It may be a case of some suspicion; but no fraud is proved; and no satisfactory conclusion of fraud can be derived from the facts. To adjudge this transaction, fraudulent, would be, to substitute suspicion and presumption for proof, in a case where no adequate motive for fraud appears, and where no fraud has been found by a jury. My opinion is, that this cause has been rightly determined by the Supreme Court. BRONSON, Senator. This was an action brought by De Wolf, in the Court below, to recover 20,000 dollars, insured by the defendants below, The New York Firemen Insurance Company, on the cargo of the brig George Washington laden at New York, with liberty to discharge at Havana, Laguira or Porto Cavello, the premium being regulated according to the length of the voyage, and the number of ports visited. This cargo was purchased and shipped under a contract with Moses E. Levy, of St. Thomas, deliverable at either of the above ports, as he might elect; and the price of freight regulated according to distance. It was captured between Havana and Laguira, and condemned as Spanish property. This Levy turned out to be an army contractor, and intended the cargo for the Spanish troops. ALBANY, N. Y. Firemen V. De Wolf. Case stated. The ques Insurance The important question is, whether this was American property; it being warranted such, by the assured and here tion. it may not be improper to remark, that, as warranties form warranties an important part of these contracts of insurance; and, from should their nature, the assured only can know the truth or falsity formed. of them, the interests of commerce, as well as public justice, require that they should be strictly performed. be strictly per In the present case, if the cargo belonged to any one other If cargo not than an American, it constituted a good defence to the ac- American, po licy void. tion. It is of no importance, therefore, whether it should prove to be the property of Levy, the Dane, or of the Spanish government; for, although in the first case (it being still neutral) the risk would not be increased, yet the underwriters would, in either event be discharged. The contract would be void ab initio. De Wolf having, in the out-set, ALBANY, N. Y. Firemen Insurance V. De Wolf. violated the contract on his part, no risk was ever undertaken by the insurers. But a careful examination of all the facts and circumstances, attending this case, has brought me to the conclusion, that the cargo, when captured, was American, according to the terms of the warranty; and for the reasons assigned at length by the Court below: But it was 1. That the title had not vested in Levy, at Havana, he American. And why having refused by his agent, to receive the cargo at that port. 2. It does not appear that De Wolf knew, that it was ultimately destined for the Spanish troops. Objections. Obviated. 3. His warranty superseded the necessity of disclosing to the underwriters, any circumstances in relation to the national character of the property, or the transactions of the voyage. It remains to reconcile some of the circumstances attending this transaction, which have been urged by counsel against the American character of the property, with the above result. I shall do this, without inquiring whether these are matters which should have been referred to the Court and jury below, as contended upon the argument. The circumstances urged with the most plausibility and effect are, 1. That no payment was to be made, on the delivery of the cargo in the West Indies; and hence the inference, that it was paid for in New York, and became the property of Levy at that place : 2. That Levy exercised acts of ownership, in controlling the property at Havana by his agents; 3. The false and deceptive instructions relative to the disposition of the cargo given by De Wolf to Hernandez & Chavitau; and by them again to their agents at Laguira and Porto Cavello. It does not appear to me important, when, how, or where Unimport- the payment was made. The parties might arrange that to where pay suit their interest or convenience, without affecting the ment was to be character of this property. Levy would have been legally ant when, how made. bound to pay for the cargo, freight and insurance, whenever proof should have been furnished of the safe delivery ac cording to contract; and if, in the meantime, he should have advanced for a part, or the whole amount of the cargo, he would be entitled to recover back the advance, on the failure of De Wolf to fulfil on his part. Beside, from the nature and terms of the contract, De Wolf would not be likely to have received payment in the West Indies, unless it were in bills of exchange; for it seems his first wish was to procure a freight for his brig; and he did not expect, therefore, to require his own funds to load her; and the insurance of his money home, would probably have cost nearly as much as that on the cargo out, which was 7 per cent. It will be recollected, that he was to receive but 5 per cent. for his profit on the whole transaction. It was proper, and, indeed, necessary to alter the bill of lading at Havana, when the destination of the brig was altered. The underwriters must have contemplated such an alteration; and this too by Spanish agents. To have made a new bill of lading at this port, would have exposed the cargo to still stronger suspicions and greater risk; and this could not have been done without manifest absurdity and falsehood on the face of it; the cargo not having been shipped at that place. ALBANY, N. Y. Firemen V. De Wolf. Bill of lading properly altered. Deception As to the deception practiced by De Wolf and the agents, not in a matein ordering a disposition of the property, its existence is to rial point. be regretted. It is desirable that the utmost fairness and consistency should be stamped on these transactions throughout. But I cannot perceive that the underwriters have any cause to complain. It must be conceded, that if this cargo had been consigned directly to Levy himself, or even to the Spanish Intendant, it would not have invalidated the policy. Although the cargo was ordered to be sold, when it appears no such thing was intended, yet it was placing it under the ordinary circumstances of American cargoes, bound to these markets for sale. It was a deception calculated to lessen the risk, and benefit the underwriters; as it served to impress more strongly on the property its real and American character, than would have been done by a naked consignment. ALBANY, N. Y. Firemen Insurance V. De Wolf. The case evidence con sidered. WHEELER, Senator. This case would seem to depend on one of the following questions: 1. Was the delivery of the cargo to Levy, either in fact or construction of law, made in New York? 2. Or, if not made there, was it made to Hernandez & Chavitau, as the consignees of Levy, on the arrival of the brig at Havana? If the delivery was made to Levy, either in fact, or in construction of law, at any time previous to the capture or condemnation of the cargo, no question is made, but that the warranty of American property was violated, he being, at the time of the delivery, a resident of St. Thomas. It is in proof that Levy, a resident merchant of the neustated, and the tal or Danish Island of St. Thomas, entered into a negotiation in the city of New York, with De Wolf, an American citizen, and a merchant of that place, for the purchase of a quantity of provisions. This negotiation terminated in an agreement between the parties, the terms and conditions of which are contained in their respective letters, bearing date the 21st July, 1818. All the evidence throwing light on this transaction, is contained in the letters of contract; in the letters of instruction to Capt. Pratt, the master of the George Washington; in a letter from De Wolf to Hernandez & Chavitau, of Havana; in the letters of advice from the latter to their correspondents at Porto Cavello and Laguira, and in the sentence of condemnation by the Vice Admiralty Court of the Republic of Venezuela. It is principally from the above correspondence, that the facts in this case are to be deduced: and, prima facie, there is nothing upon the papers, when viewed separately, to falsify the stipulation that the cargo was American property. But when we connect these papers, and examine them as originating in, and growing out of one entire adventure, the evidence which they afford is by no means obscure. Negotiation between Levy and De Wolf. The negotiation, between Levy & De Wolf, was settled by their agreement on the 21st of July. On the face of that agreement, De Wolf contracted to purchase and to ship on board the Warrior and the George Washington, at the port of New York, a certain quantity of provisions; and to deliv er the same, at a stipulated price, for the freight, either in Havana, Laguira, or Porto Cavello. ALBANY, N. Y. Firemen Insurance V. De Wolf. Was the purchase originally made on the account and at the risk of Levy? or was it a contingent agreement, resting upon a precedent condition? Levy says, in his letter to De Wolf, (and, with the exception of this letter, it will be perceived that his name was cautiously concealed as a party to the voyage,) "I am desirous of purchasing of you, gent. deliverable at the Havana, Laguira, or Porto Cavello, a certain quantity of beef, pork, &c.," and he closes by agreeing to pay freight, at a certain or fixed rate per barrel. Whether sale was contin Levy's letter, Wolf's If this letter and De Wolf's answer were the only evi- And dence in the case, then the delivery would appear to rest on swer. a precedent condition; and Levy would not have been bound to make payment for the cargo, including insurance, commission and freight, before the delivery; but they are followed by the letter of De Wolf to Hernandez & Chavitau, and stand connected with their acts in relation to the George Washington and her cargo, after her arrival at the port of Havana. This correspondence, and these acts go far to elucidate the real character of the voyage. Levy was a resident merchant of St. Thomas, a Danish and a neutral island; but he stood compromitted with the Spanish government, as a contractor or purveyor of navy or army supplies; and there is nothing in the proof to lessen the presumption, that he was, in reality, a native subject of Spain, and a mere denizen merchant at St. Thomas. Do an National character of Levy Letter Hernandez In the letter of De Wolf to Hernandez & Chavitau, enclosing the invoice of the cargo, he requests them to receive Chavitau. and dispose of the same to the "best advantage on his account" and he is utterly silent, as it respects the contract of delivery, at a price certain to Levy. Here, then, was evident design, in case the vessel should be boarded by an enemy of Spain, to conceal the true character of the property; or why not direct Hernandez & Chavitau to deliver the cargo to Levy, on his complying with the conditions of the agreement of the 21st July. The agreement was to deliver to Levy, at a price certain: the letter of advice directs the cargo to be "sold to the best advantage on De Wolf's account." to & |