An American ship, warranted to be American property, is
impliedly warranted to conduct herself during the voyage as an
American, and an attempt to enter a blockaded port knowing it to be
blockaded forfeits that character.
The fact of clearing out for a blockaded port is itself innocent
unless it is accompanied with a knowledge of the blockade.
By the treaty with Great Britain it is agreed that every vessel
may be turned away from any blockaded or besieged port or place
which shall have sailed for the same without knowing of the
blockade or siege, but she shall not be detained, nor her cargo, if
not contraband, be confiscated unless after notice she shall again
attempt to enter; but she shall be permitted to go to any other
port or place she may think proper. The treaty is conceived to be a
correct exposition of the law of nations.
Neither the law of nations nor the treaty admits of the
condemnation of the neutral vessel for the intention to enter a
blockaded port unconnected with any fact. Under the treaty, a
second attempt to enter the invested place must be made after
notification of the blockade, and inquiring about the place, as if
watching for an opportunity to sail into it, or the single
circumstance of not asking immediately for some other port, or
possibly obstinate and determined declarations of a resolution to
break the blockade might be evidence of an attempt, after warning,
to enter the blockaded port. But whether these circumstances or
others may or may not amount to evidence of the offense, the
offense itself is attempting again to enter, and unless "after
notice she shall again attempt to enter," the two nations expressly
stipulate she shall not be detained, nor her cargo, if not
contraband, confiscated.
However conclusive the sentence of a foreign court of admiralty
may be of the facts which it alleges, those facts not amounting to
a justifiable cause of condemnation, the Court will look into the
facts of a case and draw from them such conclusions as they will
authorize.
Error to the Circuit Court of the district of Rhode Island in an
action upon a policy of insurance on the brig
John,
warranted American property, from Charleston, South Carolina, to
Cadiz, captured by a British ship of war on 16 July, 1800, carried
into Gibraltar, and there condemned on 26 August following. The
cause of condemnation set forth in the sentence was that the brig
was "cleared out for Cadiz, a port actually blockaded," and that
the master "persisted in his intention of entering that port after
warning from the blockading force not to do so, in direct breach
and violation of the blockade thereby notified." On the trial in
the court below, the jury found a special verdict stating, among
other things, that the blockade of Cadiz was not known at
Charleston when the
John sailed from thence, and that the
first notice the master had was from the blockading squadron, who
brought to the brig, and warned the master not to proceed to, nor
attempt to enter the port of Cadiz, and endorsed his register; but
the master had no notice of such endorsement upon his register
until after the condemnation. The mate and some of the seamen were
taken out and a prize master and British seamen put on board. She
was detained by the
Page 8 U. S. 186
blockading squadron from the 16th to the 27th of July, when the
master was ordered on board the admiral's ship, and told,
"we have thoughts of setting you at liberty, and in case we do,
and deliver you your vessel and papers, what course will you steer,
or what port will you proceed for?"
To which the master answered that in case he got no new orders,
he should continue to steer by his old ones. The admiral then said,
"that will be, I suppose, for Cadiz." To which the master replied,
"certainly, unless I have new orders." Upon which the admiral said,
"that is sufficient; I shall send you to Gibraltar for
adjudication." Whereupon the brig, without being liberated, was
sent into Gibraltar and condemned on the grounds stated in the
sentence. The libel and proceedings in the vice admiralty are found
by the special verdict. An appeal was prayed and granted from the
vice-admiralty court, but it does not appear to have been
prosecuted. The judgment in the court below was for the original
defendants.
This cause was several times argued, having been pending in this
Court ever since the year 1803.
Page 8 U. S. 197
MR. CHIEF JUSTICE MARSHALL (all the seven judges being present)
delivered the opinion of the Court as follows:
This suit is instituted to recover from the underwriters the
amount of a policy insuring the brig
John on a voyage from
Charleston to Cadiz. The vessel was captured on her passage by a
British squadron then blockading that port, was sent into Gibraltar
for adjudication, and was there condemned by the court of
vice-admiralty as lawful prize. The assured warrants the ship to be
American property, and the defense is that this warranty is
conclusively falsified by the sentence of condemnation.
The points made for the consideration of the court are,
1st. Is the sentence of a foreign court of admiralty conclusive
evidence, in an action against the underwriters, of the facts it
professes to decide? If so,
2d. Does this sentence, upon its face, falsify the warranty
contained in the policy? If not,
3d. Does the special verdict exhibit facts which falsify the
warranty?
The question on the conclusiveness of a sentence of a foreign
court of admiralty having been more than once elaborately argued,
the Court reluctantly avoids a decision of it at present. But there
are particular reasons which restrain one of the judges from giving
an opinion on that point, and another case has been mentioned in
which it is said to constitute the sole question. In that case it
will of course be determined.
Page 8 U. S. 198
Passing over the consideration of the first point, therefore,
the court proceeded to inquire whether this cause could be decided
on the second and third points.
Admitting for the present that the sentence of a foreign court
of admiralty is conclusive with respect to what it professes to
decide, does this sentence falsify the warranty contained in this
policy that the brig
John is American property?
The sentence declares
"The said brig to have been cleared out for Cadiz, a port
actually blockaded by the arms of our sovereign Lord the King, and
that the master of said brig persisted in his intention of entering
that port, after warning from the blockading force not to do so, in
a direct breach and violation of the blockade thereby
notified."
The sentence, then, does not deny the brig to have been American
property. But it is contended by the counsel for the underwriters
that a ship warranted to be American is impliedly warranted to
conduct herself during the voyage as an American, and that an
attempt to enter a blockaded port, knowing it to be blockaded,
forfeits that character.
This position cannot be controverted.
It remains, then, to inquire whether the sentence proves the
brig
John to have violated the laws of blockade -- that
is, whether the cause of condemnation is alleged in such terms as
to show that the vessel had forfeited her neutral character or in
such terms as to show its insufficiency to support the
sentence.
The fact of clearing out for a blockaded port is in itself
innocent unless it be accompanied with knowledge of the blockade.
The clearance, therefore, is not considered as the offense; the
persisting in the intention to enter that port, after warning by
the blockading force, is the ground of the sentence.
Is this intention (evidenced by no fact whatever) a breach of
blockade? This question is to be decided by
Page 8 U. S. 199
a reference to the law of nations and to the treaty between the
United States and Great Britain.
Vattel, b. 3, s. 177, says
"All commerce is entirely prohibited with a besieged town. If I
lay siege to a place, or only form the blockade, I have a right to
hinder anyone from entering and to treat as an enemy whoever
attempts to enter the place or carry anything to the besieged
without my leave."
The right to treat the vessel as an enemy is declared by Vattel
to be founded on the attempt to enter, and certainly this attempt
must be made by a person knowing the fact.
But this subject has been precisely regulated by the treaty
between the United States and Great Britain which was in force when
this condemnation took place. That treaty contains the following
clause:
"And whereas it frequently happens that vessels sail for a port
or place belonging to an enemy without knowing that the same is
either besieged, blockaded or invested, it is agreed that every
vessel so circumstanced may be turned away from such port or place,
but she shall not be detained, nor her cargo, if not contraband, be
confiscated unless after notice she shall again attempt to enter;
but she shall be permitted to go to any other port or place she may
think proper."
This treaty is conceived to be a correct exposition of the law
of nations; certainly it is admitted by the parties to it, as
between themselves, to be a correct exposition of that law or to
constitute a rule in the place of it.
Neither the law of nations nor the treaty admits of the
condemnation of the neutral vessel for the intention to enter a
blockaded port, unconnected with any fact. Sailing for a blockaded
port, knowing it to be blockaded, has been in some English cases
construed into an attempt to enter that port, and has therefore
been adjudged a breach of the blockade from the departure of the
vessel.
Page 8 U. S. 200
Without giving any opinion on that point, it may be observed
that in such cases the fact of sailing is coupled with the
intention, and the sentence of condemnation is founded on an actual
breach of blockade. The cause assigned for condemnation would be a
justifiable cause, and it would be for the foreign court alone to
determine whether the testimony supported the allegation that the
blockade was broken. Had this sentence averred that the brig
John had broken the blockade or had attempted to enter the
port of Cadiz after warning from the blockading force, the cause of
condemnation would have been justifiable, and without controverting
the conclusiveness of the sentence, the assured could not have
entered into any inquiry respecting the conduct of the vessel. But
this is not the language of the sentence. An attempt to enter the
port of Cadiz is not alleged, but persisting in the intention,
after being warned not to enter it, is alleged as the cause of
condemnation. This is not a good cause under the treaty. It is
impossible to read that instrument without perceiving a clear
intention in the parties to it that after notice of the blockade,
an attempt to enter the port must be made in order to subject the
vessel to confiscation. By the language of the treaty, it would
appear that a second attempt after receiving notice must be made in
order to constitute the offense which will justify a confiscation.
"It is agreed," says that instrument,
"that every vessel so circumstanced [that is, every vessel
sailing for a blockaded port without knowledge of the blockade] may
be turned away from such port or place, but she shall not be
detained, nor her cargo, if not contraband, be confiscated unless
after notice she shall again attempt to enter."
These words strongly import a stipulation that there shall be a
free agency on the part of the commander of the vessel, after
receiving notice of the blockade, and that there shall be no
detention nor condemnation unless in the exercise of that free
agency a second attempt to enter the invested place shall be
made.
It cannot be necessary to state that testimony which would
amount to evidence of such second attempt. Lingering about the
place, as if watching for an opportunity
Page 8 U. S. 201
to sail into it, or the single circumstance of not making
immediately for some other port, or possibly obstinate and
determined declarations of a resolution to break the blockade,
might be evidence of an attempt, after warning, to enter the
blockaded port. But whether these circumstances or others may or
may not amount to evidence of the offense, the offense itself is
attempting again to enter, and "unless, after notice, she shall
again attempt to enter," the two nations expressly stipulate "that
she shall not be detained, nor her cargo, if not contraband, be
confiscated." It would seem as if, aware of the excesses which
might be justified by converting intention into offense, the
American negotiator had required the union of fact with intention
to constitute the breach of a blockade.
The cause of condemnation, then, as described in this sentence,
is one which, by express compact between the United States and
Great Britain, is an insufficient cause unless the intention was
manifested in such manner as in fair construction to be equivalent
to an attempt to enter Cadiz after knowledge of the blockade. This
not being proved by the sentence itself, the parties are let in to
other evidence.
However conclusive, then, the sentence may be of the particular
facts which it alleges, those facts not amounting in themselves to
a justifiable cause of condemnation, the court must look into the
special verdict, which explains what is uncertain in the sentence.
The special verdict shows that the vessel was seized on her
approaching the port of Cadiz without previous knowledge of the
blockade; that she never was turned away and "permitted to go to
any other port or place;" that she was "detained" for several days,
and then sent in for adjudication without being ever put into the
possession of the captain and crew so as to enable her either
"again to attempt to enter" the port of Cadiz or to sail for some
other port; that while thus detained, the commander of the
blockading squadron drew the captain of the
John into a
conversation which must be termed insidious, since its object was
to trepan him into expressions which might be construed into
evidence of an intention to sail for Cadiz should he be
liberated;
Page 8 U. S. 202
that availing himself of some equivocal, unguarded, and perhaps
indiscreet answers on the part of the captain, the vessel was sent
in for adjudication, and on those expressions was condemned.
This Court is of opinion that these facts do not amount to an
attempt again to enter the port of Cadiz, and therefore do not
amount, under the treaty between the United States and Great
Britain, to a breach of the blockade of Cadiz. The sentence of the
Court of Vice-Admiralty in Gibraltar therefore is not considered as
falsifying the warranty that the brig
John was American
property or as disabling the assured from recovering against the
underwriters in this action, and the testimony in the case shows
that the blockade was not broken.
The judgment of the circuit court is to be reversed with costs,
and it is to be certified to that court that judgment is to be
entered on the special verdict for the plaintiff.
Judgment reversed.
