Elbers & Kraffts v. United Insurance Co.

| N.Y. Sup. Ct. | Jan 15, 1819

Spencer, J. delivered the opinion of the Court.

The plaintiffs claim for a total loss, on the ground that the vessel, having sailed on the voyage, was never heard of after-wards.; and a year, and a day having elapsed; she is, presumed to be lost. The claim is resisted, 1. Because there is no proof that the vessel ever sailed; 2. That there was- a breach of the warranty, as to the Swedish ownership of the goods, insured; Krafts, having lost his Swedish., and acquired an American character, by being domiciled here.

This last point will be first considered. The plaintiffs had a mercantile establishment, as partners, in St. Bartholomews, several years prior to February, 181,4; and it is proved, also, that Iirafts came to this country for the recovery ot his health, in 1811; and has ever since continued to reside here, being, occasionally at New-York, Philadelphia, and Baltimore, having agents at those places, who generally corresponded with, and transacted the business of the house of Elbers and Krafts, at St. Barts ; Krafts having, himself, in one instance, in 1813, made a purchase of produce for the house, which he shipped to it, when Krafts was present a: New- York; that his agents there advised and consulted with him on the business of the house, and constantly kept the house in St. Bartholomews advised of the business transactions in this country, and that Krafts applied to T. Myer, one of his agents in New-York, saying he wanted an agent in Philadelphia, and received letters to Bohlenfy Co. upon that subject. It does not appear that he had any compting house.

It is an established principle, not only in the prize courts, but in the common law courts, that shipments made by merchants actually domiciled in the enemy’s country, at the breaking out of a war, partake of the nature of the enemy’s trade, and, as such, are subject to belligerent capture. The only question then is, whether Krafts was temporarily here, or whether he was here animo manendi. He having remained in the U.S. for such a length of time, the presumption of law is, that it was his intention to reside here permanently; and he is bound 'to explain the circumstances of his residence, to repel that presumption. This is the doctrine of the British admiralty court; (1 Rob. 102.) and it is founded in good sense, and the plainest principles of policy. The fact of a person’s residing in a country, for a considerable period, leads to the conclusion that he has adopted it as the place of his residence. If the real fact be otherwise, he alone can show it. Krafts came to this country for his health; but he has not shown that the state of his health required his continuance here. We find him, on one occasion, actually purchasing a cargo to be sent to St. Bartholomews, constituting a commercial agent, and superintending the concerns of the house, by advising with, and consulting the agents of the house, in relation to their business with the firm. Indeed, there is no proof, that Krafts ever talked of returning to St. Bartholomews, or that he ever explained himself to any one, that he was here for mere temporary purposes.

In the case of the Jonge Klassima, (5 Rob. 297.) the claimant took the ground, that he was not to be deemed a resident in the hostile country, because he had no fixfed eompting house there. Sir Wm. Scott declared that circumstance not to be decisive. He asks, how much of the great mercantile concerns of the kingdom are carried on in coffee-houses ? He says, it is a vain idea, that a eompting house, or fixed establishment, is necessary .to make a man a merchant of any place; if he is there himself, and acts as a merchant, it is sufficient.

In Livingston and Gilchrist v. Maryland Insurance Company,, (7 Crunch, 542.) Mr. Justice Story says, “ it is perfectly immaterial what is the trade in which the party is engaged, or whether he be engaged in any. If he be settled bona fide in a country, with the intention of indefinite residence, he is, as to all foreign countries, to be deemed a subject of that country.’’ What constitutes a settlement in the country, is to be collected from all the circumstances of the case.

It seems to me not to admit of a doubt, that, by the well understood law of nations, the facts disclosed in this case, and the absence of all proof that Krafts was here, temporarily, or that he intended to return at any future time to Si. Bartholomews, are decisive, that he had an indefinite intention to remain here; and, especially, as he was actually engaged in superintending the business of his house in their concerns in this country. The warranty is, therefore, broken, and falsified; the property insured would have been liable to belligerent capture and condemnation.

It becomes unnecessary to examine and decide the first point. With regard to the return of thepremium, as the policy never attached, and as there is no ground to presume any fraud intended on the underwriters, the plaintiffs are entitled to it; the court, however, have not the requisite facts to enable them to pronounce how much is, to be recovered, This, however, the parties can adjust between themselves.

Judgment fbr the plaintiff, for a return of the premium only.