ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK, In MAY TERM, in the TWENTY-EIGHTH YEAR of our INDEPENDENce. Daniel Williams against Paschal N. Smith, NEW-YORK, THIS was an action on a valued policy, on the cargo of the American ship Prosper, from New-York to Algiers, with liberty to touch at Cadiz. Premium 15 per cent, with D. Williams the usual clause against contraband, but in the margin was written " on naval stores." V. P. N. Smith To constitute a blockade so as to affect a poli cy of insurance by a violation of it, there must before the port, at the time it is entered. The animus rever The case read, at the argument, occupied the court for an hour: But it is conceived the important facts which it presented are only these: The plaintiff was owner and master of the vessel, and part owner and consignee of the be an actual cargo. For this he had signed a bill of lading to deliv- existing force er it at Algiers to his associate, Sullivan, or his assigns, &c. The vessel sailed on the voyage, insured, on the 20th May, 1800, with a cargo principally of naval stores. On tendi of an obthe 13th of July she experienced severe weather, that con- does not considiary fleet tinued until the 16th. In this time she laboured so much tinue the blockade, nor is the as to work all the oakum out of the quick work on her star- entry of a neuboard side, and her bulwark being stove in, cut water start- ter, after being ed, and plank shears split fore and aft. She made so breach of his much water as to be under the necessity of pumping if the blocka neutrality, tho every quarter of an hour, bringing up great quantities of ding force be A warned, a D. Williams V. P. N. Smith not before the sel be driven within the pe NEW-YORK, tar, which occasionally choaked the pumps to such a degree, May, 1804. as to oblige them to take out and clear the boxes. In addition to this, one pair of the main shrouds were carried away, and although the leak was in some degree stopped with swabs, still they were obliged to keep the pumps agoing. port. If a ves- Having, however, moderate and fair winds, they were enabled to procced, notwithstanding two men were, from sickinto a port of necessity, and ness, rendered unfit for duty. On the 3d of July the Prosa pestilential disorder break per was boarded off Cadiz, (according to the testimony of out, which ren- the mate,) by a British 74; but according to that of two ders it impossible for her to others, by a frigate who endorsed her papers, and forbade pursue her voy- her entering Cadiz, as it was blockaded. This notice was age, it is a loss in the cross examination of one M'Cann, a witness in rils of a policy. Spain, said to have been mentioned to him by Captain Williams as a warning from the English fleet. On the fifth, the wind coming a-head, and the Captain then discovcring a pair of the larboard main shrouds carried away, determined, after consultation with the mate, to bear away for Cadiz, for the preservation of vessel and crew, being unable to beat against contrary winds. In consequence of this resolution, they put about, and arrived the same day at Cadiz, though the same wind was fair for St. Lucar's and St. Mary's, which are both sea-ports,at which repairs may be made, and only a few miles distant from Cadiz, but bar-harbours requiring a pilot, though less difficult of entrance than Cadiz. At the time of passing these ports, no pilot came off, the vessel not laying too for the purpose of taking one on board: nor was it clear that the blockading fleet, which during the years '97, '98, and '99, had remained at anchor off Cadiz, was at this period actually before that place, having sailed in pursuit of a French fleet, leaving, however, three or four frigates to continue the blockade; a force sufficient to render the entrance dangerous to merchant vessels, though the Spanish armament, then in Cadiz, consisted of 20 or 30 sail of the line. Notwithstanding this, from the evidence of a Mr. Mumford, who had, about the middle of July, been warned by one of those frigates, not to enter Cadiz, there was a presumption, that even then the British squadron was at Gibraltar, about 14 leagues distant: and, on an appearance of an attack from the British ships, the Prosper was herself, while at Cadiz, or May, 1804. ¡D. Willams V. P. N. Smith. dered further up the harbour. Her leaks continuing, NEW-YORK, the Captain, on the 16th of July, applied to the Consul of the United States, to direct a survey on his vessel and cargo. This accordingly took place, under the inspection of three American Captains, who certified that the ship, from her leaky state, wanted repairs, for which purpose it would be necessary that she should be sent to a proper place to unload her cargo, much of that part consisting of tar being pumped up. In consequence of this, more than half of her lading was taken out, and the vessel herself moved up to Puntall, the usual place for repairing, as the bay of Cadiz was too rough for such as she required. Whilst there, a species of epidemic fever broke out, which prevented all business, and caused even the custom-house to be shut up, so that it was impossible to obtain permits for ta king the cargo from where it had been landed and entered for exportation. Hoping for a speedy removal of these impediments to her departure, the Captain of the Prosper, after compleating his repairs, and paying for them by a sale of part of his cargo, dropped down to Cadiz, but was, on the 14th of October, in a tremendous levanter, obliged to cut his cables and drive to sea. The second day of the tempest, which continued for three, in the utmost violence, they discovered three feet water in the hold; and though the storm then abated, they could not return to Cadiz until the 24th. The injury they sustained was encreased, by hav ing knocked a hole in the side of the vessel on some rocks; and, from the part of the pitch, which they had on board, having been floated by the water in the vessel, so as, according to the mate, to dash to pieces many of the barrels, the contents of which were necessarily lost. On regaining Cadiz, another survey was held, by the return of which, it ap peared, that the cargo both on shore and on board, from the heat of the climate and violence of the gale, was deteriorated more than one half of its original value. It also was, in evidence, that the whole would not have produced enough to outfit and repair the ship for the completion of her voyage, her provisions and stores having been expended in maintenance of the crew, who had been retained to take care of her cargo. To obtain money on bottomry was impossible. V. P. N. Smith. NEW-YORK, On the 15th of November, Williams formally abandoned May, 180+. the vessel, and cargo to the underwriters, and made a reD. Williams gular entry of it in the office of the Consul for the United States. On the 29th, the Prosper was attached by an order from the Royal Consulado of the city of Cadiz, for money due on a bottomry bond given to a Mr. Masack, of Amsterdam, by one Lewis Gurnier, on the procuration of Cassimir Delavigne and Co. of New-York, from whom the ship was fairly bought by the plaintiff. Under this attachment, the vessel was sold for $ 8400-her price, by the bill of sale, was $3500; for what amount she was bottomed, did not appear. The crew consisted of the master, mate, 4 hands, a cook, and a boy, which appeared was such a crew as Americans, who generally sail with fewer hands than other nations might go to sea with; though, for a vessel of the same tonnage as the Prosper, the witness who testified on this point, said, he would not choose to do it, notwithstanding one had, with a similar number,come from Europe to the United States. Upon these facts, the learned judge before whom the cause was tried, charged, with respect to the blockade, that if the jury were of opinion Cadiz was blockaded by a competent force, and the ship in question, not forced by necessity to enter that port, and nevertheless did enter it after notice, their verdict must be for the defendant. 2. That if they were of opinion the crew was not competent for the voyage, they would find in the same manner. 3. That if the seizure under the bottomry bond was made before the abandonment at Cadiz, the defendant would also be entitled to a verdict; but if the abandonment was previous to the seizure, the plaintiff would have a right to recover for a total loss. 4. That if the cargo was injured exceeding a moiety of its value at the time of abandonment, the right of the plaintiff would be the same. 5. That any damages which arose in consequence of the fever at Cadiz, were within the perils of the policy. 6. That if the jury should find in favour of the defendant, on either of the two first points, it would be sufficient, and in that case it would be unnecessary to examine the other points submitted to them. |