1818.

The

of the New-York by the board of wardens, which stated the rudder gone, the stern post and counter New-York. plank injured, the oakum worked out, the main cap split and settled, fore-topsailyards sprung, pallbits broken; fore-topsail sheet bill, started and broken This injury was stated by the master to the wardens to have happened in a gale, in lat. 27° 30" N. and long. 80 W. The wardens gave it as their opinion, that the said vessel ought to be unloaded, and hove out to repair her damages before she could proceed to sea in safety.

On the 7th of November, of the same year, after the New-York was unloaded, the wardens again surveyed her, and reported, the middle rudder brace broken, the crown of the lower brace gone. Some of the sheathing fore and aft gone, the rudder badly chafed, and so much injured, as not to be fit to be repaired.

On this evidence, the district court pronounced a decree of restitution. From this sentence the United States appealed to the circuit court, held for the southern district of New-York, in the second circuit, where that sentence was reversed. From this last decree, an appeal is made to this court, whose duty it now is to inquire which of these sentences is cor

rect.

If the articles in question were taken on board with the intention of importing the same into the United States, and with the owners or master's knowledge, a forfeiture of the vessel must be the consequence, whether she were forced in by stress of weather or not; and even if no such intention existed at the time of loading at Jamaica, the same consequence

will attach to the goods, if it shall appear that the coming in of the vessel was voluntary on the part of the master.

The claimant has first endeavoured to clear the transaction of all illegality in its inception, and thinks he has offered testimony sufficient to satisfy the court that there was no intention at the time of loading at Jamaica, to import the cargo into the United States.

When an act takes place, which in itself, and unexplained, is a violation of law, and the inducements to such infraction are great, it will not be thought unreasonable in a court, to expect from a party who seeks relief against its consequences, the most satisfactory proofs of innocence, especially, as such proof will generally be within his reach. If then, any papers, which in the course of such a transaction must have existed, are not produced, or if any others which come to light, do not correspond with the master's relation; and especially, if all the witnesses who are in the power, and many of them in the interest, and under the influence of the party, are omitted to be examined, when it is impossible that they should not be intimately acquainted with the most material circumstances; and instead of this, the chief, if not only reliance of the claimant, is placed on the evidence of a party, who, if the allegations of the libel be true, is himself liable to a very heavy penalty; when such a case occurs, a court must be expected to look at the proofs before it, with more than ordinary suspicion and distrust.

In this case, there was an importation which, prima facie, was against law, and was in the same degree

1818.

The

New-York.

. 1818.

The

evidence of an original intention to import; the burthen, then, of showing the absence of such an intenNew-York. tion, was thrown upon and assumed by the claimant. In doing this, he satisfies himself with the examination of the master; who states, that he had orders from his owner, not to take on board at Jamaica any WestIndia produce for the United States. What is become of these orders? Does a master sail on a foreign voyage with verbal instructions only? This is not the common course of business. Instructions to a master of a vessel are generally in writing; and for the owners greater security, there is always left with him, a copy certified or acknowledged by the former. If so, why are they not produced? They would speak for themselves, and be entitled to more credit than the declarations of a person so deeply interested to misrepresent the transaction, as this witness is. The court, therefore, might well throw out of the case the little that is said of these instructions, so long as they are not produced; and it is not pretended that they were not reduced to writing, or if they were, that they are lost; which, indeed, is not a very supposable event, if the ordinary precautions on this occasion have been observed. But notwithstanding these very positive orders, the master, in direct violation of them, and at the hazard of the most serious consequences to himself, takes on board a cargo expressly prohibited by his owner, in compliance with the directions and opinion of a consignee, whose name is also withheld, and who does not appear to have had any right to interfere in this way. So great a responsibility would have attached upon such

1818.

The

a palpable breach of orders, that it is a good reason for doubting whether they ever existed. Nor is this part of the master's testimony verified by the claim, which New-York. observes a profound silence in relation to these or any other orders, that may have been given. If no written instructions were delivered to the master, which we are at liberty to believe, as none are produced, better mode could hardly have been devised to avoid detection. It has been said in argument, that the intention of the master's coming to the United States was altogether contingent, and depended on a repeal of the non-intercourse act, and that he, accordingly, did not mean to come in if that act were still in force. But how does this appear? Nothing of the kind is stated in his deposition; on the contrary, his coming in, according to his own account, depended not on the repeal of this law, but on the orders of his owner; he came, he says, on this coast, with intention to obey the orders of the consignee, not to attempt to come into port unless he received orders from the owner, off Sandy Hook, so to do. If, therefore, he had found those laws yet in force, which he probably had heard was the case, soon after his coming on the American coast, and long before he fell in with the pilot boat which carried down the letter of his owner, he still intended to have come in, if his owner had ordered him so to do. His intention, therefore, as taken from his own relation, is not altogether of that innocent nature which it has been represented to be When the vessel sailed from Jamaica, does not exactly appear; all we know from the master's account is, that she was there in August, and met with a gale on the 6th

1818.

The

of October following. It is probable, however, from these dates, that she had been long enough at sea to New-York, meet with one or more vessels from the United States, from which information might have been received of the actual state of things in this country in relation to this law. Whether any such vessel were met with, we know not; but might have known if any of the crew or of the passengers had been examined, or the log-book produced. If such informa tion were received on the coast, and the master of the New-York had persisted afterwards in keeping the sea until he could hear from his owner, it would amount to strong proof of an original design to come here. The opinion which has already been intimated on this part of the case, which depends on the intention with which the cargo was loaded, will be much strengthened by proceeding to consider the plea of necessity on which the coming in is justified, and the facts relied on, in support of this plea. The neNecessity, cessity must be urgent, and proceed from such a cuse a violation state of things as may be supposed to produce on

which will ex

of the laws of

trade, must be the mind of a skilful mariner, a well grounded ap

urgent, and

such a state of

be

proceed from prehension of the loss of vessel and cargo, or of the things as may lives of the crew. It is not every injury that may be supposed received in a storm, as the splitting of a sail, the ner, a well springing of a yard, or a trifling leak, which will ex

to produce

on the mind of

a skilful mari

grounded fear

of the loss of cuse a violation of the laws of trade. Such acci

vessel and car

go, or of the dents happen in every voyage; and the commerce of

lives of the

crew.

no country could be subject to any regulations, if

they might be avoided by the setting up of such trivial accidents as these. It ought, also, to be very apparent, that the injury, whatever it may be, has not