1818.

of October following. It is probable, however, from these dates, that she had been long enough at sea to The 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 information 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, which will ex- cessity must be urger.t, and proceed from such a cusea violation state of things as may be supposed to produce on trade, must be the mind of a skilful mariner, a well grounded approceed from prehension of the loss of vessel and cargo, or of the lives of the crew. It is not every injury that may be things as may be supposed received in a storm, as the splitting of a sail, the to produce on the mind of springing of a yard, or a trifling leak, which will exwell cuse the violation of the laws of trade. Such acciner, a grounded fear of the loss of dents happen in every voyage; and the commere of

of the laws of'

urgent, and

such a state of

a skilful marri

vessel and car

crew.

Ko, or of the no country could be subject to any regulations, if lives of the they might be avodied by the setting up of such trivial accidents as these. It ought also to be very ap parent, that the injury, whatever it may be, has not

The

been in any degree produced, as was too often the 1818. case, during the restrictive system, by the agency of the master, and some of the crew. Does then the New-York. testimony in this case, carry with it that full conviction of the vis major which ought to be made out to avoid the effects of an illicit importation? It will not be right or proper for the court, in considering this part of the case, to devest itself of those suspicions which were so strongly excited in the first stage of this transaction; for if it were not very clearly made out that the lading of these goods on board was innocent, it will be some excuse for the incredulity which the court may discover respecting the tale of subsequent distress. On this point, also, the claimant is satisfied with the testimony of the master. Not a single mariner, not one of the passengers, although several were on board, is brought forward in support of his relation. Of the wardens' survey, notice will presently be taken. Now, admitting the master's story to be true, with those qualifications, however, which are inevitable, he has made out as weak a case of necessity as was ever offered to a curot, in the many instances of this kind which occurred during the existence of the restrictive system. A gale of less than twenty hours continuance was all the bad weather that was encountered, in which it is said the rudder was carried away and the foresail split; the rudder may have been injured, but it could not have been carried away, if it be true, as from the master's own account must have been the case, that the vessel after this accident made at least one thousand miles in the course of the first five days, immediately after. But

1818. it is said that is no evidence as to the place where the accident happened. Of this fact the survey producThe New-York. ced by the claimant himself is conclusive. It was taken from the mouth of the captain himself, and if he or the wardens committed a mistake in this important particular, why was it not corrected by an examination of the master, or a production of the log-book? Nor has it escaped the attention of the court, that if the New-York were disabled 'in lat. 27, 30 north, long. 80 west, she might have reached Amelia Island, her pretended port of destination, with much more ease, and in much less time than she employed in sailing more than ten degrees to the north, and taking her station off Sandy Hook; for she was, on the 6th of October, much nearer to that island, and the wind was as fair as could be desired to carry her there.

The plea of distress, therefore, is contradicted by a fact which could not have existed, if it had been as great as is now pretended; nor can it be believed, if any great danger had been produced by the gale of the 6th of October, that either the crew or the passengers would have submitted, not only to come so many degrees to the north, but continue hovering on the coast until the owner could be heard from. No leak appears to have been the consequence of the storm, no mast was lost, nor any part of the cargo thrown overboard; and if she steered and sailed as well as it seems she did, without a rudder, even a loss so very essential and serious to other vessels, must be allowed to have worked little or no injury whatever in this case. To the subsequent surveys by the

1818.

The

wardens of the port, as far as they exhibit the condition of the New York, but little importance is to be attached. It appears to have been an ex parte pro-New-York. ceeding, and if all the injuries which they describe existed, as they no doubt did, it is not certain whether they were produced by the gale spoken of, or by any other accident at sea, or by the act of the master himself; and, at any rate, their recommending repairs before she went to sea again was very natural, the vessel being then in port; but is no proof at all that she might not as well, and better, have gone to Amelia Island as to have come to that port. The letter to the master, which has been produced, does not place in a very fair light the pretensions of the claimant. However unpleasant the task, the court is constrained to make some remarks on it. It seems agreed that it is but little calculated to lull the suspicions which other parts of this case have excited. The interpretation resorted to by the claimant is at variance with the only appropriate sense of the terms which are used, and with the most manifest intentions of the writer. By changing the port of departure, nothing else could have been intended than to legalize the voyage by the crew swearing that the New-York had sailed from some West-India possession, not under the dominion of Great Britain. This sense of the letter, which seems inevitable, is but little favourable to the character of the claimant, or to the integrity of the transaction. Nor should it be forgotten, that the master does not decide upon coming in until this letter is received; whereas, if his situation were as perilous as he now represents it, he could not, and would not

1818.

have waited for orders. It is unnecessary to rely much on the two manifests; although one of them, New-York, bearing on its face a destination for New-York, is

The

certainly much at variance with the pretended contingent destination of this vessel. The oath which the master made at the custom-house, that no goods were on board of the New-York, the importation of which was prohibited by law, was not only false, but is an evidence of very great incaution on his part: for if the collector would administer the oath in no other form, it was no reason whatever for his attesting to a fact, the falsity of which was apparent on the very manifest which was attached to the oath.

The alleged opposition of the crew to wait for further orders, and their threats to come up in the pilot-boat, have not been overlooked. This allegation depends altogether on the credit due to the master, and is a circumstance not very probable in itself. No pilot, in the then condition of the New-York, could have been so ignorant, and so regardless of his duty, as to take from her, without the master's consent, any part, much less the whole, of her crew. If the threat, therefore, were really made, the master ought not to have been alarmed at it, and probably would have treated it with contempt, if it had not. been suggested by himself, or had not suited his then purpose; at any rate, if by remaining longer at sea than he ought to have done, or by hovering on the coast in expectation of orders from his owners, after having received so many injuries on the 6th of October, and additional danger were produced, or wellgrounded apprehensions and opposition on the part.

t