1804 BARING and Others abouts, being at present in the port of Philadelphia and bound for Hamburgh, loaded with fundries, per manifeft: that after this fhip has been visited and before his departure he shall make oath against before the officers authorized for this purpofe, that the faid fhip CHRISTIE. belongs to one or more citizen or citizens of the United States of America, the act whereof shall be placed at the foot of these prefents. And in like manner that he will keep and cause to be kept by his crew the maritime ordinances and regulations, and enter a lift figned and confirmed by witneffes, containing the names and furnames, the place of birth, and refidence, of the perfons compofing the crew of his ship, and of all those who fhall embark therein, whom he fhall not receive on board without the knowledge and permiffion of the officers thereto authorizing. And in every port or harbour where he shall enter with his fhip he shall show the prefent permiffion to the offi cers authorized thereto, and shall make a faithful report to them of what has paffed during his voyage, and he fhall carry the colours, arms, and enfigns of the United States during his fЯd voyage. In teftimony whereof we have figned these presents, and have caused the seal of the United States to be thereto affixed, and to be counterfigned by A. E. deputy collector at Phi. ladelphia, the 30th of May 1795." The special verdict then fet forth certain facts relative to the ownership of the Mount Vernon, and her register and certificate of registry, and other documents, the regularity of which as applied to the voyage infured were queftioned in the argument. But it is unneceffary to ftate thefe and other facts, upon which no opinion was given by the Court. It is fufficient, in order to [401] raife the only point upon which the judgment ultimately turned, to ftate the finding of the jury, that the documents stated were the clearance, regifter, certificate of registry, manifeft, and pass port relating to and on board of the said ship for the voyage on which fhe failed from Philadelphia on the 2d of June 1796. That before the making of the policy the plaintiffs had determined that the fhip after touching at Cowes fhould proceed from thence to London, and there finish her voyage, which was not known to the master at the time the failed from Philadelphia; who then intended after touching at Cowes to proceed to Hamburgh and there finish the voyage. That the fhip was built within the United States of America in the beginning of the year 1796; and when she failed from Philadelphia, until, and at the 1804. BARING and Others against CHRISTIE. time of the capture after mentioned, was the fole property of one Duncanfon, who was born a British fubject, but was domiciled, and refided and carried on trade in the United States of America from August 1794 till after the 11th of August 1796; but was not entitled by the laws of the United States to be na turalized and become a citizen of the United States at the time the infurance in queftion was effected, nor when the ship failed on the voyage infured, or was captured, nor until the 11th of October 1796, on which laft-mentioned day he was naturalized and became a citizen of the United States. That on the 9th of June 1796 the fhip, while proceeding on her voyage from Philadelphia to Cowes, was with her cargo captured as prize by a French cruizer, and was afterwards taken into the port of St. John in the Spanish island of Porto Rico; and while the remained there she and her cargo were preceeded against by the captors in the French provifional tribunal of prizes in St. Domingo, The special verdict then fet out the fentence of condemnation of [402] that court (upon which alfo much argument turned); and then fet forth the 12th, 23d, 25th, and 27th articles of the treaty of 1778 between America and France; by the 25th article of which "it is agreed (a) that in cafe either of the parties thereto should "be engaged in war, the fhips and veffels belonging to the sub jects or people of the other ally must be furnished with fea"letters or paffports, exprefling the name, property, and bulk "of the ship, as alfo the name and place of habitation of the "mafter or commander of the faid fhip, that it may appear there"by that the fhip really and truly belongs to the subjects of "one of the parties; which paffport fhall be made out and "granted accordin to the form annexed to this treaty," &c. The fpecial verdict concluded by fetting forth two acts of the United States, one impofing a duty on the tonnage of ships, and another regulating the registering of fhips; the object of which was to difcriminate fhips of the United States and owned by American citizens from those of foreign countries or owned by foreigners. The application of thefe acts, which alfo furnished much matter for argument, became in the event unneceffary to be confidered, (4) This is taken from the American copy, which, fo far as refpects the point in judgment, correfponded with the French copy. In other. respects there were variations, which furnished ground of argument on other parts of the cafe not material to be stated, X 2 The 1804. BARING and Others against CHRISTIE. * 403] The cafe was argued at great length and with much ability, upon a variety of grounds, by Puller for the plaintiffs in error in Hilary term laft, and by R. Carr for the defendant in Eafter term following: But as judgment was ultimately given upon an objection to the want of a defeription in the paffport of the place of habitation of the mafler of the fhip, which rendered it unneceffary for the Court to give any opinion upon the other points made at the bar, it is needlefs to detail the arguments. After time taken to advife upon the cafe the judgment of the Court was now delivered by Lord ELLENBOROUGH C. J. This cafe comes before the Court on a writ of error from the Court of Common Pleas, upon a special verdi& found upon the trial of the caufe before Lord Alvanley, to whofe directions on that trial a bill of exceptions was tendered. And on the argument here feveral confiderable questions have been raised, and difcuffed with great learning and ability on the one fide and on the other; and if it were neceffary for us to determine the feveral points which have been raised, as to whether the fhip did or did not fail on the voyage infured; whether the fhip were or were not an American ship, by reafon of the tonnage act of the United States of that country; whether the paffport, fuppofing its form unobje&ionable, were a fufficient document, owing to fome vice in the mode of obtaining it; whether the evidence given of the ship's condemnation were properly received; and whether fuch sentence, if properly received, be conclufive against the ship being American; it would be proper to ftate the record more at length than can be now required; as we think the objection which has been made to the form of the paffport is an answer to the claim of the plaintiffs in error. It will therefore be fufficient very fhortly to state so much of the special verdict as applies to that point only. This action is on a policy of infurance, dated the 18th of [404] June 1796, on goods on board a fhip called the Mount Vernon, an American ship, at and from Philadelphia to London, with liberty to touch at one port in the Channel. And the special verdict, after finding the making the policy, the subscription of the plaintiffs in error, the intereft as averred, the failing of the ship, and other matters not material to the ground of our decifion, finds that by the 25th article of the treaty between France and America, which treaty was dated the 6th of February 1778, it was provided, that 66 1804. and Others against CHRISTIE. BARING "that in cafe either of the parties fhould be engaged in war, "the fhips and veffels belonging to the people of the other "ally must be furnished with fea-letters or paffports expreffing "the name, property, and bulk of the fhip, as also the name AND PLACE OF HABITATION OF THE MASTER OR COM"MANDER of the faid fhip, that it may appear thereby that the ship really and truly belongs to the subjects of one of the "parties; which pafs fhall be made out and granted according "to the form annexed to the treaty." And the fpecial verdict further finds the form of the passport, which the fhip had on board at the time of the capture, which was in the French, English, and Dutch languages, in which there is no mention made of the place of habitation of the mafter, unless it be in that part of the pafs, which was in French, and ran in this form: "To all who fhall fee thefe prefents, be it known, that leave "and permiffion has been granted to George G. Dominick, "master or commander of the hip called the Mount Vernon, of "the town of Philadelphia, of the burthen of 42433 tons or there"abouts, being at prefent in the port of Philadelphia, and bound "for Hamburgh, loaded with fundries," &c. &c. not neceffary to ftate. Now as the description of the ship in the faid policy clearly contains a warranty that he was an American fhip, which induces a neceflity of her being documented, as American ships [405] are required to be by the treaties fubfifting between that State and France; and as the fpecial verdict has not found what the form of the palport was which was annexed to the treaty, we were defirous, if it could have been afcertained, to have had it made a part of the special verdict; as by that we might have been enabled to have decided more fatisfactorily to the perfons interested in this infurance as to the form of the passport than we can as the cafe now ftands: and if we had thought it fufficient, then upon the other points which have been made in argument. But as this matter has not been added, we need only fay, whether the pafport found on board the fhip be or be not conformable to the requifites prescribed by the 25th article of the treaty; that is, whether the town of Philadelphia can by any fair construction be referred to Dominick, the mafter of the ship, or whether it do not according to the rules of found construction relate, not to him, but to the fhip: and, if it do, the confequence is that the fhip had not fuch a passport as is required by this article of the treaty. And giving every weight to the arguments X 3 ufed 1804. BARING ufed in fupport of the paffport, we do not think that we can, without doing great violence to the plain and obvious import of its language, so conftrue it, and say that the passport is that and Others againft which the treaty requires. The rule of law as well as of gramCHRISTIE. mar is that " ad proximum antecedentem fiat relatio, nifi impediatur fententia;" for which, if authorities were wanting, Jenkins Centuries, 180, Dyer, 46. b. and 5 Co. 68. Lord Cheyney's cafe, may be referred to. In this passport " the ship called the Mount Vernon" is unquestionably the laft antecedent; and though it has been faid that the port, and not the town, of Philadelphia is the proper description of a ship, yet as a port may be : [406] within a town, there is no inconfiftency in describing a ship as of the town within which the port lies; there is nothing in the matter which neceffarily prevents its reference to the hip, and applies it to the mafter. But the proper reference does not in this cafe depend merely on this rule; for the words " of the burthen of 424 tons," which is a continuance of the fame sentence, and is a further description of the fame thing, can refer only to the hip and of this opinion Lord Alvanley appears clearly to have been in the cafe of Baring v. Claggett, 3 Bof. & Pull. 212.; only that it was unneceffary in that cafe to decide upon the ground of this conftruction of the paffport, inasmuch as that. cafe ftated that the fhip had on board this paffport, "together with the ufual documents taken out by American vessels," under the terms of which general admiffion Lord Alvanley thought the Court at liberty to presume that she had on board a fea letter expreffing the name and place of abode of the mafter, conformably to the treaty. In deciding merely on this point, all other questions between the parties remain open for future decifion, if the plaintiffs in error, in an action to be brought against any other underwriter, fhall be able to shew that the passport used in this case is that which American ships ought to be provided with; either by giving evidence that it is according to the form annexed to the treaty, or that which has been adopted by fome fubfequent treaty. As the cafe now ftands, our opinion is, that the judgment of the Court of Common Pleas given for the defendant must be affirmed. Judgment affirmed. |