2 U.S. 270 (1797)

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U.S. Supreme Court

VASSE v. BALL, 2 U.S. 270 (1797)

2 U.S. 270 (Dall.)


Supreme Court of Pennsylvania

March Term, 1797

This was an action on two Policies of Insurance for 28,000 dollars, upon the brig Salmon, and her cargo (both the property of the plaintiff, an American citizen) from Port-au-Paix to Philadelphia, in which these clauses were inserted: 'It is declared that this assurance is made only against capture of the British, or any of the subjects of Great-Britain.' 'The brig is warranted to be an American bottom; and the cargo of the said brig to be American property.'

On the trial, the following appeared to be the material facts: The brig, having carried a cargo of flour from Philadelphia to Port-au-Paix, under a contract with Mr. Fauchet, the French Minister, was captured and taken into Bermuda, for adjudication, by a British privateer, on her return to Philadelphia. The captain of the brig wrote to the plaintiff, his owner, stating the capture, and declaring the strongest apprehension, that a condemnation would ensue, as the captors had got possession of the receipt for the flour delivered upon the contract with Mr. Fauchet, and he had been compelled at Port-au-Paix to take on board a French Officer and a few soldiers (who were all invalids) with their baggage and some articles of household furniture, in order to bring them for their health to America. The plaintiff communicated the capture to the defendant, and, in explicit terms, represented the case to be a desperate one; but the defendant, with confidence, declared, that, as a new Governor had been recently sent out to Bermuda, there would be a change in the administration of justice; so that if the property was bona fide American, it would certainly be acquitted; and, in that confidence, he agreed to insure the vessel and cargo for a premium of ten per cent. At the time of making this agreement, the captain's letter was not shewn to the defendant; but the evidence raised a strong presumption that it was produced and read to him at a subsequent meeting, before the policies were underwrote. The brig and cargo being libelled in the Vice-Admiralty Court of Bermuda, the libel set forth the following allegations as causes of condemnation: 1st. That the vessel and cargo were French property. 2nd. That the vessel was

Page 2 U.S. 270, 271

an American transport in the French service, employed to carry flour and soldiers to and from French ports. 3rd. That the vessel had been employed in carrying dispatches for the French Government. 4th. That the vessel had been employed in trading with the enemies of Great-Britain, supplying them with the means of sustenance and of war. And, 5th. That the port from which the vessel came was in a state of blockade.

The Judge of the Vice-Admiralty pronounced a general decree of condemnation, upon both vessel and cargo, without specifying any particular cause of forfeiture.

Under these circumstances, Ingersoll and Du Ponceau, for the plaintiff, contended that they were entitled to shew, that the brig and cargo, were bona fide American property; that, if so, the warranty had been complied with; and that no other ground alledged in the libel was a just cause of capture and condemnation to discharge the underwriter. It is true, that the ancient cases say, generally, that foreign judgments are conclusive, without distinguishing between the judgments of Courts of Admiralty, and of other Courts; but modern adjudications have more accurately settled, that a foreign judgment shall be deemed prima facie evidence, but, like all other evidence, it is liable to examination. Doug. 6. 4 T. Rep. 493. Bull. N. P. 245. 2 Show. 232. (Leach's Edit. in not.)1 The sentence may justly be conclusive between those who are parties to it, and must ex necessitate, be conclusive upon the subject to which it immediately applies: but it ought not to be binding on third persons with collateral interests; nor upon objects which it never contemplated. There has been a great fluctuation in the English decisions upon points of commercial law. The insurance of enemy's property has, at one time, been held lawful; but Lord Mansfield's decisions on that point, have been recently over-ruled. Parke 239 (last Edit.) And it is well known, that the English courts of Vice-Admiralty do not decide according to the Law of Nations, but according to the instructions of the Crown. But there is not, in fact, any judicial determination of the English Courts, antecedent to the American revolution, which declares, that the sentence of a Court of Admiralty cannot be examined and controverted between persons who were not parties to it. The case of Bernardi v. Motteux, Doug. 554. occurred since the revolution; it has, therefore, no obligatory influence; and it carries the doctrine, respecting the conclusive [2 U.S. 270, 272]

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