LIVINGSTON & GILCHRIST

v.

THE MARYLAND INSURANCE COMPANY

28th. In the opinion, to which the 28th exception was taken, this Court concurs,with the Circuit Court. The direction, asked by the counsel for the Plaintiffs, ought not to have been given. It is expressed in terms which, if assented to, might misguide'the jury. Rightful capture according to the law of nations might be construed to rnean capture for a cause which would justify condemnation according to the law of nations as construed in the United States. But capture will always be made on suspicion .of what the belligerent construes to be cause of forfeiture, and capture authorizes abandonment. Such apts or omissions therefore, of the Plaintiffs, as would induce, a capture and detention according to the /common practice of the belligerents, are proper for t'hé consideration of the jury in estimating the risk.

This Court is of opinion, that there is error in the proceedings of the Circuit Court in this cause, in refusing to give-'the opinion on which that Court was divided ; am! also in the opinions to which the 5th, 6th, 7th, 8th, i)th, 11th, loth, 24t)i and 25th exceptions are taken. This Court .doth therefore reverse and annul the judgment, rendered, by the Circuit Court, and doth remand tho-pause to the. said Court that a venire facias de ncrvQ may be awarded, and other proceedings had therein according to law.

STORY, J.

I,Concur in the judgrnent of reversal,which has just been pronounced. But as in some instances f differ from the opinions expressed by the majority, and others 1 concur upon grounds somewhat variant, I have ventured, to express my own views at large upon the important points which have been so fully and ably argued.

. The first question which presents itself is on the certificate of .. division. • To constitute , a representation, there should be ah explicit, affirmation or denial of a fact, or such an allegation as Would irresistibly lead the mindvto the. same conclusion. If the expressions are ambiguous, or such as the parties might fairly use without intending to authorize a particular conclusion, the insumí ought not to be bound by the conjectures, or calculations of probability, of the underwriter. The lat-'". ter, if'in sucli,case he deems the facts material, ought to rnahe further inquiries. In the letter, of the 26th .of March, 18016, there áre no words negativing the existence of other interests than those of the Plaintiff’s and Messrs. Griswold and: Baxter. .

The negative, if any, is to be made out by mere inference or probable conjecture, ánd as there is no rea-, sOn to suppose that the statement was made with that intent, I am satisfied that it did not amount to a representation negativing the existence of such interests.-' The.Couj't below ought therefore tó have given the direction prayed for by the Plaintiffs’ counsel.

But, even admitting that the letter did contain the re-, presentation' contended for, I am well satisfied that it was ’ substantially true.. It is not pretended, that any pther person except Baruso had any interest in the cargo; and it is very clear that, whatever might be his contingent interest in' the possible profits of the voyage, he hatl no vested interest in the cargo itself. He was not $ partner, for he wanted one of the essential characteristics of partnership, a direct vestetl interest in the joint funds. He possessed a mere possibility which, in the successful termination of the voyage, might entitle him to a right of action for a proportion of the profits ; or, in a specified case of election, to take a proportion of the property itself. But it was not such an interest as was liable fo capture, or such as could be claimed or condemned in a prize Court. It was less certain than even a respondentia or bottomry interest, which have been allowed to be asserted before' the prize jurisdiction. Tlie commissions of a supercargo upon the sales might, w ith as much propriety, be deemed a vested interest in the cargo consigned to his care.

I pass over, for the present, the fifth exception.

The sixth exception points to the national character of Baruso. As Baruso emigrated from Spain to the United States during a time of peace, no question arises as to the ability of a belligerent subject to change his national character [flagrante bello.

It is clear by the law of nations that the national chare .'ter of a person, for commercial purposes, depends upon his domicil. But this must be carefidly distinguished from the national character of his trade.' For the party may be a belligerent subject and yet engaged in neutral trade; or he may be a neutral subject and yet' engaged in hostile trade. Some of the cases respecting the colonial and coasting trade df enemies have turned upon this distinction.

But whenever a person is bona fide domiciled in a particular country, the character of the country irresistibly attaches to him. The rule has been applied with equal impartiality in favor and against neutrals and belligerents. It is perfectly immaterial what is the trade in which the party is engaged, or whether he be engaged in any. If he be .settled bona fide in a country with the intention of indefinite residence, he is, as to all foreign countries, to be deemed a subject of that country. Without doubt, in order to ascertain this domicil, it is proper to take into consideration the situation, the employment, and the character of the individual. The trade in which he is engaged, the family that he possesses, and the transitory or fixed character of bis business, are ingredienls which may properly be weighed in deciding on the nature of an equivocal residency or domicil. But when once that domicil is. fixed" and ascertained, all other circumstances become immaterial,

The prayer of the Plaintiffs (which was refused by the Court) in effect asked that if Baruso was bona jide settled in .New York, and liad no domicil •elsewhere, he was not to be considered as a belligerent. The Court in effect declared that the character of his trade, arid not his mere domicil, fixed his national character. There was thp'rfore error both in the refusal and in the direction of the Court.

The seventh exception arose from a misconception of tire opinion of'the Supreme Court.. The Court did not mean to intimate that whether an interest increased the risk or not was a mere question of fact for the jury. On the contrary, the Court considered that it was a mixt question of law and fact on which the Court were hound to direct the jury as to the law. As the Court below were of opinion that Baruso was not a joint owner of the cargo, (in which opinion I concur) the question ought not to have been left to the jury in the broad and unqualified terms which are used. Strictly and legally speaking, Baruso had ho interest in the cargo ; and therefore « his interest could not be material to, the riskand if the point, meant to have been left to the jury, was, whether the concealment of the name or the possibility of interest of Baruso increased the risk it should have been left with proper directions as to the effect of the usage of trade and neutral character of Baruso in settling that question. If the usage of trade allowed or required such cover, or if Baruso were a neutral, l am not prepared to say that, in point of law, the risk could thereby have been increased. It would have been a mere inquiry into the possible hazards from the rapacity of belligerents, or the possible effects rtf one Spanish tame instead of another. Men reason differently upon such speculations.

Nor am I prepared to say that it is ever necessary for the assured to declare the national character of other distinct interests engaged iff the satpe adventure, unless called for by the underwriter. If such interests' are not warranted or represented to be. neutral, the underwriter must be considered as calculating upon the possible existence of belligerent interests, or as waving any inquiry.

The fifth and eiglith exceptions may fie considered together as they are founded upon, the legal effect of the taking on board and the concealment of tlic papers, by'Baxter, from the belligerent. cruiser. The prayer the Plaintiffs in the fifth exception was for a direction that under all the circumstances of the ease there was no such concealment as would avoid the Plaintiff^; right to recover. And if, in point of law, the Plaintiff's were entitled to such direction, the Court erred in their refusal, although the direction, afterwards given by thjs Court might, by inference land argument, in the opinion of. this Court, be pressed to the same extent. For the party has a right to a direct and positive instruction $ and the'jury are not to be left to believe in distinctions where none exist, or to reconcile propositions by mere argument and inference, it would be a dangerous practice, and tend to mislead instead of enlightening a jury.

The opinion of the Court in effect was, that the concealment-of any papers; which were necessary to be' on board by the usage ibid course of. the trade, did not affect the Plaintiff’s right to recover. But .(in-conformity with -the prayer of the Defendants in the eighth exception^ that if 'any of the papers increased the risk, and were hot necessary by the usage , and course of trade, and the fact, that such papers,would .accompany the'cargo, was. not disclosed to the underwriters, the Plaintiffs were not entitled to recover. It is undoubtedly true that the .warranty of neutrality extends, not barely to the fact of the property being neutral, but that the conduct of the'voyage shall be such as to protect and preserve its neutral character. It mast also be conceded that the acknowledged belligerent right of search draws after it a right to the production and examination of the ship’s papers. And if these be denied, and the property is thrown into jeopardy1 thereby, there can be no reasonable doubt that such conduct constitutes a breach of the warranty.

' Concealment and even spoliation of papers, do not ordinarily induce-a condemnation of the property; but they always afford cause of suspicion, and justify capture and detention; In many cases the penal effects extend in reality, though indirectly, to confiscations For if the cau,se labor under heavy doubts, if the conduct be not perfectly fair, or the character of the parties are not fully disclosed upon the papers before the Court* the concealment or spoliation of papers is made the ground of refusing further próof to relieve the ofascuri-, ty of the cause j and all the fatal consequences of a hostile taint follow on the denial;

But the question must always be whether there be it. concealment of papers material to the preservation of the neutral character. It would be too mm h to contend that every idle and accidental, or even meditated, concealment of papers* manifestly unimportant in every view before the prize tribunal, should dissolve the oblrgation of the policy. And if by the usage and course of trade it be necessary or allowable to have oh board spurious papers covered with a belligerent character, whatever effect it may have upon the rights of the searching cruizer, it would be difficult to sustain the position, that the concealment of such papers, which, if disclosed, would completely coinprumit or destroy the neutral character, would be a breach of the warranty. In such case the disclosure of the papers produces the same inflamed suspicions, the same legal right of capture and detention, the same claim for further proof* and the same right to deny it, as the. concealment would, if the concealment would induce the conclusion that the interest was enemy’s covered with a fictitious neutral garb, the disclosure wotdd not-in such a casé less authorize the same conclusion. In such case it Svould depend upon the sound discretion of the Court* tinder all the circumstanccs -of the case, to allow tbe veil to be. drawn aside, and admit or deny the Claimant to assume his real character. Whenever, therefore, the underwriter has knowlege and assents to the cover of neutral property under belligerent papers, (as he does in all cases where the usage of the..trade demands it) he necessarily waves his pights under the warranty, so far as the visiting cruizer may demand the disclosure of such papers. In other words, he authorizes the concealment in all cases where it is not necessary to assume the belligerent national character for the purpose of protection. If this view be correct it is clear that the Court ought to have given the direction prayed for by the Plaintiffs. Sitting here under, a clause in the policy which enables us to look behind the sentence of candemnation, we See that the property was really neutral 5 and if the jury believed the evidence, the concealment was of papers which were authorized by the course of trade for the voyage, and so far from giving a hostile character, was the only means of-preventing a strong presumption of that character. If we but consider the known course of decisions in the British. Courts on questions of this nature, we shall find that, independent of the question of the neutral or hostile character of the ostensible owner, the trade between the belligerent mother country and its colony affects with condemnation the property engaged in it, although such property be neutral, and there be an interposition of a neutral port in the course of the voyage. . On examining the papers in this case it will be found that they point, though obscurely, to such an ultimate destination. And at all events the existence of contradictory papers, one sett' American, the other Spanish, would, in a Spanish trade, afford an almost irresistible inference in a prize Court that the property was really Spanish — J\Toscitur ab origine. It would take its character from its origin.

But it is immaterial, in my view, whether a prize Court would under such circumstances acquit or condemn. When, the'cover of a Spanish character Was allowed, it was allowed for the purposes of protection! and the disclosure of it was not required elsewhere than in the Spanish dominions. One of the risks against •which the insured meant to guard himself was, in my judgment, a loss on account of the use of the Spanish character: a loss which might have been more plausibly resisted, if there had been a disclosure instead of a concealment of it.

The Court also erred in declaring (in the eighth exception) that the taking on board of any of the papers, which were not necessary by the usage of the trade, if the risk thereby were increased, avoided the Plaintiffs’ right to recover. Tiie effect of the whole papers should have been taken together. The evidence did not authorize the Court to consider and separate the, effect of each single paper. . If one unnecessary paper might have increased the risk, if singly considered, and yet, if accompanied by the others, it would not have had that effect, certainly the existencé of that paper with the others would hot have destroyed the right of the Plaintiffs. Yet the opinion of the Court would have authorized the jury to draw a different conclusion.

The Court should have directed the jury that if the papers w'ere authorized by the usage and course of the trade, the concealment of them, under the circumstances, did not vitiate the policy; and that if some wrere authorized and others not, yet the possession or concealment of the latter with the former did not vitiate the policy, •unless the unauthorized, so connected with the authorized, papers increased the risk.

The question, presented by the 9th exception, is whether the Defendants are to be considered as having notice that the voyage insured was to be pursued under a Spanish license. The letter of the 26th March, 1806, expressly refers to the letter of 17th of February, 1806, which had been laid before the underwriters; and they must therefore be deemed conversant' of all the facts therein stated. A party shall be taken ,to have notice of all facts of which he has the means of knowledge in his own possession; or is put directly upon inquiry by reference to documents submitted to his inspection. In the letter of the 17th February the ship is declared to have a permission for the voyage, which in this trade can be understood in no other sense than a license. The Court ought‘therefore to have given the direction prayed for by the Plaintiffs.

The Court erred in the opinion expressed in the 11th. exception. The course and usage of trade may in all cases bo proved by parol, whether such' course and usage of trade arise out of the edicts or out of the instructions of the government, and whether the trade be allowed or prohibited by sucli edicts or instructions.

The Court erred also in the latter part of their direction to the jury under the 13th exception. It was immaterial whether the trade was or was not prohibited by the laws of Spain. In either case the underwriter^ were bound to take notice of the usage and course of the trade. The public laws of a country, affecting the course of the trade with that country, are considered to be equally within the knowledge and notice of all the parties to a policy on a voyage to such country.

The'30th exception cannot be supported. The opi? of the Court was entirely correct.

The 24th and 25th exceptions ought to be considered. together in order t<> present the opinion of the Court below with its full fleet. It is clear that any acts done by the assured in tin' voyage according to the course and usage of the trade, although such.acts may increase the risk, do not vitiate the policy, This opinion was pronounced by this Court on the former argument of this case, in refer-nee to the Spanish papers to which, the present appli-atiou of the Defendants obviously pointed. The Court therefore err d in granting the prayer of the Defendants, and in refusing that of the Plaintiffs.

The last (the 28fch) exception cannot be sustained. The proposition is conceived in too general terms, and ¡might mislead the jury, Any acts or omissions of the insured or his agents which, according to the known edicts or decisions of the belligerents, though not; acr cording to the law of nations, would inhance the danger of capture or condemnation, might, if such acts or omissions were unreasonable, unnecessary or wanton, form a sound objection to the right of recovery. The insured can have no right to jeopardize the property by any conduct which the fair objects of the voyage,, or the usage of the trade do not justify.