Vandenheuvel v. United Insurance

2 Johns. Cas. 451

• Court: New York Supreme Court
• Decided: February 15, 1802
• Status: Published

Opinion

Clinton,

Senator. The plaintiff having warranted a ship and cargo as American property, the question is, whether, in an action against the insurers, the sentence of a foreign court of admiralty, that a warranty was false, is conclusive evidence. It is admitted by the plaintiff, that the sentence binds and changes the property, and that it is prima facie evidence of the fact set up against him ; and on the other hand, it is conceded by the defendants, that in several cases, in an action of this kind, the judgment is not definitive in favor of the insurers ; such as when, on the face of it, it is founded on local ordinances, or contrary to the law of nations, or so ambiguous that the court cannot, from the reasons assigned, collect the grounds of it; and, that this case not coming within either of these descriptions, the contest between the parties still remains open, whether the foreign sentence be prima facie or conclusive evidence, against the insured, and whether it bind the property adjudicated only, or is conclusive to every extent and in every modification of the subject.

Upon a question of such, immense importance, either as it respects the interests of commerce, the honor of the nation, the rights of individuals, or the principles of justice, great and mature deliberation is requisite and essential. I know not any cause that has ever been discussed in this court which embraces so many objects, to render the final result important. Attempts have been made to establish the doctrine of conclusiveness; and, as far as I can comprehend them, they may be arranged under four general heads.

*lst. Authorities previous to the 19th of April, 1775.

2d. Analogical reasoning from domestic courts.

3d. The nature and meaning of the contract of insurance j and,

4th. National considerations of courtesy, comity, and the like.

The cases cited, as existing anterior to the revolution, are not o.nly few, but are either ambiguous or not in point.

The most ancient one, reported in 2 Shower, of Hughes v. Cornelius, was an action of trover brought for a ship sold under a decree of a French admiralty court. The court admitted the sentence to be true, although contrary to the special verdict. They went upon the ground of the decree’s changing the property, and of the inconveniences that would result to merchants, if the court should unravel the title of property acquired in this way; and the reason assigned by Chief Justice M’Kean, in a case reported in Dallas, (Vasse v. Ball, 2 Dallas, 271; see also 2 Dallas, 195,) seems to be conclusive. The idea that a sentence of a court of admiralty is conclusive, arises from the consideration that the court always proceeds in rem. The decree naturally and necessarily binds the subject of the proceeding. A ship or cargo, or any person purchasing under the decree, will, of course, be secure.

The next case relied upon, is a supposed one of a Swedish ship. It was first mentioned by an anonymous author, in a book entitled “ Theory of Evidence.” It does not appear in any collection of reports ; and Buller, in referring to his authority for this, mentions the case in Shower. It, therefore, appears that it is confounded with the case of the Dutch ship in that author.

The case of Fernandes and De Costa was a Nisi Prius one, and it expressly states, that the plaintiff only gave a partial evidence of the vessel’s being Portuguese ; and all we can collect from it is, that the testimony adduced by him was not sufficient to balance that derived *from the foreign adjudication. Will it be believed, that upon this slender ground, the mighty fabric of conclusiveness is attempted to be erected ? For, independent of decisions since the revolution, which are no authority; of arguments from analogy, which I shall presently notice ; and of a few scattered dicta in the books, which do not bear the stamp of judicial authority, there is nothing whereby to warrant the decision of the court below.

The arguments derived from the deference which is paid by the courts of England to each other’s proceedings, do not apply. They are parts of the same building, held together by one common arch. They are under the same government, proceed according to the same law, and redress can be obtained through higher tribunals. If they attempt to exceed their jurisdiction, they can be restrained by a superior power which has an interest in preventing any undue encroachments, and repressing any improper deviations. This is not the case with a foreign court of admiralty. If a neutral conceives himself injured, and is indulged with an appeal, he must still continue in the court of the belligerent; and there is not any uniform law by which these courts govern themselves. They listen more to instructions from the sovereign, than to the injunctions of the law of nations. Lord Mansñeldj admits, that “ in every war, the belligWent powers make particular regulations for themselves ; and that no nation is obliged to be bound by them.” (Park, 360,) It is conceded by the defendants, that a foreign sentence, is binding if resting, on the face of it, on such regulations, and yet they declare, that if founded on these, but it does not appear to be so founded, that then it is conclusive.

With respect to the nature of the contract, upon which much has been said, I confess I do not perceive the force of the reasoning, which attempts to fix the loss on the insured.

*The contract of insurance, says .Park, being for the benefit of the insured, and the advancement of trade, must.be construed liberally, for the attainment of those ends. We must, therefore, not give it an exposition that would tend to embarrass commerce, or injure the assured; but adopt such a construction as will most promote the important objects in view. How commerce would be affected, shall hereafter be considered. By the terms of the contract, the assured warrants the property to be .neutral, and it is understood to he incumbent on him, so to conduct the vessel, as not to forfeit her neutrality. If the vessel be neutral, in fact, he fulfils his warranty. He does not warrant that she shall bé so in the conception of foreign courts. It is not in the reach of human sagacity, to scan the views which different men may take of the same subject, or the various motives which may produce clashing decisions. Against corruption or ignorance in judges, perjury in witnesses, and fraud in captors, it is out of the power of the assured to guard ; they are risks which he casts upon the assurer, and. which the assurer undertakes in consideration of an adequate premium. All the assured is required to do, is not to falsify his warranty. In this case he paid a war premium of 15 per cent; and, the foreign sentence out of view, the special verdict lias verified his warranty.

With regard to the comity due from one national tribunal to anothei, it appears to me, that the compliment is carried sufficiently far, by considering the sentence as prima facie evidence. We are not bound to sacrifice the substantial interest of our citizens to etiquette or courtesy. If a foreign nation will countenance unjust spoliations, if a foreign judge will divide the spoil with the plunderer, are we to countenance the knave and the robber, and declare, with all .possible politeness, “ although we are convinced that an inquiry would paint you in these colors, yet, our respect for your authority, will prevail over a regard for justice, or the claims of our ^'citizens; we shall silence all discussion ; and, although we know you both ignorant and corrupt, both oppressive and fraudulent, yet, as you wear the form, without attending to the obligations of a court of justice, we shall treat your decisions with all imaginable courtesy, comity, deference, politeness, and respect.”

This is a summary of the doctrine, stripped of the imposing garb which it has assumed, and it can only be a question, whether it is most deserving of ridicule, or detestation.

In suits brought in England, upon foreign judgments, between the same parties, the courts consider them only as prima facie evidence of the demand, and admit the defendant, on a plea of nil debet, to contest the merits of the original cause of action. If a foreign judgment be not considered conclusive between the same parties, in cases of this nature, why should the sentence of a foreign court of admiralty between third persons ? The constitution of the United States provides, that “ full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings, of every other state.” And the congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Is it conceivable, that if the sentence of courts of disconnected nations are to be held in such high veneration, by each other, that the framers of the constitution could have thought it necessary to make this provision for sister states, in the closest bond of political connection.

The British have made the interests of commerce a primary object of their cares. In the discovery and arrangement of wise plans, and the execution of efficacious measures. for the attainment of this important end, they stand unrivalled in the history of mankind. Their fleets now traverse every clime, and visit every sea, laden with the riches of the world; they bear .in their hands the trident of the ocean. ' In the time of war, they enrich themselves with the plunder of neutrals ; *their courts appear every where, and condemnations are conducted, not according to the law of nations, or the rights of parties, but according to the instructions from the sovereign and the rapacity of the captors. Much less,” says Wooddeson, (2 Wooddes. 456,) “ ought any of our courts to slight a foreign sentence. Unless we give credit to their proceedings, we cannot expect the judgments here should be thought to merit from them any reverence or attention.” Here, then, is an explicit avowal that the doctrine is adopted with a view to a return. But France, having a different policy, has adopted a different system. (Emerigon, 457, 464.) It is to be further considered, that Great Britain is more than one-half her time at war; that she is an underwriting nation, and, therefore, highly interested in maintaining the rule laid .down. Our policy is entirely different. Peace is no less our interest than our duty. Our courts are not liable to executive instructions, and, consequently, must be governed by the principles of justice ; not according to the exigencies of the state. In establishing, therefore, a rule for our government on this momentous subject, argumenta ab inconvenienti ought to have great weight. Prance and England have set us an example; and, as the law of nations is at least doubtful, we are at liberty to adopt such a construction as shall most subserve the solid interests of this growing country. We ought also to consider, that the object of insurance is indemnity; that instead of fixing the loss upon one, it divides it among many; that with a pacific nation like ours, a construction that will release the insurer from war risks, will be a deprivation of all the benefits that can arise from a neiitral position, and will expose us to most of the calamities, without any advantages, derivable from a belligerent state.

Even Great Britain, situated as she is, has found inconvenience, in many respects, from the generality of the rule she has adopted. Her courts have, by recent decisions, attempted to narrow it into smaller compass. Several important exceptions have been sanctioned, and *whenever a different course of policy shall be deemed advisable, the whole system will be destroyed. Our court has, unadvisedly, and in the first instance, without hearing argument, taken that direction; and, with the best intentions, has persevered in a doctrine which would inevitably lead to the spoliation of our citizens, and the destruction of our commerce.

■ There is nothing, either in the constitution of the admiralty courts of European nations or the mode of proceeding in them, which entitle them to respect. They adopt the rules of the civil law. The judges hold their offices during pleasure, and follow the instructions of the ministry. The captors, who are interested, are admitted as witnesses, and. the judges are paid in proportion to the condemnation. Theyare generally composed of needy adventurers ; their great aim is plunder, and their primary incentive, avarice.

I have thus, in a cursory manner, glanced at the principal grounds of reasoning in the cause, and I must own, that I feel most deeply impressed with its importance. The effects of the decision of this day, will be felt when we are no more; and I trust that it will receive the approving voice of our consciences, and of our country.

Gold, Senator. The questions that arise in this cause for the consideration of the court, are: .

1 st. Does the warranty in the terms of the good American ship, the.Astrea, import, in judgment of law, American or neutral property 7

2d. Is the sentence of the vice-admiralty of Gibraltar conclusive, and does it repel the verification of warranty here 7

On the first preliminary question, however loose and indefinite men are in conversation upon subjects of this nature, yet when the occasion is considered, the bearing of the property of the ship on the professed object *of the contract; its materiality to the risk, and consequent propriety of an understanding on the point, the court must, I apprehend, consider Mr. Yandenheuvel as explaining himself on the question of property, and under the terms American ship, warranting it neutral.

Such, in my apprehension, is the plain, fair and rational import of the language, used by the assured on this occasion.

On the second question in the cause, involving the legal effect of the sentences of foreign courts of admiralty, I enter with much diffidence, and all the solicitude which its extensive operation upon the fortunes of our fellow citizens, and the jurisprudence of our country inspires. If our law is settled on this point; if the question is bound by authority, then the law must have its course, however unpleasant the consequences, however opposed to the speculations of the most enlightened statesmen.

For authority on the question, adjudged cases in that country from whence our jurisprudence is derived, antecedently to our revolution, must be resorted to.

The necessary effect of the sentences of foreign courts of admiralty, in rem, in changing the property in the subject matter, in case of condemnation, is readily evinced, both in point of reason and authority. To this the case of Hughes v. Cornelius, (2 Shower, 232,) strengthened by some other cases, bears strong testimony ; in this the jurisdiction of all courts of admiralty, and the peace of all civilized nations, are essentially concerned.

But the reason for éxtending those sentences beyond the attainment of the above objects, to control the stipulations of parties in a policy of, insurance, are not equally cogent; the necessity not equally .apparent.

For authority to support this application of admiralty sentences are- cited, Buller’s N. P. 244; Theory of Evidence, 37; and the case of. Fernandes v. De Costa, (Park, 177.) In the two first books, the rule to the above extent is laid down in nearly the same words; in plain and unequivocal terms; but no case is cited in the Theory *of Evidence in support of the doctrine, and in BuIIer, the case relied on is that of Hughes v. Cornelius ; which, although containing observations of the court of a very general and unqualified nature, yet, in the point adjudged, does not warrant the rule as there laid down.

The case of Fernandes v. De Costa, is apposite to the question before the court, and merits all that respect which is due to a N. P. decision of one of the greatest judges that ever sat in Westminster Hall. The name of Judge Buller must be considered also as adding some authority to the rule by him laid down, though supported by no adjudged case there cited.

No adjudications at bar, no elaborate discussions appear to have taken placé on the question. On this foundation, in point of authority, stands the doctrine contended for by the defendants in error; and we are now called upon to say, whether the question is so bound down by authority as to be deemed at rest, and to repel a consideration of its merits.

After much reflection on the point, in every view I have been able to place it, I am not satisfied that the law on the subject was settled at the period of our revolution. In pursuing the history of law principles, in retracing adjudications, and collecting cases upon questions long agitated in courts, we find early cases often overruled; first opinions disregarded and reversed, and important questions finally settled in opposition to greater authority of precedent than what is to be found on the question before the court.

Such is the result presented by a perusal of English reporters.

But general principles are resorted to in support of the definitive effect of admiralty sentences, and domestic judgments are adduced for illustration.

In the principles of sovereignty, in the superior integrity and responsibility of domestic judges, their exemption from the influence of policy, from the dominion of *passions hostile to the administration of justice, too often excited in belligerent nations, in the prevalence of the salutary maxim of municipal origin, “ ut sit finis litium,” will be found reasons, I apprehend, for superior confidence in domestic tribunals.

The case of Walker v. Witter, (Doug. 5,) is strong to show the difference between domestic and foreign judgments; the incontrollable verity predicated of the former, is withheld from the latter, which are there holden to be examinable. Nor is the effect of this authority repelled by the argument, that a court resorted to, to carry into effect a foreign judgment, ought to be satisfied of its justice ¡ the application is for justice, and not favor, and the court thus resorted to is bound by constitutional principles, not to delay that justice ; besides, the same principle will apply to the case before the court.

The case of Gage v. Bulkley, in Ridgway, and Burrows v. Jemino, in Strange, are not considered as bearing on the question ; they rested on a different principle, that of thp “ lex loci contractus.” The qualified manner in which admiralty sentences are now received in England ; their different operations as to the fact and the law, serve to mark a wide distinction between those sentences and domestic judgments.

If the reasons assigned for an admiralty decision do not, when tested by the law of nations, bear out the conclusion, the sentence is rejected; if the reasons are assigned in an obscure and unintelligible manner, as to the point decided, the result is the same; but if the judge should have no reasons, or, by casualty, omit to put them on the record, then the sentence becomes conclusive, and repels all examination;

Why a sentence founded on error as to facts, should be more conclusive than one founded on error in law, is difficult to conceive. That the mode of admiralty trial is more favorable to the investigation of truth than that provided by our common law, is not, I apprehend, *evinced by experience, nor do the opinions of some very eminent writers warrant any such conclusion.

To sentences standing on such grounds, my mind is not yet reconciled to yield that controlling effect now contended for. Nothing short of the law being made out in the clearest and most satisfactory manner, can, in my apprehension, justify the reception of those sentences, upon the broad ground now urged upon the court.

There is another ground remaining to be considered, on which it is with some difficulty I have been able to form an opinion.

The position of the insurer is, that the insured, on entering into the policy, well knows the tribunal of the captors to be the pri&eforum ; that a consideration of neutrality is essential to the determination 5 and, therefore, by the terms of his contract, asseuts to this test of his warranty. If the law, giving a conclusive effect to admiralty sentences, is to be deemed settled, then would the above conclusion correctly follow; then would the assured be presumed to know that law, and to assent by his contract to all its consequences ; but, upon any other ground, he may with equal reason be presumed, to assent to a limited operation of these sentences, as prima facie, or presumptive evidence, reserving to himself a right, and taking upon himself the burthen of disproving the same, and verifying his warranty. Such must be the conclusion of the assured in Prance.

A mind conscious of the truth of the representation in the policy, would with difficulty be carried to the conclusion, that although the property insured be, in fact, neutral, yet, if condemned it must therefore be deemed enemy’s. Where the property, in fact, is neutral, and in such case only, will the above opinion operate; it is not to be presumed, that the assured calculates on the event of a condemnation. In the various eases of loss by any of the perils insured against, the falsification of the warranty, is equally fatal to a recovery by the assured, ''Though no -foreign admiralty may'have passed upon the question.

Such are the grounds on which my opinion on this important question is formed. I will only add, that it is with no small diffidence I submit an opinion for the reversal of the judgment of a court, possessing, in so eminent a degree, the high respect and confidence of the community.

The majority of the court being of the same opinion, it was thereupon ordered and adjudged, that the plaintiff in error recover, as for a total loss, the amount found by the jury in the special verdict, with interest and costs, and that the judgment of the supreme court be reversed, and the record remitted, &c.

Judgment of reversal.(

a)(b)

(a) [Old note.] Since the decision of the above cause, several cases have arisen in the courts of Great Britain and the United States, in which the question as to the effect and conclusiveness of the sentences of foreign courts of admiralty, has been variously considered and determined. (See Marshall on Insurance, 2d ed. p. 420, 436. Park on Insurance, 6th ed. p. 463, 497. And see Geyers v. Aguilar, 7 Term Rep. 681. Christie v. Secretan, 8 Term

(b) See supra, vol. 1, p. 16, n. (a,) and vol. 2, p. 16, n. (b) ; 144, n. (b.) Rep. 192. Garrells v. Kensington, 8 Term Rep. 230. Pollard v. Bell, 8 Term Rep. 441. Bird v. Appleton, 8 Term Rep. 562. Price v. Bell, 1 East’s Rep. 663. Oddy v. Bovil, 2 East’s Rep. 473. Baring v. Claggett, 3 Bos. & Pull. 201. Lothian v. Henderson, 3 Bos. & Pull. 499. Bolton v. Gladstone, 5 East, 155. Baring v. Christie, 5 East, 398. Baring v. Royal Ex. Ass. 5 East, 99. Fisher v. Ogle, 1 Camp. N. P. Cases, 418. “Donaldson v. Thompson, 1 Campb. N. P. Cases, 429. Kinderley and others v. Chace and others, in Park, 486, and Marshall, 423.)

The result of the decisions in the English courts seems to he that where property is warranted neutral, and the court of the belligerent country condemns it as belonging to an enemy, the sentence, however absurd, is conclusive evidence that the warranty is false ; but where the belligerent country condemns as prize, without adverting to the question of neutrality at all, it does not operate on the truth or falsehood of the warranty, or a fact asserted in the policy of insurance.

IIow reluctantly this doctrine, as to the conclusivencss of foreign sentences, has been acquiesced in by some of the judges of the English courts, may be seen from the expressions of Lord Ellenborough, in the cases of Fisher v. Ogle and Donaldson v. Thompson, where he says, “ it is by an overstrained comity, that these sentences are received as conclusive evidence of the facts which they positively aver, and upon which they specifically profess to be founded.

“ I am by no means disposed to extend the comity, which has been showed to these sentences of foreign admiralty courts. I shall die, like Lord Thur-low, in the belief that they ought never to have been admitted. The doctrine in their favor rests upon an authority in Shower, (vol. 2, p. 233, Hughes v. Cornelius,) which does not fully support it, and the practice of receiving them, often leads, in its consequences, to the greatest injustice.” In a gazette report of the case of Donaldson v. Thompson, Lord Ellenborough is stated to have said, “ that he should always hold the authorities of foreign courts to condemn ships as prize, to the utmost strictness of proof, when offered as evidence to affect the rights of third parties, in a court of justice of this country: that there were some of the most enlightened minds in the country, who thought that these sentences of foreign courts ought never to be received in evidence at all on such occasions; that Lord Thurlow never met him without saying so : his mind was full upon it; he said it was an anomaly in the law, and ought never to have been allowed to have crept into it; and that he agreed with Lord Thurlow upon that subject, and he should die in the faith ; but the usage of nations, perhaps, required, certainly authority had decided, that these sentences should be received in evidence, and be conclusive on all things on which they operated ; a doctrine, to give way to which, was sufficiently painful in many instances, but he should never consent to extend it an iota beyond the letter.”

In Vasse v. Ball, (2 Dall. 270,) decided in the supreme court of Penns'ylvania, in 1797, where the property was warranted' neutral, and the libel stated several grounds of forfeiture, and the sentence of condemnation was general, without specifying any particular cause of forfeiture, the court held that the assured, notwithstanding the sentence, might show that the property was American.

In the case of Dempsey, Assignee of Brown, v. The Insurance Company of Pennsylvania, decided in the high court of errors and appeals, in the state of Pennsylvania, (in 1808,) it was held, after two arguments, that “ the sentence of a foreign court of admiralty was conclusive, not only as to its direct effects, but also as to the facts directly decided by it;” Judges Rush, Roberts, Hamilton, Young and Wilson, in the affirmative ; Judge Cooper, contra. (1 Binn. Rep. 299, n.) See also Colhoun v. Ins. Co. of Pennsylvania, 1 Binn. Rep. 293, and Galbraith v. Gracie, in the circuit court of the United States, 1 Binn. Rep. 293, note.

The legislature of Pennsylvania, by an act of the 29th of March, 1809,. declared that no sentence of any (foreign) court, having or exercising jurisdiction of prize, shall be conclusive evidence in any case, of any fact, matter or thing, therein contained, except of the acts of such court ; provided, that nothing in the act shall be construed to impair or destroy the legal effects of such sentence on the property affected, or intended to be affected thereby, &c.

In the case of Rose v. Himely, (4 Cranch’s Rep. 241,) the supreme court of the United States decided, that a sentence of condemnation, by a competent court, having jurisdiction over the subject matter of its judgment, is conclusive as to the title of the thing claimed under' it. Chace, J. and Livingston, J. dissenting. And in Croudson and others v. Leonard, (4 Cranch, 434,) which was an action on a policy of insurance, the supreme court of the United States, (February, 1808,) held, that the sentence of a foreign court of admiralty, condemning a vessel for breach of a blockade, was conclusive evidence of that fact, as between the insurer and the insured. Marshall, Ch. J., Cushing, J., Washington, J. and Johnson, J. in the affirmative. Chase, J, and Livingston, J. contra. Todd, J. not having heard the argument, gave no opinion. Washington, J. and Johnson, J. were the only judges who appear to have stated the reasons for their opinions. (See also Fitzsimmons v. Newport Ins. Co. 4 Dallas, 185.)

The same question was lately brought before the supreme court of Massachusetts, but the result is not known.