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Fitzsimmons v. Newport Insurance Company, 8 U.S. 4 Cranch 185 185 (1808)

Fitzsimmons v. Newport Insurance Company

8 U.S. (4 Cranch) 185


An American ship, warranted to be American property, is impliedly warranted to conduct herself during the voyage as an American, and an attempt to enter a blockaded port knowing it to be blockaded forfeits that character.

The fact of clearing out for a blockaded port is itself innocent unless it is accompanied with a knowledge of the blockade.

By the treaty with Great Britain it is agreed that every vessel may be turned away from any blockaded or besieged port or place which shall have sailed for the same without knowing of the blockade or siege, but she shall not be detained, nor her cargo, if not contraband, be confiscated unless after notice she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper. The treaty is conceived to be a correct exposition of the law of nations.

Neither the law of nations nor the treaty admits of the condemnation of the neutral vessel for the intention to enter a blockaded port unconnected with any fact. Under the treaty, a second attempt to enter the invested place must be made after notification of the blockade, and inquiring about the place, as if watching for an opportunity to sail into it, or the single circumstance of not asking immediately for some other port, or possibly obstinate and determined declarations of a resolution to break the blockade might be evidence of an attempt, after warning, to enter the blockaded port. But whether these circumstances or others may or may not amount to evidence of the offense, the offense itself is attempting again to enter, and unless "after notice she shall again attempt to enter," the two nations expressly stipulate she shall not be detained, nor her cargo, if not contraband, confiscated.

However conclusive the sentence of a foreign court of admiralty may be of the facts which it alleges, those facts not amounting to a justifiable cause of condemnation, the Court will look into the facts of a case and draw from them such conclusions as they will authorize.

Error to the Circuit Court of the district of Rhode Island in an action upon a policy of insurance on the brig John, warranted American property, from Charleston, South Carolina, to Cadiz, captured by a British ship of war on 16 July, 1800, carried into Gibraltar, and there condemned on 26 August following. The cause of condemnation set forth in the sentence was that the brig was "cleared out for Cadiz, a port actually blockaded," and that the master "persisted in his intention of entering that port after warning from the blockading force not to do so, in direct breach and violation of the blockade thereby notified." On the trial in the court below, the jury found a special verdict stating, among other things, that the blockade of Cadiz was not known at Charleston when the John sailed from thence, and that the first notice the master had was from the blockading squadron, who brought to the brig, and warned the master not to proceed to, nor attempt to enter the port of Cadiz, and endorsed his register; but the master had no notice of such endorsement upon his register until after the condemnation. The mate and some of the seamen were taken out and a prize master and British seamen put on board. She was detained by the

Page 8 U. S. 186

blockading squadron from the 16th to the 27th of July, when the master was ordered on board the admiral's ship, and told,

"we have thoughts of setting you at liberty, and in case we do, and deliver you your vessel and papers, what course will you steer, or what port will you proceed for?"

To which the master answered that in case he got no new orders, he should continue to steer by his old ones. The admiral then said, "that will be, I suppose, for Cadiz." To which the master replied, "certainly, unless I have new orders." Upon which the admiral said, "that is sufficient; I shall send you to Gibraltar for adjudication." Whereupon the brig, without being liberated, was sent into Gibraltar and condemned on the grounds stated in the sentence. The libel and proceedings in the vice admiralty are found by the special verdict. An appeal was prayed and granted from the vice-admiralty court, but it does not appear to have been prosecuted. The judgment in the court below was for the original defendants.

This cause was several times argued, having been pending in this Court ever since the year 1803.

Page 8 U. S. 197

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