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1806. schooner Charlotte, captain Thrift, and carried into New-Provi

dence, on the 3i1 day of August ensuing, where James M.Keiver, master of the said brig, entered a protest. The brig and cargo were libelled in the Vice Admiralty Court, 'at New-Provi. dence, and were both condemned, except the property in the policy insured, touching which the following proceedings were had at New-Providence.

On the 26th of August 1799, Don Calderon petitioned the Court of Vice-Admiralty, stating that he was possessed of passports from the British minister, &c., and praying restitution of his effects. On the 2d of September, the Judge pronounced sentence, which, so far as it relates to the present

question, expressed a doubt upon the construction of the British minister's passport; and directed an inquiry to be made, whether it was the minister's intention to protect the effects of Don Calderon, to the extent claimed. (1) On the 12th of September 1790, all the goods were restored to Don Calderon, on his giving security, to abide the 1806. final decree, except a trunk of valuable articles, which had been wag lost after the capture; and for which the judge refused to make the captors responsible.

restored (1)The opinion of the Judge of the Court of Vice-Admiralty (Judge Kelsall) upon the general character and operation of diplomatic passports, appears sufficiently interesting, to justify its insertion at length.

DECREE. .“ The only shipment in this vessel, that has occasioned me any “ besitation, is that of Don Alvarez. This gentleman is a Spanish subject, but “ to exempt his property (of the value of eight or ten thousand dollars) from " the usual consequence of capture, he has produced a paper, which has “ given rise to no small argument and discussion. It is a letter of licence from 6 his majesty's ambassador with the American states, Mr. Liston, by which or the commanders of vessels of war are requested to allow Don Alvarez to pass, with his domestics, baggage, and effects. It is said, that this

paper, s from its language, not being mandatory, never was designed by Mr. Liston s to be viewed as a safe conduct; that it is merely an expression of civility, a si complimentary act, intended to procure to Don Alvarez polite treatment, and “ to protect himself, servants, baggage, and the customary viatica, or articles

necessary for his use during the voyage, and no more; but by no means, to “ enable him to carry furniture, carriages, and other goods, to so great an “ amount as the property in dispute; that the document is not in the usual “ and proper form; and, finally, the right of ambassadors, to protect by their * licences, more than has been here conceded to them, has been contested, on A tive ground, that it would defeat the operation of the prize act.

" The safe conduct of ambassadors will not, I apprehend, be often the subject of consideration here; and still more rarely will it happen, that there “ wilt be any greater occasion to dispute, or deny, the privilege claimed, than ' there exists in the present if, however, the right of ambassadors to grant i licences, whereby enemy, or contraband goods, may be protected from cap, “ ture,during their passage through the sovereigni’s dominions (which is the case

more especially alluded to by Blacéstone) (1) or even to the territories of the

enemy, which is the case l.ere, be admitted in its fullest extent; still it must “ be granted, that to insure proper respect to his act, attention should be so paid to the forms prescribed or recommended by the writers on the law of “ nations; I mean, as Vattell expresses it, to enumerate, and categorically ex

press, every thing intended to be comprehended. Here no enumeration has “ been made; but, instead thereof, a word has been inserted, of an import so s general, that it may be construed to include any thing and every thing, of any “ amount and of any kind.

I may, I trust, without derogating in the least from the respect due to his excellency, the ambassador, be permitted to doubt, whether, when he wrote

(1) 1 vol.Com. 259, 260.

sit the

The property received hy Don Alvarez Calderon, in enn. sequence of those proceedings, was carried by him to the Havanna, but never delivered to the said Blain, in the bill of lading mentioned, nor accounted for to the plaintiffs.

On the 31st day of August and the 1st of October 1799, the plaintiffs abandoned the property insured to the defendants, stato ing in the former letter, particularly, that “they had received “ orders from Don Calderon to do so;" and thereupon demanded payment for a total loss: which the defendants refused to pay, but offered to pay an average loss on the goods damaged and . stolen. Don Alvarez Calderon has not paid to the plaintiffs the whole, or any part of their advances before mentioned: and no property insured on the homeward passage, has been shipped by him or his order, for account of the plaintiffs, nor hath any part of

“ the passport, he really meant to give it the full purport of which it is sug.

ceptible.

“ The situation of Judges of the Vice-Admiralty Courts is well known to " Mr. Liston. If, on the one hand, they are bound to respect the right of “ ambassadors, there are, also, duties to fulfil towards those who claim the “ benefits of the prize act. And hence I do conclude, that in extending the “ privileges or immunities of a passport, beyond what is commonly done, he

would have adopted a term of more precise and determinate signification, " than the one he has used. Besides, it is very evident that Mr. Bond, the con. si

sul, who, I dare say, did see this licence, and who ought, and, I presume; does, know better ihan any person here, what the ambassador really intended, takes no notice whatever of "effects,” but confines his consular licence;

or pass, which he granted eight days subsequent to that of Mr. Liston, to “ the persons and baggage of Don Alvarez and his servants. Don Alvarez “himself, too, by insuring so carefully against capture, seems to have enter. “tained a different opinion of this safe-conduct at Philadelphia, from that “ which he holds in this place. I will not, though, take upon me tú say, that it " is not possible, but that Mr. Liston might have been aware of the purpose to “which his passport was intended to be applied; and that he might have “ de this a occasion, for the exercise of the extraordinary powers at. “tached to his station and character. If this prove to be the case, I shall dismiss " the libel, and leave the captors, if they think themselves aggrieved, to seek “ redress elsewhere. My duty, therefore, in the first place, is to be satisfied of "what was the ambassador's meaning. For this purpose, I decree, that an

exact enumeration of the articles (exclusive of the baggage, the books, and

every thing necessary for the prosecution of his voyage, which, if it has not " been done, i direct may be immediately given up) that have been shipped

by Don Alvarez, be made out, and that it be transmitted to his excellency the ainbassador, with a request that he would certify to this Court, whether any, or what, things therein specified, were intended by him to be protected from capture by his licence. In making this enumeration, I trust that the greatest care will be used to prevent injury; and that the same be done in the presence of some person appointed by the claimant.”(1)

(1) Upon receiving Mr. Liston's explanatory certificate, the whole of the pro. perty was ordered to be restored absolutely.

the

1806. thic remittances in the policy mentioned, been made in bills of

exchange.

The questions for the opinion of the Court are,

1st. Whether, under all the circumstances, the plaintiffs had an insurable interest in the property, mentioned in the policy, out and home, or either? 2d. Whether, if they had such interest, it is sufficiently insured by this policy, to entitle them to recover in the present action, as fór a total loss? 3d. Whether, if they are not entitled to recover as for a total loss, they are entitled to recover as for a partial loss, and to what amount ? 4th. Whether they are entitled to a return of premium on the return voyage, and to what amount?

It is further agreed, that the judgment of the Court shall be rendered by thein, in such form and for such sum, if any, as shall be best calculated to effectuate their opinion upon the foregoing questions.

The cause was argued in March term 1806, by Levy and Dallas, for the plaintiffs; and by Ingersoll and Hopkinson, for the defendants.

For the plaintiffs, it was insisted: 1st. That the advance and lien, gave them an insurable interest in the effects of Don Cal. deron; Park, 282. 1 Bl. 103. 1 Burr. 489. Park, 267, 269. 8 T. Rep. 154. Park, 11. 3 Burr. 1410. Park, 270. 8 T. Rep. 13. i Bos. & Pull. 315. 323. 216. 6 T. Rep. 478. 483. 1 Marsh. 81. 91. 111, 112. 2 Bos. & Pull. 240. 75.; that the nature of their interest was fully communicated to the defendants; that they had taken every precaution to secure the lien, by retaining the possession of the effects, and consigning them to their agent at the Havanna, to be delivered to Don Calderon, only upon re-payment of the money advanced; that the capture took from the plaintiffs the possession of the property, and, with it, their lien; thereby constituting a total loss, on which they had a right to abandon; 2 Burr. 694. 2 Emerig. 188. 194, 5. 3 Poth. B, 3. C. 3. art. 1. 8. 3. that the restitution to Don Calderon was not a restitution to the plaintiffs; but, on the contrary, was destructive of their possession and lien; and that although the goods were, in fact, afterwards carried to the Havanna by Don Calderon, they were never delivered at the port of destination, to the consignee of the plaintiffs, within the spirit and meaning of the policy, any more than if they had been carried thither by the captors. 2d. That the defendants have virtually acknowledged the right of the plaintiffs to recover, by offering to pay an average

loss upon the property damaged and stolen. 3d. That, at all events, the policy contemplates two distinct adventures; to wit, an outward cargo, and a remittance, either in cargo, or in bills of exchange (providing, in the latter case, for an abatement of seven and

a half

a half

per cent. premium) and as no risque has been run of either 1806. kind, upon the return voyage, there should be a proportional return of premium. Park, 367. (5 edit.) 377, 8. 3 Burr. 1237. ? Marsh. 564. 567. 569. 561 to 571. 1 Bos. & Pull. 172.

For the defendants, it was insisted, 1st. That their contract was with Don Calderon, through the agency of the plaintiffs; that the plaintiffs never had an insurable interest, or, if they had, they have not insured it; for, the insurance is made on the effects of Don Calderon, on his account and risque; and although they are consigned to Blain, at the Havanna, it is expressly " for Don Calderon;" 1 Ld. Raym. 271. 12 Mod. 156. that there was no idea of a lien, in the origin of the transaction, but a perfect reliance on the honour of Don Calderon; that although two persons may insure distinct interests in the same subject, it must be upon

distinct contracts, and for distinct premiums; and that Don Calderon, in case of a legal loss, might have sued on the policy, though he had paid his debt to the plaintiffs; and thus if they might sue, their debt not being paid, two interests would be insured by the same contract, for a single premium. 2d. That the defendants had complied with their contract, the property being restored to, and remaining in, the possession of its owner, for whom the insurance was made, at its port of destination; and that the insurance was against the perils of the sea, and of war, but it was not an insurance against the misconduct of Don Calderon, in retaining the property, without paying the debt. 3d. That the voyage was entire; for an entire premium of twenty per centum, varying the amount of the premium, but not the entirety of the voyage, according to the manner, in which the returns should be made. Park. 440. 377. 2 Marsh. 572. Doug. 751.

The cause was held under advisement, until the 17th of Jantary 1807, when the opinions of the Judges, who had heard the argument, were delivered.

TILGHMAN, Chief Justice. My opinion on the first point will be rendered unnecessary, by the opinion which I shall deliver on the second point; because, granting that the plaintiffs possessed an insurable interest, I am of opinion that it clearly appears from the facts stated, that they ordered no insurance, and that no insurance was made for them, in any other capacity, than as agents of Don Alvarez Calderon: consequently, they cannot recover for a total loss, as Don Alvarez Calderon has accepted that part of the property which was saved, and thereby made his election to claim only for a partial loss. The instructions of the plaintiffs for effecting the insurance, were to insure expressly for arid on behalf of Don Aivarez Calderon. It is true, they insured only 13,750 dollars, although the whole effects of their principal amounted to 18,733

dollars;

1806. dollars; and they give the reason, that 13,750 dollars covered

the amount of their advances, including premium, commissions, &c. The defendants might well suppose, that the plaintiffs were to hold this policy for their own security, in case of loss, although the insurance was made for Don Alvarez Calderon; and that this was the fact, appears from the agreement, dated the 11th of June 1799. But it is not stated, that this agreement was disclosed to the defendants: on the contrary, there is one circumstance which goes far towards convincing me that no such disclosure was made. It is this: By the agreement, the outward cargo was to be at the risk of Don Alvarez Calderon; but the memorandum at the foot of the policy, contains a covenant, that the inward cargo should he shipped on account of the plaintiffs. The plaintiffs contend, that they had a lien on the goods, and that it so appears by the bill of lading, and their letter to Mr. Blain. But, in my opinion, those papers prove directly the contrary. By the bill of lading, the goods are deliverable for Don Alvarez Calderon, to P. Blain; so that Don Alvarez Calderon might have compelled Blain to give him possession of the goods, before the expiration of the fifteen days, which were allowed for payment of the plaintiffs’ demand. The plaintiffs, in their first letter to Blain, declare that the respectability of Don Alvarez Calderon's character was a sufficient guarantee, for the honourable execution of his agreement. And even in their second letter, although they began to apprehend difficulty from the capricious temper of the Don, they gave no intimation of any expectation, that their agent should hold the goods till he received payment of their demand.

Suppose Don Alvarez Calderon had paid the plaintiff's account; can it be contended, that he could not recover for his own use, on this policy, the amount of the loss, that he has actually sustain. ed? And, if he could, does it not inevitably follow, that the plaintiffs cannot recover for their own use? If they can, one insurance effected for one premium, may be made to cover two different interests, vested in different persons. Besides, the plaintiffs attempt, most unreasonably, to make the defendants answerable for a risk, which they never meant to run; that is, for the integrity and good conduct of Don Alvarez Calderon. And after that gentleman has received the property, which was restored to him by the British Court of Admiralty, the defendants are called on to answer for it, as being lost. To render the impropriety of this demand the more complete, the plaintiffs made the abandonment, on which they found their claim, expressly by order of Don Alvarez Calderon. Nothing can be clearer than that the plaintiffs, throughout the whole of the transaction of this insurance acted not for themselves, but as the agents of Don Alvurez Calderon.

3d. On the third point there is 110 difficulty, Undoubtedly, the plaintiffs may recover for the partial loss, s stained by Don Alva

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