4 Day 179 | Conn. | 1810
This is an action on a policy of insurance; and the only question is, whether the decree of a foreign court of admiralty condemning the cargo of the vessel as enemies’ property, is conclusive evidence of the fact.
There is no controversy with regard to the rule established in Great Britain. It has been there decided, that the decrees of foreign courts of admiralty are conclusive evidence of the rights they establish, and the facts they find ; and that where a ship or cargo is condemned for a breach of neutrality as being enemies’ pro-
J*- *s conceded, that the decisions in Great Britain have no binding authority on us: and, as the - question never has been decided in this court, it is open for examination on original principles; and it is in this point of view that I shall consider the subject. I apprehend, our acknowledgment of the authority of the law of nations, and our adoption of the marine law, have established principles decisive of this question. |
The law of nations is, a rule of conduct obligatory on sovereign, independent states: and the right of capture on the high seas by nations at war is clearly a part of that law. The decrees of judicial tribunals proceeding According to the law of nations must be conclusive, as far as that law is recognised, for the same reason that the judgments of courts proceeding according to municipal law, are conclusive, as far as that law extends. In all civilized states, courts are constituted that have jurisdiction of questions of prize, and are to decide according to the law of nations. In these cases, the proceedings are in rem; and every person interested is supposed to be a party to them. Whenever, then, a court of admiralty in one country acting as a prize court, decides on the question of prize, and condemns captured property, such sentence or decree must be conclusive evidence, when the same question shall arise in any other country re-cognising the law of nations, on the same principle that the judgment of a municipal court is conclusive between the same parties, and their representatives, whenever the same question shall arise in another court in the same country where the judgment was rendered. As we have adopted the law of nations, we must take it with all its consequences; and we can have no more right to deny the conclusiveness of the sentence of a fo-. reign court of admiralty, acting as a prize court accord-
With respect to the remark, that the doctrine of the conclusiveness of foreign decrees is of modern date, it is a sufficient answer, that this is immaterial, for if the question had now arisen for the first time, the same decision must have been given, on principles coeval with the law of nations.
The same consequences must result from our having adopted the law of merchants. As the commercial intercourse between different nations could not be regulated by municipal law, it became necessary to adopt, by general consent, certain rules as applicable to all nations. As the law of nations was introduced by the custom and usage of nations, so the marine law, or law of merchants, was introduced by the custom and us,age of merchants. It may be traced to the earliest periods of the history of commerce, and is properly deemed a branch of public or universal law. Though the law of insurance is of comparatively modern date, yet it was introduced by commercial usage, and is deemed a branch of the law of merchants. In England, the law of merchants is recognised as part of the common law ; but the principles of it have
As we are a commercial people, we have, with great propriety, adopted the law of merchants common to all commercial countries, and especially the law of insurance gs recognised in Great Britain. Having adopted the law of insurance, of which the rule in question is a part, it follows that we have adopted the rule itself: for, it would lead to infinite confusion and difficulty, to admit the idea, that after we have adopted a branch of jurisprudence, the most important parts of it might be contested. At this rate, every principle may be discussed, and examined, and is to be settled anew. This would deprive us of the advantage of a well known code, perfected by the wisdom of ages, and matured by thé experience of nations.
It is true, that some foreign courts of admiralty pay little or no regard to the law of nations in their decisions. But this furnishes no reason why the rule should be varied ; for the parties may take that into consideration in calculating the risk, and settling the premium of insurance; or they may expressly provide against it in the policy. It is well settled that the insured may stipulate, that proof that the warranty of neutrality has been complied with, may be made in the country where the action is brought on the policy. As the parties can, by their own act, provide against the effect of decrees repugnant to the law of nations, there is no necessity for departing from the established rule respecting their conclusiveness.
From these considerations I am of opinion, that the sentence of the court of admiralty in this case was conclusive evidence that the cargo insured was enemies’ property ; and that a new trial ought to be granted.
The maritime code, adopted in the courts of admiralty, though a branch of the law of nations, is as much a part of the common law as those parts adopted from the feudal system. Courts of admiralty judge by the law of nations.
The record is the only evidence of the most material fact, viz. the condemnation, and is also conclusive as to all material facts it expressly finds true.
When the insured warrant the vessel neutral firofierty, they take on themselves all risks that arise on the ground of want of neutrality ; and the insurer is not holden to respond any loss by condemnation on that ground. The insured must make good his warranty in the admiralty court where the neutrality is questioned, or the warranty could have no effect.
Such condemnation is clearly not one of the casualties insured against by the policy.
New trial to be granted.