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1818. The Dam.

Feb. 10th.

(ra actice.)
The DIAN A.

Decree in an instance cause affirmed with damages, at the rate of six per centum per annum. on the amount of the appraised value of the cargo, (the same having been delivered to the claimant on bail) including interest from the date of the decree of condemnation in the district court.

APPEAL from the circuit court of South Carolina.

This was an information under the non-importation haws, against the ship Diana and cargo. Condemnation was pronounced in the district and circuit courts, and the cause was brought by appeal to this court. At the last term, on the hearing, it was ordered to faither proof; and the farther proof not being satisfactory, the decree of the court below was affirmed at the present term.

Mr. Berrian, for the United States, inquired whether the damages should be computed from the date of the bond given for the appraised value of the cargo, or from the decree of the district court,

The court was of opinion, that the damages should be computed at the rate of six per centum on the amount of the appraised value of the cargo, including interest from the date of the decree of condemnation in the district court.

Decree affirmed.

(Instance Court.)

The NEw-York—Troup, Claimant.

Libel under the non-importation acts. Alleged excuse of distress repelled. Condemnation pronounced.

This cause was argued by Mr. D. B. Ogden, for the Feb. 5th.

appellant and claimant, and by Mr. Hopkinson and Mr. Baldwin, for the United States,a

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a The latter counsel cited the Eleanor, Edwards, 159, 160. In this case. Sir William Scott observes, that “ real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws But if a party is a false mendicant, if he brings into a port a ship or cargo,under a pretence which does not exist, the holding out of such a false cause fixes him with a fraudulent purpose. If he did not come in for the only purpose which the law tolerates, he has really come in for one which it prohibits, that of carrying on an interdicted commerce in whole or in part. It is, I presume, an universal rule,that the mere coming into port, though without breaking bulk, is prima

facie evidence of an importa

tion. At the same time, this
presumption may be rebutted;
but it lies on the party to assign

the other cause, and if the

cause assigned turns out to be
false, the first presumption ne-
cessarily takes place, and the
fraudulent importation is fas-
tened down upon him. The
court put the question to the
counsel, whether it was meant
to be argued, that the bringing
a cargo into an interdicted port
under a false prètence, was
not a fraudulent importation,
and it has not been denied that
it is to be so considered.”
“Upon the fact of importa-
tion, therefore, there can be
no doubt; and, consequently,
the great point by which the
case is reduced, is the distress
which is alleged to have occa-
sioned it. Now, it must be an
urgeht distress; it must be

New-York.

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Mr. Justice Livingston delivered the opinion of the

Court.

This is an appeal from the circuit court for the South

ern District of New-York.

This ship was libelled for taking on board, at the Island of Jamaica, with the knowledge of the master, 51 puncheons of rum, 23 barrels of limes, and 20 barrels of pimento, with intention to import the same into the United States, contrary to the provisions of an act of Congress interdicting commercial intercourse between Great Britain and the United States, passed the 1st of March, 1809, and the cargo was libel- 1818. led for an importation into the United States, in viola. The tion of the provisions of the same law. New-York. A claim was interposed by John Troup, of the city of New-York, merchant, which denies the allegation of the libel, as to the intention with which the articles mentioned in the libel were put on board at Jamaica; and as to the importation, he states, that on or about the 6th of October, 1811, the said ship, with the said cargo on board, being on the high seas on the American coast about five leagues distant from land, and haying lost her rudder, and being otherwise disabled, was, by stress of weather, compelled to put into the port of New York, contrary to the will and design of the master, and against the express orders of the claimant, as owner thereof, communicated to the said master before

something of grave necessity; such as is spoken of in our books, where a ship is said to be driven in by stress of weather. It is not sufficient to say it was done to avoid a little bad weather, or in consequence of soul winds; the danger must be such as to cause apprehension in the mind of art honest and firm man. I do not mean to say that there must be an actual physical necessity exisling at the moment; a moral necessity would justify the act; where, for instance, the ship had sustained previous damage

so as to render it dangerous to

the lives of the persons on board to prosecute the voyage: Such a case, though there might be no existing storm, would be viewed with tenderness; but

there must be at least a moral

necessity. Then,again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage ; sor there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place, the distress must be proved by the claivantina clear and satisfactory manner. It is evidence which comps from himself,and from persons subject to his power, and probably involved

in the fraud, if any fraud there

be, and is, therefore, liable to

be rigidly examined.”

his arrival.

On board the vessel were two manifests of the cargo, both of which stated the cargo to have been laden on board at Montego bay, in Jamaica; but one of them declared her destination to be Amelia Island, and the other New-York. The latter was delivered to an officer of the customs, and a certificate by him endorsed thereon, stating that fact, dated the 14th October, 1811. The other manifest was exhibited at the custom-house in New-York, on the 25th October, 1811, at which time the master took the oath usual on such occasions, stating that the said manifest contained a true account of all the goods on board, and that there were not any goods on board, the importation of which into the United States, was prohi.

bited by law.

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John Davison, the master, deposed, that ne was with the said ship at Jamaica, in August, 1811. That his

orders from the claimant were not to take on board

at Jamaica any West India produce for the United States. That the consignee of the said ship, the JNorthern Liberties, (evidently a mistake for the MewYork,) insisted upon it that he should take a cargo of West-India produce on board, stating it, as his opinion, that the non-intercourse law would probably be repealed before he could arrive at New-York, and

that, at any rate, he could stand off and on Sandy

Hook until he should receive the orders of his owner how to proceed. That he was thus induced to take the said cargo on board, with which he sailed with orders from the consignee, and with intention to obey them, not to attempt to come into the port of NewYork unless he received from the owner directions off Sandy Hook so to do; that on the 6th of October, in the same year, while on the voyage from Jamaica, they had a severe gale of wind from the south-west, varying to the southward and eastward, accompanied with a very heavy sea, which continued nearly twen

ty hours, in the course of which they split the fore

sail and carried away the rudder. That on the 11th day of October, they made soundings about 40 miles to the southward of Sandy Hook, where he received

a letter from the owner by a pilot-boat, the contents

of which he communicated to the crew, and told them he should wait off the Hook until he received farther orders from the owner ; but they declared that the rudder was in such a state that it was unsafe to remain in her at sea, and that they would leave the

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