, engrafted into our statute book, as I shall pre* sently show.
[546]*546lit the year 1793, when a general war was kindled Ifl “Europe, the President of the United States, in order that ©ur vessels might enjoy the benefits stipulated by treaties, and be generally protected against the depredations of the belligerents, ordered documents to be furnished from the custom-houses, to all ships and vessels belonging to ci-lizens of the United States. This document is denominated, in the letter of the secretary of the treasury, a_sea* letter, and is the formula of the passport adopted in the treaties, and was given to certificated, as well as to re-1 gistered vessels. This was a mere executive regulations unauthorized by any existing statute, and so it continued} until the 1st of June, 1796, when an act was passed, directing the-secretary of state to prepare a form, which, when approved.of by the President, should be deemed the form of a passport, for ships and, vessels of the United States. The form adopted, was the same as described in the treaties. It was so consiructed, in order that we might have the benefit of those treaties. The passports exhibited by the plaintiffs, were issued subsequent to 1796j and although conformable to the formulas prescribed in the treaties, they emanated from this statute. And here two remarkable circumstances occurred ; the term sea-letter in the treaties was dropt in the statute, and the word passport adopted; and the passport was only authorized to be granted to registered vessels. This must have been considered as a negation of the right of the executive, heretofore exercised, of granting passports to certificated vessels. Hence the certificate of American ownership, being their only guard, this certificate was, emphatically, denominated their sea-letter, or protection.
The case before us occurred in the year 1798, two years after the passing of the statute, authorizing the granting of passports only to registered ships. Inconveniences having been sustained from this discrimination, and certified ships frying thus deprived of so important a
[547]*547document, a law was passed on the 2d day of March, 1803, and directing, that every unregistered ship or vessel, owned by a citizen or citizens of the- United States, and sailing with a sea-letter, going to any foreign country, should be furnished with a passport, prescribed in the former act, for ships and vessels of the United States. This statute is one of the only two that contain the term sea-letter, and that.it is used here in the sense of a certificate of ownership, cannot be doubted. A passport is to be granted to a vessel owned by a citizen sailing with a sea-letter. The passport authorized by a former statute is precisely the same with the sea-letter or passport of the treaties. If, then, by the term sea-letter in this statute is intended the sea-letter or passport of the treaty, the provision is superfluous and idle, because it provides for what already exists ; and changing the terms to the construction insisted on by the defendants, the statute would read thus: “ that every unregistered ship sailing with a sea-letter, and owned by a citizen of the United States, shall be furnished with a sea-letter,” that is, provided with what it already possessed'. The only way to escape from this absurdity is to adopt the certificate of ownership as the true and legitimate sea-letter, But this is not all. Another statute was passed on the 14th day of April, 1802, where the word sea-letter is used precisely in the sense now contended for. This statute declares, that “ the second section of the act to retain a further sum or drawback, for the expenses incident to the allowance and payment thereof and in lieu of stamp duties on debentures,” shall not .be deemed to operate on unregistered ships or vessels, owned by the citizens of the United States at the time of passing the said act in those cases, where such ship or vessel, at that time, possessed a sea-letter, or other regular document, issued from a custom house of the United States, proving such a ship or vessel to be American property. This provision is intended to [548]*548operate in favour of unregistered vessels, owned by citizens. And the term sea-letter is used as synonymous with a regular document issued by a custom house of the United States to certificated vessels.
I consider, therefore, the term sea-letter, although variously understood on former occasions, yet, as now adopted, naturalized, and legitimated in our statute book, and its meaning perfectly defined, in the sense contended for by the plaintiffs. Though mentioned in certain treaties as synonymous with transports, yet by statutes subsequently created, the term passport is exclusively used, and the word sea-letter transferred and attached to a different idea. The court ought, therefore, to have decided, that the legal, technical sea-letter, contemplated by the supreme legislature, and spoken of in our statutes, was the certificate of ownership, granted to unregistered vessels belonging to citizens of the United States.
If this view of the subject be well founded, the second head of inquiry, whether the court ought to have admitted parol evidence to explain the written instrument, need hot be considered. If, however, there was any doubt or obscurity on this subject, parol testimony ought to have, been introduced in order to explain it. In this case, stating the controversy in the most favourable light for the defendants, there were two instruments, one legalized by treaty, and the other by statute, of the same denomination : two distinct ideas were attached to the same term. This, therefore, is as much a latent ambiguity as the case commonly cited of two individuals bearing the same name. The only mode to arrive at truth, to reach the meaning of the parties, was to have admitted parol explanations of the understanding of merchants and insurers. A warranty, says a celebrated writer on insurance, (Marshall, 249.) like every other part of the contract, is to be- construed according to the understanding of merchants, and does not bind the insured beyond the com[550]*550mercial import of the words. If the legal import of sea-letter was ambiguous, its commercial meaning, applied to the contract, would have dispelled every shade of doubt.
In every view of the subject, therefore, I am of opinion, that the judgment of the .supreme court ought to be re» versed,
A majority of the court concurring in this opinion, it was, thereupon, ordered and adjudged, that the judgment given by the supreme court be, and the same is hereby «-eversed, there being error in the decision of that Court, in determining, that the paper writing, offered by the plaintiff in error, on the trial, was not a sea-letter, and that a venire facias de novo be awarded.
Judgment reversed.
See also, d'Air jur polit. d las presas, part 1. ch. 2. sec 3, 4, 5, 6.