The government of the United States having insisted, and
continuing to insist, through its regular executive authority, that
the Falkland Islands do not constitute any part of the dominions
within the sovereignty of Buenos Ayres, and that the seal fishery
at those islands is a trade free and lawful to the citizens of the
United States, and beyond the competency of the Buenos Ayres
government to regulate, prohibit, or punish, it is not competent
for a circuit court of the United States to inquire into and
ascertain by other evidence the title of the government of Buenos
Ayres to the sovereignty of the Falkland Islands.
When the executive branch of the government, which is charged
with the foreign relations of the United States, shall, in its
correspondence with a foreign nation, assume a fact in regard to
the sovereignty of any island or country, it is conclusive on the
judicial department.
Where a vessel, insured on a sealing voyage, was ordered by the
government of Buenos Ayres not to catch seal off the Falkland
Islands, and having continued to take seal there the vessel was
seized and condemned under the authority of the government of
Buenos Ayres, the government of the United States not having
acknowledged but having denied the right of Buenos Ayres to the
Falkland Islands, the insurers were liable to pay for the loss of
the vessel and cargo, the master, in refusing to obey the orders to
leave the island, having acted under a belief that he was bound so
to do as a matter of duty to the owners and all interested in the
voyage and in vindication of the right claimed by the American
government. The master was not bound to abandon the voyage under a
threat or warning of such illegal capture.
This was an action brought by the plaintiff, a citizen of the
State of Connecticut, against the Suffolk Insurance Company of
Boston, Massachusetts, to recover a loss on part of the schooner
Harriet, and part of her cargo, they having been insured
by the defendants. There was a similar action against the
defendants to recover losses sustained on the schooner
Breakwater and her cargo. Both the cases were brought from
the Circuit Court of Massachusetts on certificates of division of
opinion of the judges of the circuit court.
The cases were stated in the record as follows:
"These were actions of assumpsit on policies of insurance dated
19 August, 1830, whereby the plaintiff caused to be insured by the
defendants for nine percent per annum premium, warranting twelve
percent 'lost or not lost,' forty-nine hundred and nineteen dollars
on fifteen sixteenths of schooner
Harriet, and eighteen
hundred and seventy-five dollars on board said vessel, at and from
Stonington, Connecticut, commencing the risk on 12 August instant
at noon, to the southern hemisphere, with liberty to stop for salt
at the Cape de Verd Islands and to go round Cape Horn and to touch
at all islands, ports, and places for the purpose of taking seals,
and for information and refreshments, with liberty to put his skins
on board of any other vessel or vessels until she returns to her
port of discharge in the United States, it being understood that
the value of the interest hereby insured, as it relates to this
insurance, is not to be diminished thereby. It is understood and
agreed that if the
Harriet should not proceed
southeasterly of
Page 38 U. S. 416
Cape Horn on a voyage towards the South Shetland Islands and
there be no loss, then the premium is to be six percentum per
annum, the assured warranting only nine percent; vessel valued at
five thousand dollars; outfits valued at two thousand dollars."
"There was a similar policy underwritten by the defendants for
the plaintiff on the same day for the like voyage in all respects
of thirty-five hundred dollars on the schooner
Breakwater,
and two thousand dollars on outfits on board, at the same premium,
the vessel being valued at thirty-five hundred dollars and the
outfits at two thousand dollars, upon which also an action was
brought."
"The declaration upon each policy averred a total loss by the
seizure and detention of one Lewis Vernet and other persons,
pretending to act by the authority of the government of Buenos
Ayres with force and arms."
"The causes came on to be heard together by the court upon
certain facts and statements agreed by the parties, the parties
agreeing that the verdict should be rendered by the jury for the
plaintiff and for the defendants according to the opinion of the
court upon the matters of law arising upon those facts and
statements, and the cause was argued by C. G. Loring for the
plaintiff and by Theophilus Parsons for the defendants. It appeared
from these facts and statements that both of the vessels insured
were bound on a sealing voyage, and proceeded to the Falkland
Islands in pursuance thereof, and were there both seized by one
Lewis Vernet, acting as governor of those islands under the
appointment and authority of the government of Buenos Ayres. The
Harriet was seized on 30 July, 1831, and was subsequently
carried by the captors to Buenos Ayres, where certain proceedings
were had against her in the tribunals and under the sanction of the
government of Buenos Ayres. She has never been restored to the
defendants, but has been condemned for being engaged in the seal
trade at the Falkland Islands."
"The
Breakwater was seized at the islands on or about
18 August, 1831, and was afterwards recaptured by the mate and
crew, who remained on board, and was by them brought home to the
United States, and after her arrival was libeled for salvage in the
District Court of Connecticut District, and salvage was awarded of
one-third part of the proceeds of vessel and property."
"Copies of the orders and decrees of the courts of Buenos Ayres
respecting the seal fisheries, of the appointment of Vernet as
Governor of the Falkland Islands, of the proceedings against the
Harriet, of the correspondence of the American government
with the Buenos Ayrean government, relative to the jurisdiction of
the Falkland Islands, were produced and read
de bene esse
in the case."
The following points and questions occurred in the case on which
the judges of the circuit court were divided in opinion, and they
were stated and ordered to be certified to the Supreme Court to be
finally decided:
Page 38 U. S. 417
"1. Whether, inasmuch as the American government has insisted
and does still insist, through its regular executive authority,
that the Falkland Islands do not constitute any part of the
dominions within the sovereignty of the government of Buenos Ayres,
and that the seal fishery at those islands is a trade free and
lawful to the citizens of the United States and beyond the
competency of the Buenos Ayrean government to regulate, prohibit,
or punish, it is competent for the circuit court in this cause to
inquire into and ascertain by other evidence the title of said
government of Buenos Ayres to the sovereignty of the said Falkland
Islands, and if such evidence satisfies the Court, to decide
against the doctrines and claims set up and supported by the
American government on this subject, or whether the action of the
American government on this subject is binding and conclusive on
this Court as to whom the sovereignty of those islands
belongs."
"2. Whether, if the seizure of the
Harriet by the
authority of the Buenos Ayrean government, for carrying on the seal
fishery at the Falkland Islands was illegal and contrary to the law
of nations on account of the said islands' not being within the
territorial sovereignty of the said Buenos Ayrean government, and
the master of the
Harriet had warning from the government
of the said islands under the government of Buenos Ayres that he
should seize the said
Harriet if she should engage in the
seal fishery, and after such warning, the master of the
Harriet engaged in such seal fishery, and the
Harriet was illegally seized and condemned therefor, the
loss by such seizure and condemnation was a loss for which the
plaintiff is entitled to recover in this case; if the master of the
Harriet acted, in engaging in such seal fishery
bona
fide and with a sound and reasonable discretion and under a
belief that he was bound so to do as a matter of duty to his owners
and all others interested in the voyage and in the vindication of
the rights recognized and claimed by the American government, or
whether he was bound by law to abandon the voyage under such a
threat and warning of such illegal seizure. "
Page 38 U. S. 418
MR. JUSTICE McLEAN delivered the opinion of the Court:
Two actions were commenced by the plaintiffs against the
defendant in the Circuit Court of the United States for the State
of Massachusetts on policies of insurance dated 19 August, 1830,
whereby the plaintiffs caused to be insured by the defendants,
for
Page 38 U. S. 419
nine percentum per annum premium, warranting twelve percentum
lost or not lost, forty-nine hundred and nineteen dollars on
fifteen-sixteenths of schooner
Harriet and eighteen
hundred and seventy-five dollars on board said vessel, at and from
Stonington, Connecticut, commencing the risk on 12 August instant
at noon to the southern hemisphere, with liberty to stop for salt
at the Cape de Verd islands and to go round Cape Horn and to touch
at all islands, ports and places for the purpose of taking seals
and for information and refreshments, with liberty to put his skins
on board of any other vessel or vessels until she returns to her
port of discharge in the United States, it being understood that
the value of the interest hereby insured, as it relates to this
insurance, is not to be diminished thereby, &c.
On the same day there was a similar policy of thirty-five
hundred dollars on the schooner
Breakwater, and two
thousand dollars on outfits on board at the same premium,
&c.
And on the trial the following points were raised in the case,
on which the opinions of the judges were opposed, and on which the
case is certified to this Court.
1. Whether, inasmuch as the American government has insisted,
and does still insist, through its regular executive authority,
that the Falkland Islands do not constitute any part of the
dominions within the sovereignty of the government of Buenos Ayres,
and that the seal fishery at those islands is a trade free and
lawful to the citizens of the United States and beyond the
competency of the Buenos Ayres government to regulate, prohibit, or
punish, it is competent for the circuit court in this cause to
inquire into and ascertain by other evidence the title of said
sovereignty of the said Falkland sovereignty of the said Falkland
islands, and if such evidence satisfies the court, to decide
against the doctrines and claims set up and supported by the
American government on this subject, or whether the action of the
American government on this subject is binding and conclusive on
this Court as to whom the sovereignty of those islands belongs.
2. Whether, if the seizure of the
Harriet by the
authority of the Buenos Ayrean government for carrying on the seal
fishery at the Falkland Islands was illegal and contrary to the law
of nations on account of the said islands' not being within the
territorial sovereignty of the said Buenos Ayrean government, and
the master of the
Harriet had warning from the governor of
the said islands under the government of Buenos Ayres that he
should seize the said
Harriet if she should engage in the
seal fishery, and after such warning the master of the
Harriet engaged in the seal fishery, and the
Harriet was illegally seized and condemned therefor, the
loss by such seizure and condemnation was a loss for which the
plaintiff is entitled to recover in this case if the master of the
Harriet acted in engaging in such seal fishery
bona
fide and with a sound and reasonable discretion and under a
belief that he was bound so to do as a matter of duty to his owners
and all others interested in
Page 38 U. S. 420
the voyage and in the vindication of the rights recognized and
claimed by the American government, or whether he was bound by law
to abandon the voyage under such a threat and warning of such
illegal seizure.
As the fact is stated in the first point certified that there is
a controversy between this government and that of Buenos Ayres
whether the jurisdiction is rightful which is assumed to be
exercised over the Falkland Islands by the latter, and that this
right is asserted on the one side and denied by the other, it will
not be necessary to look into the correspondence between the two
governments on the subject.
To what sovereignty any island or country belongs is a question
which often arises before courts in the exercise of a maritime
jurisdiction, and also in actions on policies of insurance.
Prior to the revolution in South America, it is known that the
Malvinas, or Falkland Islands, were attached to the vice-royalty of
La Plata, which included Buenos Ayres. And if this were an open
question, we might inquire whether the jurisdiction over these
islands did not belong to some other part, over which this ancient
vice-royalty extended, and not to the government of Buenos Ayres,
but we are saved from this inquiry by the attitude of our own
government, as stated in the point certified.
And can there be any doubt that when the executive branch of the
government, which is charged with our foreign relations, shall in
its correspondence with a foreign nation assume a fact in regard to
the sovereignty of any island or country, it is conclusive on the
judicial department? And in this view, it is not material to
inquire, nor is it the province of the court to determine, whether
the executive be right or wrong. It is enough to know that in the
exercise of his constitutional functions, he has decided the
question. Having done this under the responsibilities which belong
to him, it is obligatory on the people and government of the
Union.
If this were not the rule, cases might often arise in which, on
the most important questions of foreign jurisdiction, there would
be an irreconcilable difference between the executive and judicial
departments. By one of these departments a foreign island or
country might be considered as at peace with the United States
whilst the other would consider it in a state of war. No well
regulated government has ever sanctioned a principle so unwise and
so destructive of national character.
In the cases of
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 307,
and
Garcia v. Lee,
12 Pet. 511, this Court has laid down the rule that the action of
the political branches of the government in a matter that belongs
to them is conclusive.
And we think in the present case, as the executive, in his
message and in his correspondence with the government of Buenos
Ayres has denied the jurisdiction which it has assumed to exercise
over the Falkland Islands, the fact must be taken and acted on by
this Court as thus asserted and maintained.
Page 38 U. S. 421
The decision of the first point materially affects the second,
which turns upon the conduct of the master.
If these islands are not within the jurisdiction of the Buenos
Ayrean government, the power assumed and exercised by Governor
Vernet was unauthorized, and the master was not bound to regard it.
He was not necessarily to be diverted from the objects of his
voyage and the exercise of rights which belonged in common to the
citizens of the United States by an unauthorized threat of the
seizure of his vessel. He might well consider the prohibition of
Vernet as influenced by personal and sinister motives, and would
not be enforced. If the principle were admitted, that the assured
were bound to regard every idle threat of any individual who might
assume to exercise power, as in this case, it would be most
injurious, and in many cases destructive, to commercial rights.
The inquiry is whether the master, under all the circumstances
of the case, acted in good faith and with ordinary prudence.
If he acted fraudulently, he was guilty of barratry, and the
underwriters are discharged.
In 4 Taunton 858, Mr. Justice Gibbs, in giving the opinion of
the court, lays down the true rule. "The master," says he,
"being asked why he had not British colors and British papers,
said 'I cannot have them, because I have not a British register.'
He stands on his strict rights. He says, 'I will do nothing to
endanger my owners; I am a neutral, and I have a right to enter
your port.' The master really communicated the true facts of the
case when she was searched, and says, 'I cannot go off, because of
my charter party.' The other says: 'Then I will seize you.' We
think, then, each party stands on his strict rights, and we are now
to consider the strict point of law, not the question whether it
would have been more prudent for him to go to Tercera, but whether
he acted
bona fide."
And so in the present case the question is not whether the
master of the
Harriet would not have acted with more
prudence had he yielded to the inhibition of Vernet, but whether,
in placing himself upon his strict rights, he did not exercise a
proper discretion.
He violated no regulation which he was bound to respect. In
touching at the Falkland Islands for the purpose of taking seal, he
acted strictly within the limits of his commercial enterprise, and
did not voluntarily incur a risk which should exonerate the
insurers.
It was the duty of the master to prosecute his voyage and attain
the objects of it for the benefit of his owners, and in doing this
he was not bound to abandon the voyage by any threat of illegal
seizure. We think, therefore, that the underwriters are not
discharged from liability by the conduct of the master, as stated
in the second point.
The other case depending upon the same principles, the same
certificate will be affixed to that case.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts,
Page 38 U. S. 422
and on the points and questions on which the judges of the said
circuit court were opposed in opinion, and which were certified to
this Court for its opinion, agreeably to the act of Congress in
such case made and provided, and was argued by counsel. On
consideration whereof, it is the opinion of this Court, 1st, that
inasmuch as the American government has insisted and still does
insist, through its regular executive authority, that the Falkland
Islands do not constitute any part of the dominions within the
sovereignty of the government of Buenos Ayres, the action of the
American government on this subject is binding on the said circuit
court as to whom the sovereignty of those islands belongs. And
secondly that the seizure and condemnation of the
Harriet
was a loss for which the plaintiff is entitled to recover in this
case under the circumstances as stated in the second point
certified. Whereupon it is ordered and adjudged by this Court that
it be so certified to the said circuit court accordingly.
