1803. LOTHIAN and Others v. HENDERSON and Others. they meant no more than to describe the vessel as they found it in the instructions of their correspondents; and that the meaning of this part of the policy and the understanding of the parties might be ascertained with precision, an agreement in the following terms was proposed by the brokers, and signed by all the underwriters: "Glasgow, 20th of April 1797. "Whereas doubts have arisen how far, by the insurances underwritten by us on tobacco for Messrs. Henderson, Ferguson, and Gibson, by the Catherine, there is a warranty of property, and what is to be understood by such a warranty; it is hereby declared, that in case of capture or seizure, Messrs. Henderson and Co., before they claim for a loss, must produce proofs of ship being an American bottom, and by bills of lading shew that the tobacco shall have been shipped on account and risk of Messrs. Henderson, Ferguson, and Gibson; upon which we shall settle by granting our bills at four months' date for the amount of our subscriptions, deducting the stipulated premium, in full dependence that the insured will use their best endeavour to recover the property as for account of the shippers." The Catherine sailed on the 1st of April from Nottingham in Virginia, and on the 17th of May was captured by the Dugué Trouin, a French privateer, commanded by Captain Dutache, because she had not on board a rolle d'equipage, required by the French Executive Directory, and sent into France. After a trial in the Tribunal of Commerce in the canton of Nantz, the Catherine was condemned. Of this the Respondents were informed on the 22d of August, by a letter and protest of the ship's master, Captain Cazneau. Being thus certified of the capture, the Respondents transmitted the captain's protest to their brokers, directing them to lay it before the underwriters, and request them to settle the loss according to agreement. They transmitted at the same time, according to their undertaking, the bill of lading of the Catherine, which expressed that the cargo was shipped on account and risk of Henderson, Ferguson, and Gibson, citizens of the United States, and a certificate by the American vice-consul at Nantz, stating that the ship's papers were lodged in the Tribunal of Commerce of that city. These papers were the only papers which, at the time when the Catherine sailed, were furnished or could be furnished to American ships; which circumstances the Respondents offered 1803. LOTHIAN and Others v. HENDERSON offered to prove to the Appellants, the underwriters. The Appellants, however, refusing to pay the loss, the Respondents brought an action in the Court of Admiralty in Scotland. To this action the Appellants' set up the following defence: That the Catherine being called in the policy an Americau vessel, implied a warranty and Others. undertaken by the assured of that fact; that this warranty further implied that the ship should be furnished with all documents necessary to prove the neutrality; and that the sentence of the French prize court, condemning ship and cargo as enemy's property, was evidence conclusive, and not to be reargued, that the warranty had not been complied with, and therefore that the assurers were liberated. The material part of the French sentence was as follows: "The Tribunal having maturely weighed the whole matter without attending to the certificate of property of the ship Catherine, bearing date 15th June 1791, and a peculiar passport of the 26th March 1797, signed "Washington," nor to the charterparty of the first of May the same year, which proves the said ship Catherine to be the property of Citizen Anthony Davenport of Newbury, citizen of the United States; without attending farther to a manifest, bearing date the 2d of March 1797, to which is annexed a certificate of the 26th March of the same year, signed by George Risei, tax-receiver in the district of Nottingham in the State of Maryland, stating that the aforesaid ship has been expedited according to law; nor to a bill of lading, dated the 22d of March 1797, which proves that the shippers and owners of the 270 hogsheads of tobacco laden on board the Catherine, are Henderson, Ferguson, and Gibson, of Dumfries in Virginia, citizens of the United States; and that the said tobacco was expedited for their account and risk, to the consignment of Thomas Hoedt, residing at Rotterdam; considering that Captain Samuel Cazneau has not produced any muster-roll in due form, signed and attested by public officers appointed for that purpose, but merely a sort of ship's articles without any signature or date, wherein are inserted the names of ten men, said to compose the crew of the ship Catherine, without mention being made either of their native place or of their place of abode; and in corroboration of this list, six protections, granted by the United States to persons name John Cannon, &c. being part of the ship's crew, and which proves them to be citizens of the United States of America, and their having been so for a K K 2 certain 1805. LOTUTAN and Others certain number of years; considering that the 7th article of the law of 18 Nive, 3d year, which abrogated that of the 9th May 1793, cannot be recurred to, pursuant to the arrêt or resolution of the Executive Directory of the 12th Ventose, 5th year, and that and Ouers this law remains in full vigour; considering that this law of the 9th May 1793, old style, orders the ordinances and regulations of 1704, 1744, and 1778, relative to the manner of proving at sea the property of neutral ships and merchandise, to be carried into effect; considering that the 1st article of the law of 3d Brumaire, 4th year, ordains as follows: "When a declaration of war against a nation shall cause maritime armaments to take place, the Executive Directory will draw up instructions, clear and precise, the form of which shall not leave the least doubt, to the searching vessels with respect to their duty and rights;" considering that the arrêt of the Executive Directory of the 12th Ventose, 5th year, in the 4th article, in terms clear and imperative, declares lawful prize all the ships of the United States unprovided with musterrolls, and orders them to be treated as enemies; considering, lastly, that if any ship be declared a lawful prize, and treated as an enemy, the confiscation of her cargo is a matter of course; the Tribunal, in conformity with the laws above quoted, and especially with the article of the arrêt of the Executive Directory of the 12th Ventose, 5th year, decrees and declares lawful prize the ship Catherine, Samuel Cazneau master, captured by the private ship of war Dugué Trouin, commanded by Captain Dutache, together with her apparel and furniture. Decrees and declares further lawful prize all the goods and effects which compose the cargo of the said ship, since the whole, owing to Captain Samuel Cazneau not being provided with proper and regular dispatches and papers is to be deemed the property of the enemies of the French Republic." The above sentence having been appealed from to the Civil Tribunal of the department of the Lower Loire, was confirmed in the following terms: "Considering that the maritime regulations of 1704, 1744, and 1778, anterior and posterior to the treaty concluded between France and America, imperiously require that all foreign ships sailing in time of war should have on board a rolle d'equipage, or muster-roll, authenticated by the public officers of the port from which they sail, under pain of being considered as good prizes; considering that the model of the passport annexed to the treaty of 1778 requires every Anglo-American captain 1803. LOTHIAN and Others บ. and Others. captain who has obtained it, to deliver a list, signed and certified by witnesses, of the names, surnames, places of birth and abode of the people who compose his crew, and that Samuel Cazneau had but an informal and unsigned list, decrees by judg- HENDERSON ment in the last resort, that it has been rightly determined by the sentence from which he appeals; orders that the judgment shall obtain its full and entire effect; condemns the Appellant in costs." The Respondents answered, first, that there was no warranty expressed or implied in the policy; 2dly, supposing the description of the ship as an American to imply a warranty, it could not be carried farther than that she was in fact an American, and was furnished with all the documents usual and required by the law of nations, and by the treaties subsisting between America and the powers at war to prove the fact, and that evidence had been given that she had all such documents; 3dly, that the sentences of the French court were not conclusive evidence of the supposed warranty not having been complied with, for that without entering into the question whether sentences of foreign courts, if broadly and clearly pronounced on matter of fact, shut out all contrary evidence in a collateral suit arising in the courts of this country, it was sufficient to say that the sentences in question had not pronounced judgment on the fact: they did not condemn the Catherine as enemies' property, or upon any ground recognized by the law of nations, but went avowedly on the noncompliance with certain regulations of France which could not bind other nations, or the courts of other nations; and upon а statement of the treaty between France and America directly repugnant to the express words and obvious meaning of that treaty; and 4thly, whatever construction might have been put upon the policy as worded, the meaning of the parties was ascertained beyond a doubt by the posterior writing, whereby the Appellant agreed to pay in case of capture or seizure, upon proof given him merely that the vessel was an American bottom, and the goods shipped as the property of Messrs. Henderson and Co. of Virginia. The Judge Admiral decreed in favour of the present Appellants the underwriters. Upou which the now Respondents, the assured, brought the merit of that decree before the Court of Session by an action of reduction, when the Lord Ordinary pronounced an Interlocutor in favour of the assured, to which, after a representation for the Appellants, he adhered. The Appellants, the 1803. LOTHIAN ånd Others v. HENDERSON and Others. the underwriters, having petitioned the whole Court of Session, that Court unanimously confirmed the interlocutor of the Lord Ordinary; whereupon the underwriters appealed to the House of Lords. The reasons submitted on the part of the Appellants were in substance, 1st, That the decrees of the Courts of Admiralty were conclusive as to what they decided. 2dly, That the Catherine being warranted American, and condemned as enemies' property, the warranty was negatived. 3dly, The the rolle d'equipage was made a necessary document by the treaty of 1778 between France and America. 4thly, That the explanatory agreement did not vary the question between the parties. The reasons submitted on the part of the Respondents were in substance, 1st, That there was no warranty of neutrality, and that the expression of " American ship” in the policy was merely descriptive. 2dly, That supposing that expression to amount to a warranty, the assured had established by proofs that the ship and cargo belonged to Americans, and that the former had all the documents on board which could be procured at the ports of clearance. [Under this head was inserted a long examination of the several modern authorities on the subjects of warranties in policies of insurance, and of the effects given to foreign sentences as negativing such warranties.] 3dly, That the explanatory agreement relieved the assured from the effect of the sentence of condemnation, it being sufficient under that agreement to give such proofs of the ship and property being American as were required by the agreement. This case was first argued at the bar of the House of Lords in March 1802, by Dallas and Adam for the Appellants, and by the Attorney General (Law) and Alexander for the Respondents. At that time it was ordered that the case should be again argued, and an intimation was given that the Judges would be summoned to attend. Accordingly in May 1803, the case was again argued at the bar of the House (the Judges attending) by the Attorney General (Perceval), for the Appellants, and by Park for the Respondents. On this argument the counsel on both sides not only spoke |