The sentence of a foreign court of admiralty condemning a vessel
for breach of blockade is conclusive evidence of that fact in an
action on the policy of insurance.
Error to the Circuit Court of the District of Columbia in an
action on a policy of insurance on the cargo of the brig
Fame on a voyage from Alexandria, to, at, and from
Barbados and four other ports in the West Indies and back to
Alexandria, the vessel and cargo warranted American property. The
vessel arrived at Barbados, and sailed from thence for Antigua, but
on her voyage to that island was captured by a British vessel and
carried into Barbados, and there condemned in the vice-admiralty
court for attempting to break the blockade of Martinique.
The jury found a special verdict, upon which the judgment below
was in favor of the plaintiffs.
The only question arising upon this special verdict was whether
the sentence of the court of vice-admiralty was conclusive evidence
of an attempt to violate the blockade of Martinique.
This question having been several times argued (but not decided)
in the case of
Fitzsimmons v. Newport
Insurance Company, 8 U. S.
185, at this term, the counsel submitted it to the Court
without further argument.
JOHNSON, J.
The action below was instituted on a policy of insurance.
On behalf of the insurers it was contended that the policy was
forfeited by committing a breach of blockade. It is not and cannot
be made a question that this is one of those acts which will
exonerate the underwriters from their liability. The only point
below was relative to the evidence upon which the commission of
Page 8 U. S. 435
the act may be substantiated. A sentence of a British prize
court in Barbados was given in evidence by which it appeared that
the vessel was condemned for attempting to commit a breach of
blockade. It is the English doctrine, and the correct doctrine on
the law of nations, that an attempt to commit a breach of blockade
is a violation of belligerent rights, and authorizes capture. This
doctrine is not denied, but the plaintiff contends that he did not
commit such an attempt, and the court below permitted evidence to
go to the jury to disprove the fact on which the condemnation
professes to proceed.
On this point, I am of opinion that the court below erred.
I do not think it necessary to go through the mass of learning
on this subject, which has so often been brought to the notice of
this Court, and particularly in the case of
Fitzsimmons,
argued at this term. Nearly the whole of it will be found very well
summed up in the 18th chapter of Mr. Park's Treatise. The doctrine
appears to me to rest upon three very obvious considerations: the
propriety of leaving the cognizance of prize questions exclusively
to courts of prize jurisdiction -- the very great inconvenience
amounting nearly to an impossibility of fully investigating such
cases in a court of common law -- and the impropriety of revising
the decisions of the maritime courts of other nations, whose
jurisdiction is coordinate throughout the world.
It is sometimes contended that this doctrine is novel and that
it takes its origin in an incorrect extension of the principle in
Hughes v. Cornelius. I am induced to believe that it is
coeval with the species of contract to which it is applied.
Policies of insurance are known to have been brought into England
from a country that acknowledged the civil law. This must have been
the law of policies at the time when they were considered as
contracts proper for the admiralty jurisdiction, and were submitted
to the court of policies established in the reign of Elizabeth. It
is probable that at the time when the common law assumed to itself
exclusive jurisdiction of the contract of insurance, the rule
was
Page 8 U. S. 436
too much blended with the law of policies to have been dispensed
with, had it even been inconsistent with common law principles. But
in fact the common law had sufficient precedent for this rule, in
its own received principles relative to sentences of the civil law
courts of England. It may be true that there are no cases upon this
subject prior to that of
Hughes v. Cornelius, but this
does not disprove the existence of the doctrine. There can be
little necessity for reporting decisions upon questions that cannot
be controverted. Since the case of
Hughes v. Cornelius,
the doctrine has frequently been brought to the notice of the
courts of Great Britain in insurance cases, but always with a view
to contest its applicability to particular cases, or to restrict
the general doctrine by exceptions, but the existence of the rule,
or its applicability to actions on policies, is nowhere
controverted.
I am of opinion that the sentence of condemnation was conclusive
evidence of the commission of the offense for which the vessel was
condemned, and as that offense was one which vitiated the policy,
the defendants ought to have had a verdict.
WASHINGTON, J.
The single question in this case is whether the sentence of the
admiralty court at Barbados condemning the brig
Fame and
her cargo as prize for an attempt to break the blockade of
Martinique is conclusive evidence against the insured, to falsify
his warranty of neutrality, notwithstanding the fact stated in the
sentence as the ground of condemnation is negatived by the
jury.
This question has long been at rest in England. The established
law upon this subject in the courts of that country is that the
sentence of a foreign court of competent jurisdiction condemning
the property upon the ground that it was not neutral, is so
entirely conclusive of the fact so decided, that it can never be
controverted, directly or collaterally, in any other court having
concurrent jurisdiction.
This doctrine seems to result from the application of a legal
principle which prevails in respect to domestic
Page 8 U. S. 437
judgment, to the judgments and sentences of foreign courts.
It is a well established rule in England that the judgment,
sentence, or decree of a court of exclusive jurisdiction directly
upon the point, may be given in evidence as conclusive between the
same parties, upon the same matter coming incidentally in question
in another court for a different purpose. It is not only conclusive
of the right which it establishes, but of the fact which it
directly decides.
This rule, when applied to the sentences of courts of admiralty,
whether foreign or domestic, produces the doctrine which I am now
considering, upon the ground that all the world are parties in an
admiralty cause. The proceedings are
in rem, but any
person having an interest in the property may interpose a claim, or
may prosecute an appeal from the sentence. The insured is
emphatically a party, and in every instance has an opportunity to
controvert the alleged grounds of condemnation by proving, if he
can, the neutrality of the property. The master is his immediate
agent, and he is also bound to act for the benefit of all
concerned, so that, in this respect, he also represents the
insurer. That irregularities have sometimes taken place to the
exclusion of a fair hearing of the parties is not to be denied. But
this furnishes no good reason against the adoption of a general
rule. A spirit of comity has induced the courts of England to
presume that foreign tribunals, whether of prize or municipal
jurisdiction, will act fairly and will decide according to the laws
which ought to govern them, and public convenience seems to require
that a question which has once been fairly decided should not be
again litigated between the same parties unless in a court of
appellate jurisdiction.
The irregular and unjust decisions of the French courts of
admiralty of late years have induced even English judges to doubt
of the wisdom of the above doctrine in relation to foreign
sentences, but which they have acknowledged to be too well
established for English tribunals to shake, and the justice with
which the same
Page 8 U. S. 438
charge is made by all neutral nations against the English as
well as against the French courts of admiralty during the same
period has led many American jurists to question the validity of
the doctrine in the courts of our own country. It is said to be a
novel doctrine, lately sprung up and acted upon as a rule of
decision in the English courts, since the period when English
decisions have lost the weight of authority in the courts of the
United States. It is this position which I shall now examine,
acknowledging that I do not hold myself bound by such decisions
made since the Revolution, although, as evidence of what the law
was prior to that period, I read and respect them.
The authority of the case of
Hughes v. Cornelius, the
earliest we meet with as to the conclusiveness of a foreign
sentence, is admitted, but its application to a question arising
under a warranty of neutrality between the insurer and insured is
denied. It is true that in that case, the only point expressly
decided was that the sentence was conclusive as to the change of
property effected by the condemnation. But it is obvious that the
point decided in that case depended not upon some new principle
peculiar to the sentences of foreign courts, but upon the
application of a general rule of law to such sentences.
This case, as far as it goes, places a foreign sentence upon the
same foundation as the sentence or decree of an English court
acting upon the same subject, and we have seen that by the general
rule of law, the latter, if conclusive at all, is so as to the fact
directly decided, as well as to the change of property produced by
the establishment of the fact. Hence it would seem to follow that
if the sentence of a foreign court of admiralty be conclusive as to
the property, it is equally conclusive of the matter or fact
directly decided. What is the matter decided in the case under
consideration? That the vessel was seized whilst attempting to
break a blockade, in consequence of which she lost her neutral
character, and the change of property produced by the sentence of
condemnation is a consequence of the matter decided -- that she was
in effect enemy property. Can the parties to that sentence be bound
by so much of
Page 8 U. S. 439
it as works a loss of the property, because it was declared to
be enemy property, and yet be left free to litigate anew in some
other form, the very point decided from which this consequence
flowed? Or upon what just principle, let me ask, shall a party to a
suit, who has once been heard and whose rights have been decided by
a competent tribunal, be permitted in another court of concurrent
jurisdiction, and, in a different form of action, to litigate the
same question and to take another chance for obtaining a different
result? I confess I am strongly inclined to think that the case of
Hughes v. Cornelius laid a strong foundation for the
doctrine which was built upon it, and which for many years past has
been established law in England. This opinion is given with the
more confidence when I find it sanctioned by the positive
declarations of distinguished law characters -- men who are, of all
others, the best able to testify respecting the course of decisions
upon the doctrine I am examining, and the source from which it
sprung.
In the case of
Lothian v. Henderson, 3 Bos. & Pull.
499, Chambre, J., speaking upon this point, says that the sentence
of the French court was in that case conclusive against the claim
of the assured,
"agreeable to all the decisions upon the subject, beginning with
the case of
Hughes v. Cornelius (confirmed as that was by
the opinion of Lord Holt in two subsequent cases), and pursuing
them down to the present period. It is true [he observes] that in
Hughes v. Cornelius, the question upon the foreign
sentence arose in an action of trover, and not in an action on a
policy of assurance, where the noncompliance with a warranty of
neutrality is in dispute. But from that period to the present, the
doctrine there laid down respecting foreign sentences has been
considered equally applicable to questions of warranty in actions
on policies, as to questions of property in actions of trover."
Le Blanc, J. says
"That these sentences are admissible and conclusive evidence of
the fact they decide it seems not safe now to question. From the
time of Car. II. to this day, they have been received as such
without being questioned. In the discussion of the nature of such
evidence before this
Page 8 U. S. 440
house in 1776 it seems not to have been controverted, and the
cases, I may say, are numberless and the property immense which
have been determined on the conclusiveness of such evidence in many
of which cases, the forms in which they came before the courts in
Westminster Hall were such as to have enabled the parties, if any
doubt had been entertained, to have brought the question before a
higher tribunal."
Lawrence, J., also speaking of the legal effect of a foreign
sentence upon this point, says,
"as to which, after the continued practice which has taken place
from the earliest period, in which, in actions on policies of
insurance, questions have arisen on warranties, to admit such
sentences in evidence, not only as conclusive
in rem, but
also as conclusive of the several matters they purport to decide
directly, I apprehend it is now too late to examine the practice of
admitting them to the extent to which they have been received,
supposing that practice might, upon the argument, have appeared to
have been doubtful at first."
Rooke, J., Lord Eldon, and Lord Alvanley all concur in giving
the same testimony, that the doctrine under consideration had been
established for a long period of years by a long series of
adjudications in the courts of Westminster Hall.
I cite this case for no other purpose but to prove by the most
respectable testimony that the case of
Hughes v.
Cornelius, decided in the reign of Car. II., had, by a uniform
course of decisions from that time, been considered as warranting
the rule now so firmly established in England. And when the inquiry
is whether the application of the principle laid down in that case
to questions arising on warranties in actions on policies be of
ancient or modern date, I think I may safely rely upon the
declarations of the English judges when they concur in the evidence
they give respecting the fact. It is true that no case was cited at
the bar recognizing the application of the rule to questions
between the insurer and insured prior to the Revolution except that
of
Fernandez v. Da Costa, which I admit was a nisi prius
decision. But were I convinced that the long series of decisions
upon this point, from the time of
Hughes v. Cornelius,
spoken of by the judges in the case of
Lothian v.
Henderson, had been made at nisi prius, it
Page 8 U. S. 441
would not in my mind weaken the authority of the doctrine. It
would prove the sense of all the judges of England, as well as of
the bar, of the correctness and legal validity of the rule. It is
not to be supposed that if a doubt had existed respecting the law
of those decisions, the point would not have been reserved for a
more deliberate examination before some of the courts of
Westminster Hall. But the case of
Fernandez v. Da Costa
receives additional weight when it is recollected that the judge
who decided it was Lord Mansfield, and when upon examining it we
find no intimation from him that there was any novelty at that day
in the doctrine. To this strong evidence of the antiquity of the
rule may be added that of Judge Buller, who, at the time he wrote
his nisi prius, considered it as then established.
That the doctrine was considered as perfectly fixed in the year
1781 is plainly to be inferred from the case of
Bernardi v.
Motteux, decided in that year. Lord Mansfield speaks of it as
he would of any other well established principle of law, declaring
in general terms that the sentence, as to that which is within it,
is conclusive against all persons and cannot be collaterally
controverted in any other. The only difficulty in that case was to
discover the real ground upon which the foreign sentence proceeded,
and the court in that and many subsequent cases laid down certain
principles auxiliary to the rule for the purpose of ascertaining
the real import of the sentence in relation to the fact decided as
between the insurer and insured. For if the sentence did not
proceed upon the ground of the property's not being neutral, it of
course concluded nothing against the insured, since upon no other
ground could the sentence be said to falsify the warranty.
It was admitted by the counsel for the insured that, as between
him and the insurer, the sentence is
prima facie evidence
of a noncompliance with the warranty. But if they are right in
their arguments as to the inconclusiveness of the sentence, I would
ask for the authority upon which the sentence can be considered as
prima facie evidence. Certainly no case was referred
Page 8 U. S. 442
to, and I have not met with one to warrant the position. If we
look to general principles applicable to domestic judgment, they
are opposed to it. We have seen that the judgment is conclusive
between the same parties upon the same matter coming incidentally
in question. The judgment of a foreign court is equally conclusive
except in the single instance where the party claiming the benefit
of it applies to the courts in England to enforce it, in which case
only the judgment is
prima facie evidence. But it is to be
remarked that in such a case, the judgment is no more conclusive as
to the right it establishes than as to the fact it decides. Now it
is admitted that the sentence of a foreign court of admiralty is
conclusive upon the right to the property in question; upon what
principle, then, can it be
prima facie evidence, if not
conclusive, upon the facts directly decided? A domestic judgment is
not even
prima facie evidence between those not parties to
it or those claiming under them, and that would clearly be the
rule, and for a similar reason, as to foreign judgments. If between
the same parties, the former is conclusive as to the right and as
to the facts decided. This principle, if applied at all to foreign
sentences, which it certainly is, is either applicable throughout
upon the ground that the parties are the same, or if not so, then
by analogy to the rule applying to domestic judgments, the sentence
cannot be evidence at all.
Upon the whole, I am clearly of opinion that the sentence of the
Court of Admiralty at Barbados condemning the brig
Fame
and her cargo as prize on account of an attempt to break the
blockade of Martinique is conclusive evidence in this case against
the insured to falsify his warranty of neutrality.
If the injustice of the belligerent powers and of their courts
should render this rule oppressive to the citizens of neutral
nations, I can only say with the judges who decided the case of
Hughes v. Cornelius, let the government in its wisdom
adopt the proper means to remedy the mischief. I hold the rules of
law, when once firmly established, to be beyond the control
Page 8 U. S. 443
of those who are merely to pronounce what the law is, and if
from any circumstance it has become impolitic in a national point
of view, it is for the nation to annul or to modify it. Till this
is done by the competent authority, I consider the rule to be
inflexible.