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of the drew, he would not without great reluctance 1818 on the part of the court, be permitted to draw any very The great advantage from a circumstance which his own New-York. imprudence, if not his own fault, occasioned. The towing of the New-York into port by a pilot boat, is supposed to be a circumstance which must have proceeded from her disabled condition. This does not follow. It may have proceeded from the request of her master; for it can hardly be believed that a vessel that had behaved so well after the gale of the 6th October, and which is not stated to have met with any injury from subsequent causes, should, the moment it was necessary to take a pilot on board, be so ungoverhable as to require towing into port. If this were really the case, it is a matter of some surprise, that the claimant should not have recourse to the pilot himself to establish the fact, and the reason of it. Notwithstanding the untoward circumstances, which have already been taken notice of, and the temptations which existed to commit violations of the restrictive laws, which it is known were great, and led to frequent infractions of them, the court is asked to acquit this property, without producing the letter of instructions to the master, or the orders to the consignee in Jamaica, where it is alleged there was one, although his name is not given, or any bill of lading, or invoice, or log-book, and in the face of two manifests, the one purporting a destination contrary to law. To expect an acquittal, in a case involved in so much mystery, it is not too much to say, that the uncommon circumstances attending it should have been explained Vol. III. 11

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and accounted for in the most satisfactory mamner.
But when for this explanation, the court is referred to
the unsupported testimony of the master, who is himself
the particeps criminis, if any offence have been com.
mitted, and who stands convicted on the papers be-
fore us, of a palpable deviation from truth, and whose
account, if true, would have induced him and his crew
to direct their course to Amelia Island, instead of en-
countering a more northern latitude, we must believe
that the mate and others, who might have proved the
fact of distress, if real, beyond all doubt, were not
produced, not from mere negligence or inattention, but
from a conviction that they would afford no sanction
to the master's relation. It is now near eighteen
months since the decree of the circuit court was pro-
nounced, in which an intimation was given, that farther
testimony would be admitted here, and yet none has
been produced.
. It is the opinion, threefore, of a majority of the

judges, that the sentence of the court be affirmed, with

costs.

Mr. Justice Johnsos. This is a libel against the cargo of the ship New-York. The vessel herself was libelled for lading a cargo with intent to violate the laws of the United States; but the cargo in this case is libelled as forfeited, for having been imported into the city of New-York contrary to law. The intent with which it was laden on board becomes immaterial as to the cargo, except so far as it might operate to cast a shade of suspicion over the act of coming into port. The defence set up is, that the ship sailed with the alternative destination to go into 1818. New-York if legal, and if not, to bear away for Ame- Tlia Island. That she was ordered to call off the port New-York of New-York for information; and in her voyage thither she encountered a storm, from which she sustained such damages as to oblige her to put into NewYork for the safety of the lives of the passengers and crew. That a vessel under such circumstances has a right to call of a port for information has been decided in various cases; and it has, also, been decided, and is not now questioned, that if in the prosecution of that voyage, she sustains such damage as renders it unsafe to keep the sea, she might innocently enter the ports of the TInited States to repair, and resume her voyage. The laws of the United States make provision in such cases for securing the cargo to prevent an evasion efour trade-laws. There are, then, but two questions in the case: 1st Whether her actual state of distress was such as to make it unsafe for her to keep the seaso 2d. Whether that state of distress was the effect of design or accident? Admitting that the greatest frauds that can be imagined had been proven to have been in contemplation, yet as the libel does not charge a lading with intent to import into the United States, it is immaterial to this decision to inquire what was intended, if it be made to appear that the distress, was real, and not pretended or fictitious. Now, as far as I can judge, the facts in this case are such as leave nothing for the mind to halt upon. The distress was obvious to the senses, and the nature of it such as could not have been produced by the ingenuity of man. Without dwelling

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upon less important particulars, it appears, from the surveys, that the fore-topsail yards were sprung; the main cap split and settled; and the rudder carried away, or, in the words of the survey, gone; and the sternpost, after sheathing, and counterplank much chafed. These words carried away and gone, mean, in nautical language, wholly disabled on rendered useless. And that such was the state of the rudder is evident from the contents of the surveys. For, when the vessel was hove keel out, it appeared that the middle rudder brace was broken, and the crown of the lower brace gone; so that it is evident the rudder must have swung in the chains. And that this was the case appears from several particulars, also gethered from the surveys: 1st. The impossibility, on any other supposition, to believe, that the surveyors would on the first survey, before the vessel was hove-down, report the rudder gone. 2d. The chafed state of the rudder and stern post, could only have been produced by the action of the rudder against the stern-post, when forced to and fro by the waves, and must have occurred at sea. And, lastly, the same cause naturally produced the injury reported to have been done to her counter-plank and, after sheathing. These injuries, I repeat, could not have been done by the hand of man, especially those sustained under water; and although I see neither fraud nor falsehood in the case, yet I care not though every word of the testimony, besides, be false: that falsehood could neither have produced these injuries, nor repaired them; and the evidence is sufficient to show that the safety of the lives of the passengers and crew required the ves- 1818. N

sel to put into port, and therefore it was innocent. The Samuel In this opinion I am supported by two of my bre-

thren, the CHIEF Justice, and Mr. Justice Washing

Ton.

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A witness offored to be examined, viva voce, in open court, in an instance cause, ordered to be examined out of court.

This cause, being an instance, or revenue cause, had been ordered to farther proof at a former term." Feb. 8th.

Mr. Daggett, for the claimants, now offered to produce a witness to be examined, viva voce, in open court on farther proof; but the court, for the sake of convenience, ordered his deposition to be taken in wri

ting out of court. ing out of cour Feb. 11th

Mr. Chief Justice MARsh ALL delivered the opinion of the court, reversing the decree of condemnation in the court below, and ordering the property to be restored as claimed.

Decree reversed.

a Wide ante vol. 1 p. 9.

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