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February 8, 1812


The opinion of the court was delivered by: Washington, J. There is no doubt as to the law–the only question is whether this case be within the exception.

Absent. Marshall, chief justice.

THIS was an appeal from a sentence of the Circuit court which affirmed that of the District Court of Connecticut, restoring the Cargo but condemning the brig James Wells, an American registered vessel, for a violation of the 3d section of the embargo act of January 9th, 1808, in making a voyage to St. Bartholomews, under a clearance for the port of St. Mary's, in the state of Georgia. The excuse suggested by the claimant of the vessel was stress of weather. He stated in his claim and answer, that the vessel laden with 1272 barrels of flour, sailed from New York on the 26th of February, 1808, cleared and bound for St. Mary's, with a bona fide intention of going there, and without any intent of going to any foreign place. But that by contrary winds and stress of weather and the leaky condition of the vessel, he was compelled against his will (he being owner and supercargo) and against the will of the captain and crew, to go to, and enter the port of Gustavia, in the island of St. Bartholomews, in the West Indies, where he was obliged by the leaky and shattered condition of the vessel, to unlade the cargo, which was greatly damaged, and he could not afterwards obtain permission to carry it away again, but was compelled to sell it there.

The evidence on the part of the Claimant tended to prove that after the vessel got to sea, and the weather was rough she leaked considerably in her upper works, so that in bad weather they had to keep two pumps going at the rate of three or four hundred strokes every half hour, that after being six days at sea, it was judged 'best for the preservation of their lives as well as 'for the safety of vessel and cargo, to bear away for 'any of the West India Islands' . . . that when they arrived at St. Bartholomews, part of the flour was damaged, and they were obliged to unlade the vessel to have her surveyed and repaired. That the governor of the island had prohibited the exportation of provisions and would not permit them to take away their cargo.

New evidence which had been taken under a commission issued from this Court, was offered.

Pinkney, Attorney General, stated that he could not consent to admit it, but wished the objection might be saved.

He supposed that a distinction ought to be taken between cases of admiralty, and cases of maritime jurisdiction, and by the act of congress, new evidence is admissible in this Court in cases of admiralty only.

On the next day, however, he said that he was induced by the particular circumstances of this case to wave his objection; especially as the question would be made in another case at this term.

HARPER AND PITKIN, for the appellant, cited the cases of the Betsy and Charlotte v. U. S. Ante Vol. 4, p. 443, and Yeaton v. Y. S. Ante Vol. 5, p. 281.

THE COURT said that the admission of the evidence in this case, being by consent, would not prejudice the question if it should afterwards arise in another case.

PITKIN AND HARPER for the appellant.

The plea of necessity by stress of weather has been heretofore admitted as an excuse for violating the positive law of the embargo; and the only question in this case is whether the necessity was so urgent as to justify the bearing away for a port of safety. We contend that reasonable apprehensions of loss by persisting in the voyage to St. Mary's was a sufficient justification.

Fraud is not to be presumed. The fact is incontestable that the vessel leaked very much, and the weather was very bad. Such an apprehension of loss as would have justified a deviation under a policy of insurance is a sufficient justification in the present case. And in such case it is sufficient to justify a deviation that the captain has acted fairly and bona fide, and according to the best of his judgment for the benefit of all parties concerned, and has no other view but to conduct the ship and cargo by the safest and shortest course to her port of destination. Marshall on insurance, 408, 409, 410, 411

By the original embargo act of December 22d, 1807, the master is to give bond in double the value of the vessel and cargo, to reland the goods in the United States, 'danger of the seas excepted.' That act being in pari materia, the exception of the dangers of the seas ought to be considered as extending to the present case.

Pitkin. It is strong evidence that the master thought he was doing right, that he returned directly to the United States and subjected himself at once to the penalty of his bond–and that in fact he obtained only ...

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