delivered the opinion of the court. The first question presented in this cause is, whether the plaintiff; at the time of the loss, had an insurable interest in her.
By the 4th section of the act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependenoiés, and for other purposes, passed the 1st of March, 1809, the importation of any goods, wares, and merchandises whatever, from Great Britain or Ireland, or any of the colonies or dependencies of Great Britain, is prohibited; and the 6th section of the same law declares, that if any article or articles, the importation of which is prohibited by that act, shall, after the 20th of May, be put on board of any ship or vessel, boat, raft, or carriage, with intention to import the same into the United States, or the territories thereof, contrary to the true intent and meaning of the act, and with the knowledge of the owner or master of such ship or vessel, boat, raft, *300or carriage, such ship or vessel, boat, raft, or carriage, shall be forfeited, Sec.
If the master of this vessel intended the lading she had taken in at St. Pierre, on the 7th of July, 1811, for the port of NewYork, it would, unquestionably, be a direct violation of the statute, and a forfeiture must ensue, by which the property of the vessel would immediately vest in the United States.
In the- case of Wilkins and others v. Despard, (5 Term Rep. 112.) it is decided that if a ship be seized as forfeited under the navigation act, the owner cannot maintain trespass against the party seizing, although the latter does not proceed to condemnation, for by the forfeiture the property is devested out of the owner.
The case of the United States v. Grundy and another, (3 Cranch’s Rep. 337.) cited by the plaintiff’s counsel, rather supports this doctrine. At all events, I cannot find in the report of the case any thing opposed to it. It is there decided, that under the act of congress, of December, 1792, which declares that if a false oath be taken, in order to procure a register for a vessel, the vessel or its value shall be forfeited ; that the United States had an election to proceed against the vessel as forfeited, or against the person who took the false oath, for its value; and that until the election was made, the property of the vessel did not vest in the United States; that an action could not be maintained for money had and received against the assignees of the person who took the oath, and who had become a bankrupt, the assignees having sold the vessel, and received the purchase money before seizure.
The act of 1792 gives two remedies, the forfeiture of the-vessel, or the value, to be recovered from the person who took the false oath; consequently, the remedy is at the election of thd United States. The property, therefore, could hot vest until the seizure. The act, in relation to the case before us, affords but one remedy, and that is, the forfeiture of the vessel, so that the seizure is not necessary to change the property; the owner loses his right to it immediately after the commission of the act producing the forfeiture. It must be granted, that the evidence in support of such an allegation ought to be conclusive, as the effect of it goes to destroy the right of action altogether, for by the forfeiture of the vessel to the United States, the insurable interest of the plaintiff was at an end.
*301The testimony of the supercargo in the case before us is, that the vessel had proceeded to take on board a return cargo, and continued so to do until the 7th of July, when the gale commenced. In this the captain and the mate concur; and they also state that she actually had thirty-five casks of molasses on board at the time of the disaster; no further explanation of their intentions, as to the disposition of the return cargo, is. given.
It will not admit of a moment’s doubt, that by return cargo, the goods for the home port were intended; and if the policy had been confined to one foreign port, no room would be left for any other explanation on the subject; but the vessel was destined for St. Bartholomew, with liberty to touch and trade at Martinique, the place where those articles were taken on board; it is, therefore, possible that an explanation might be given that the return cargo was intended for St. Bartholomew. No such explanation, however, appears in the ease before us. It ;was left to the jury by the judge, without any further evidence, accompanied with an observation, that the plaintiff’s counsel stated that he was surprised by the objection taken on the
part of the defendants, and that, possibly, if he had not been, he might have shown that the cargo was intended for St. Bartholomew. This was not shown, and without it the jury had ho ground to infer that it could be so intended, for until explained, the evidence will admit of no interpretation other than that the goods so laden were intended for the port of New-York. Although, on the other points, I am inclined to think the cause is with the plaintiffs, yet the objection made by the defendants’ counsel, on the ground of forfeiture, being insurmountable, it cannot change the result; a new trial must, therefore, he granted, with costs to abide the event.
New trial granted.