Church v. Hubbart

Citation2 Cranch 187,6 U.S. 187,2 L.Ed. 249
PartiesCHURCH v. HUBBART
Decision Date01 February 1804
CourtUnited States Supreme Court

ERROR to the circuit court of the district of Massachusetts.

In the circuit court of Massachusetts, John Barker Church, Jun. instituted an action against the defendant on two policies of insurance, whereby he had caused to be insured twenty thousand dollars upon the cargo of the brigantine Aurora, Shaler, master, at and from New York, to one or two Portuguese ports on the coast of Brazil, and at and from thence back to New York. At the foot of one of the policies was the following memorandum: 'the insurers are not to be liable for seizure by the Portuguese for illicit trade.' In the body of the other policy was inserted the following: 'N. B. The insurers do not take the risk of illicit trade with the Portuguese.'

The Aurora cleared out for the cape of Good Hope, the plaintiff being on board as supercargo. She proceeded to Rio Janeiro, where she remained some days; and under a permit some of the cargo was sold; and afterwards sailed for Para on the coast of Brazil, and in company with another vessel came to anchor about four or five leagues from the land. The destination of the vessel after she left Rio Janeiro was by order of the plaintiff kept secret; and it was said by the master at the time, that the anchoring off the river Para was for wood and water, which were actually wanted.

The plaintiff went on shore in a boat, asserting that he left the Aurora for the purpose of procuring a pilot, to take the vessel up for wood and water and to sell the cargo if permitted. Mr. Church was arrested when on shore, and imprisoned; and the Aurora and the vessel in her company were taken possession of by a body of armed men, and carried into Para.

It was in evidence, that the trade to Para was prohibited, although by bribery of the Portuguese officers, cargoes were frequently sold there, the vessels which brought them alleging on arricval a pretence of want of repairs, want of water, or something of that kind.

The vessel and cargo were condemned by the governor of the capital of Para, as having been seized for illicit trade. The defense against the claims of the plaintiff on both policies was, that the loss occurred from a prohibited or illicit trade; for which the defendant, as an insurer, was not liable, according to the exception in both policies.

To prove that the trade to Para was illicit, the defendant offered a copy of a law of Portugal, passed the 18th of March 1605, entitled 'a law by which foreign vessels are prohibited from entering the ports of India, Brazil, Guiana, and Islands, and other provinces of Portugal.' The terms of this law expressly prohibit the trade, and subject the vessel and cargo, violating its provisions, to seizure and forfeiture, and the persons engaged in the same to the punishment of death.

[Page 190 intentionally omitted] The law was certified in the following term: 'I, William Jarvis, consul of the United States of America in this city of Lisbon, &c. do hereby certify to all whom it may or doth concern, that the law in the Portuguese language, hereunto annexed, dated the 18th of March 1605, is a true and literal copy from the original law of this realm of that date, prohibiting the entry of foreign vessels into the colonies of this kingdom, and as such, full faith and credit ought to be given it in courts of judicature or elsewhere. I further certify, that the foregoing is a just and true translation of the aforesaid law.

'In testimony whereof, I have hereunto set my hand and affixed my seal of office, at Lisbon, this 12th day of April 1803.

'WILLIAM JARVIS.'

Another law was produced, made on the 8th of February 1711, which provides for the punishment of the officers of the government who shall suffer the law of 1605 to be violated, and for the detection and punishment of offenders. This law was certified in the same manner.

To establish the defense that the Aurora and cargo were seized and condemned for illicit and prohibited trade, the defendant offered in evidence 'the sentence of the governor of the capital of Para, on the brig Aurora.'

'In consequence of the acts of examination made on board the brig Aurora, questions put to Nathaniel Shaler, who it is said is the captain of her, and to those said to be the officers and crew, and according to the act of examination made in the journal annexed, which they present as such passport and dispatches, together with other papers; I think the motives hereby alleged for having put into a port of this establishment, are unprecedented and inadmissible, and the causes assigned cannot be proved. I therefore believe it to be all affected for the purpose of introducing here commercial and contraband articles of which the cargo is composed; (if there are not other motives besides these, of which there is the greatest presumption,) 1. Because it cannot be supposed than an involuntary want to water and wood would take place in thirty-four days voyage from Rio Janeiro where the said vessel was provided with every necessary, until she passed the Salinas, without alleging and proving an unforeseen accident, when there was none in sixty-four days passage from New York to said port of Rio Janeiro, and it appears by these papers and by the information from the commanders of registry or guard at the Salinas, and it is not to be believed that they did not see that land at the hour of the morning which they passed it on the 9th day of the present month, as well as they were seen; and when it ought to be supposed that they should have solicited immediately the remedy for such urgent necessity as they wish to make it. 2. Because, after they were in sight and opposite to the village of Vigia on the 12th of the said month, having also got clear and passed safely by the shoals, and after by violent means having boarded and obliged different vessels to board him, it does not appear that any of those that were brought to the village as prisoners, alleged the want of water as a motive for coming in; nor that they had made the least endeavours, or demanded to be supplied with such want; it being very well known on the contrary, that all their endeavours were to obtain Pratic, and to proceed to this capital, alleging the pretext of being leaky, but which, from the examination made on board by the masters of the arsenal, did not appear to be true. 3. And finally because in the space of eight or ten days from the time they passed the cape of St. Agostinho till they passed by the Salinas, should their want of water be true, they might have supplied themselves with it, in any of the numerous ports on the northern coast of the Brazils till that of Pernambuco, or they would have directed their course directly for the destined port of Martinico and Antilles as they say; it appearing very strange they should come to sound all the coast, the excuse of the winds not being admissible. But by the same informer's journal it appears that from the 28th of May, when by observation they were northward of St. Agostinho, they had constantly the trade winds upon the quarter until the 3d instant, with which they steered always along the coast, when they ought only to have gone to this latitude to have continued the same winds to the said islands, and to have got clear of the calms and currents of the coast; if it had not been their only intention to look for the same coast and to this port for business and sumggling, which he could not perform at the Rio Janeiro for the reason which is specified in the letters annexed to folio _____; it being presumed that the master of this brigantine ought to be understood as having the same disposition as that of the schooner Four Brothers, with which he sailed and fell into conversation.

'Therefore I command that in conformity to the law made on the 5th October 1715, the observance of which has been so repeatedly recommended and revived to me by government, let their papers be brought to the house of justice to be continued as prescribed in the same law and laws of the kingdom, (they remaining in prison until the final decision) for which they gave cause by the hostile means which they practised. Palace of Para, the 27th of June 1801.

'D. FRANCISCO DE SOUZA COUTINHO.'

'On the 27th of June 1801, the deeds were given to me by his excellency the governor and captain general of state, D. Francisco de Souza

Coutinho, with his sentence ut supra, of which I made this term; and I, Joseph Damazo Alvares Bandiera, wrote and finished the same.

'It is hereby determined by the court, &c. that in the certainty of it being affected and unprecedented that the brig Aurora captain Nathaniel Shaler putting into this port as in the decision folio 43; as it is justly declared and adopted for the same incontestable causes there specified, that in consequence thereof, and of the respective laws thereto applying, she ought to be condemned, they concurring to convince that it was the project of the said captain (if he had no other reason beside these, of which there is suspicion) to look for a market for the merchandise which were found, not only as it appears by the letters hereunto annexed, but in the society and conversation in which he sailed with the schooner Four Brothers, which captain is convicted, by very clear proofs, of such an intention, and the same specious pretext with which he pretends to colour the cause for putting into this port, manifesting in this manner that he was not ignorant of the laws of the state concerning coming in and doing business therein.

'Therefore they declare him to have incurred the transgression of the order folio 1 to 107, and decree of the 28th of March 1605, and they order that after proceeding in the sequester on the vessel and cargo, to send the captain as prisoner, with the necessary information by the competent secretary, that his royal highness may be pleased to determine about him, as may be his royal pleasure.

'Para, 27th of ...

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