Murgatroyd v. Crawford

Shippen, J'.,

in the absence of M’Kean, C. J., who was indisposed, gave the following charge in effect to the jury, after stating the evidence fully:

Though none of the five grounds of condemnation inserted in the admiralty decree are legitimate, and though the Mount Vernon was not condemned as British property, yet it is incumbent on the plaintiff to prove his warranty literally, to the entire satisfaction of the jury, before he is entitled to recover.

Of the intentions of Murgatroyd, Duncanson and Willings and Francis, on the 2d May, 1796, when the ship was registered, there can be no doubt: For though a variety of circumstances have been relied on, to show that an immediate vesting of the ship in Duncanson was contemplated, and that seeming acts of ownership have been done by him and his agents, previous to her sailing, yet reliance cannot be placed on inferences or deductions, where the contract in all its parts is fully-shown,, and there is express proof of the settled design of the parties, that the property should not be changed until a future day. Whether their intention, under the circumstances of this case, could legally be executed, is the great question ?

It was of- considerable moment to Duncanson that the vessel should appear to be an American bottom, in order to trade to the East Indies, which in Great Britain is a monopoly in the East India company. Either a-delivery of the chattel contracted for, or payment of the consideration money, will effect a change of property, where such are the parties’ intentions ; but where the parties not only contemplate no such change, but expressly guard against it by contract, it would seem strange that the property should pass from the one to the other, contrary to the declared wills of both, though the payments have been by mutual consent anticipated.

Under the act of congress of 81st Dec.,'1792, American bottoms -must be wholly owned and commanded by American citizens. The reg- - .ister is prima facie evidence of property, but not conclusive. On a cursory reading of the 4th section of this act, we apprehended that a positive law of the union invalidated the agreement in the present instance ; but on more full examination and reflection, we now think, that the clause on which dependence is placed, must be restricted to the cases of an owner in the capacity of a consul of the United States, residing in a foreign country, or as an agent and partner in a house composed of citizens of the United States, and actually carrying on trade within the United States. The provisions in this sense seem founded on sound policy, and the necessity of a more minute scrutiny in the enumerated cases, to prevent foreigners from sharing in our ports the same immunities and benefits as our own citizen merchants. We are therefore of opinion, that the contract is not incompatible with that law, and are glad to find that such has been the received construction of the clause.

As a neutral nation, we should undoubtedly discharge, with the utmost good faith all the «obligations attendant on our neutral state. And if the jury shall be of opinion, that the present agreement was entered into to lend undue aid to the subject of a belligerent power by masquing his property, it should operate against the plaintiff. But this does not appear to us to be the case.

If any thing material within the insured’s knowledge was withheld from the insurer which would have altered the risk and induced the latter to have demanded a higher premium, or prevented him from underwriting, it is also a good objection against the plaintiff’s right of action, Of this the jury will judge as a fact necessary for their decision. It has been remarked with some force, that the silence complained of loses its great effect, when it is considered, that the plaintiff has warranted the ship to be an American bottom, and that he cannot have a verdict, unless he satisfactorily prove her to be such.

Verdict pro quer. for 1706 dollars and 67 cents damages.