The New York
16 U.S. 59 (1818)

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U.S. Supreme Court

The New York, 16 U.S. 3 Wheat. 59 59 (1818)

The New York

16 U.S. (3 Wheat.) 59

APPEAL FROM THE CIRCUIT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

Libel under the nonimportation acts. Alleged excuse of distress repelled. Condemnation pronounced.

Page 16 U. S. 60

MR. JUSTICE LIVINGSTON delivered the opinion of the Court.

This ship was libeled for taking on board, at the Island of Jamaica, with the knowledge of the master, 51 punisheons of rum, 23 barrels of limes, and 20 barrels of pimento with intention to import the same into the United States contrary to the provisions of an act of Congress interdicting commercial intercourse between Great Britain and the United States,

Page 16 U. S. 61

passed 1 March, 1809, and the cargo was libeled for an importation into the United States in violation of the provisions of the same law.

A claim was interposed by John Troup, of the City of New York, merchant, which denies the allegation of the libel as to the intention with which the articles mentioned in the libel were put on board at Jamaica, and as to the importation he states that on or about 6 October, 1811, the said ship, with the said cargo on board, being on the high seas on the American coast about five leagues distant from land, and having lost her rudder, and being otherwise disabled, was by stress of weather compelled to put into the port of New York contrary to the will and design of the master and against the express orders of the claimant as owner thereof, communicated to the said master before his arrival.

On board the vessel were two manifests of the cargo, both of which stated the cargo to have been laden on board at Montego Bay in Jamaica, but one of them declared her destination to be Amelia Island, and the other New York. The latter was delivered to an officer of the customs, and a certificate by him endorsed thereon stating that fact, dated 14 October, 1811. The other manifest was exhibited at the custom house in New York on 25 October, 1811, at which time the master took the oath usual on such occasions, stating that the said manifest contained a true account of all the goods on board and that there were not any goods on board the importation of which into the United States was prohibited by law.

Page 16 U. S. 62

John Davison, the master, deposed that he was with the said ship at Jamaica in August, 1811. That his orders from the claimant were not to take on board at Jamaica any West India produce for the United States. That the consignee of the said ship, the Northern Liberties (evidently a mistake for the New York), insisted upon it that he should take a cargo of West India produce on board, stating it, as his opinion, that the nonintercourse law would probably be repealed before he could arrive at New York and that, at any rate, he could stand off and on Sandy Hook until he should receive the orders of his owner how to proceed. That he was thus induced to take the said cargo on board, with which he sailed with orders from the consignee and with intention to obey them, not to attempt to come into the port of New York unless he received from the owner directions off Sandy Hook so to do; that on 6 October in the same year, while on the voyage from Jamaica, they had a severe gale of wind from the southwest, varying to the southward and eastward, accompanied with a very heavy sea, which continued nearly twenty hours, in the course of which they split the foresail and carried away the rudder. That on 11 October, they made soundings about 40 miles to the southward of Sandy Hook, where he received a letter from the owner by a pilot boat, the contents of which he communicated to the crew and told them he should wait off the Hook until he received further orders from the owner, but they declared that the rudder was in such a state that it was unsafe to remain in her at sea, and that they would leave the

Page 16 U. S. 63

ship in the pilot boat unless he would bring her into port. That in his opinion it would have been dangerous and very unsafe to continue at sea with the said ship in the condition in which the rudder then was, and he therefore consented to bring her into New York, believing that it was necessary to do so for the preservation of the cargo and the lives of the people on board; that he was towed into New York, by a pilot boat, as the pilot would not take charge of the ship unless she was towed.

The letter of the owner referred to in the master's testimony is dated in New York, 3 October, 1811, and is addressed to him as follows:

"Not knowing if you have rum in, I take this precaution by every boat; if you have rum, you are to stand off immediately at least four leagues, and keep your ship in as good a situation as you can, either for bad weather or to come in if ordered; you must get the pilot to bring up all the letters for me, &c., also, a letter from yourself stating the state of your ship, provisions, &c., and bring them to town as soon as possible; give me your opinion of your crew, if you think they can be depended on if we find it necessary to alter our port of departure. If you have rum in, I expect the ship must go to Amelia Island or some other port, as they seize all that comes here. You may expect to see or hear from me in a day or two after your being off, you keeping the Highlands N.W. of you I think will be a good birth. If you are within three leagues of the land, you are liable to seizure by any armed vessel."

On 18 October, 1811, a survey was made

Page 16 U. S. 64

of the New York by the board of wardens which stated the rudder gone, the stern post and counter plank injured, the oakum worked out, the main cap split and settled, fore-topsailyards sprung, pallpits broken; fore-topsail sheet bill started and broken. This injury was stated by the master to the wardens to have happened in a gale, in lat. 27

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