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Smith v. Universal Insurance Company. 6 W.

only, and not broken up by this occurrence, for the vessel afterwards returned in safety to St. Ander. The insurers do not undertake that the voyage shall be performed without delay, or that the perils insured against shall not occur ; they undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the voyage be not thereby broken up, but is or may be resumed, the insured cannot abandon for a total loss. If a vessel be captured during a voyage, and afterwards be recaptured, and performs, or may perform it, there can be no abandonment after the recapture for a technical total loss. In the present case, the vessel actually did resume her voyage after the restraint ceased ; and there is no evidence to show that any object of the voyage was defeated by this * temporary [ *186 ] restraint and delay to avoid capture. Then what was the real cause of the final destruction of the voyage? It was that St. Ander, which but for a short time was in the possession of the troops of General Mina, was in transitu, again occupied by the Royalists, and the colonial government resumed its functions. A trade was inhibited with that place, by the ordinary colonial laws of Spain; and the voyage itself, in which The Ellen Tooker was engaged, placed her and her cargo also, in the character of an enemy. It was clear, therefore, that a proceeding into St. Ander would have subjected The Ellen Tooker to confiscation for a double cause; for breach of the ordinary laws of trade, and for a violation of neutral duties. The voyage then was broken up from fear of loss, by reason of the seizure and confiscation of the property. It was abandoned by the master quia timebat, and not because there was any actual direct restraint, which prevented the vessel from proceeding to the port of destination. The case, therefore, falls directly within the authority of the cases of Hadkinson v. Robinson, 3 Bos. and Pull. 388, and Lubbock v. Rowcroft, 5 Esp. R. 50, which have never been shaken. In the former case, Lord Alvanley said, “any loss which necessarily arises from capture or detention of princes, is a loss within the policy; but here the captain, learning that if he entered the port of destination, the vessel would be liable to confiscation, avoided that port, whereby the object of the voyage is defeated. This does not operate to the total destruction of the thing insured.” There are precisely the same * circumstances in (* 187 ] the case now at bar. The underwriter does not warrant that the vessel shall have a right to trade at the port of destination; but only that, notwithstanding the perils insured against, the vessel shall proceed to such port. If the plaintiffs, in the events which have occurred, were entitled to abandon and recover, as for a technical The Robert Edwards. 6 W.

total loss, they would have been entitled to abandon for the same cause at the time of the vessel's sailing from New York on the voyage; for St. Ander was at that time just as much shut against the vessel, and she was just as liable to confiscation for illegal traffic with that place, as she was at the time the voyage was broken up.

It is the unanimous opinion of the court, that the judgment of the circuit court be affirmed, with costs.

12 P. 378; 5 H. 233.

The Robert EDWARDS. Savage, Claimant.

6 W. 187. A question of fact, under the 46th section of the Collection Law of the 20 March, 1799,

(1 Stats, at Large, 661,) exempting from duty the wearing apparel, and other personal baggage, of persons arriving in the United States. Where the res gestæ, in a revenue cause, are incapable of explanation consistently with the

innocence of the party, condemnation follows, although there be no positive testimony of the offence having been committed. Circumstances are sometimes more convincing than

the most positive evidence. [ * 188 1 * Although a mere intention to evade the payment of duties be not, per se, a cause

of forfeiture, yet when a question arises whether an act has been committed which draws after it that consequence, such intention will justify the court in not putting on the conduct of the party, in respect to the act in question, an interpretation as favorable as under other circumstances it would be disposed to do.

APPEAL from the circuit court of the United States for South Carolina.

Winder and Raymond, for the appellant and claimant.

The Attorney-General, for the United States.

Livingston, J., delivered the opinion of the court.

This is a libel for an alleged forfeiture under the 46th section of the Collection Law, passed the second of March, 1799.

This section exempts from duty the wearing apparel, and other personal baggage, of those persons who arrive in the United States; and to ascertain what articles are to be exempted, it is directed that due entry thereof, as of other goods, but separate and distinct therefrom, shall be made with the collector, by the owner or his agent, verified by oath, stating, among other things, that the packages mentioned in such entry, contain no goods whatever, except the wearing apparel and other personal baggage of the person to whom they belong. And it is provided that whenever any articles subject to duty shall be found among such baggage, which shall not be mentioned The Robert Edwards. 6 W. to the collector at the time such entry is made, they shall be forfeited, and the person in * whose baggage they shall | * 189 1 be found, shall, moreover, forfeit and pay treble the value of such articles.

These proceedings cornmenced in the district court of the district of South Carolina, and after sentences of condemnation in that court, and in the circuit court of the United States for that district, the claimant has appealed to this court.

The only question we have to decide, is whether the goods libelled, and which are admitted to be subject to duty, were entered as baggage or not. If they were, they must be condemned; if not, the claimant is entitled to restitution.

The claimant insists that the trunks seized were not included in her baggage entry, and that no act of hers, prior or subsequent to the entry, shows that it was her intention to cover them by it. Her baggage entry comprised “ seven trunks wearing apparel, sundry bandboxes and bedding, for Mrs. Savage and family, passengers in the ship Robert Edwards.” Under this entry, and a permit given in conformity with it, the claimant took away several trunks and bandboxes, the contents of some of which do not appear, but she alleges that they contained only baggage, and no dutiable article, and that she never demanded the trunks in question as part of those mentioned in the entry of her baggage. Some reliance is also placed on the fact that before any seizure these trunks were regularly entered by the master, and the duties on them secured or paid. Whether they were thus entered or not can have no influence on the present question, which is confined to the single inquiry whether they had, * previous to such act on the part of the master, [ * 190 ) been entered by the owner as part of her baggage. For no act of the master, subsequent to such entry, could relieve them from the forfeiture which in that case had previously attached.

It will be sufficient to advert to a few of the prominent facts, to ascertain the real character of this transaction. The court has been reminded that it ought not, without the most satisfactory and positive proof, in a case so highly penal, to decide that a violation of law has been committed. Although such proof may generally be desirable, we are not to shut our eyes on circumstances which sometimes carry with them a conviction which the most positive testimony will sometimes fail to produce. And if such circumstances cannot well consist with the innocence of the party, and arise out of her own conduct, and remain unexplained, she cannot complain if she be the victim of them. No extraordinary prudence or circumspection on the part of the claimant, was necessary to have avoided the unpleasant The Robert Edwards. 6 W. predicament in which she is placed. If she had brought these goods on board in London, as cargo; if she had paid freight for them as such; if she had desired them to be placed on the manifest of the cargo, which she was most probably apprised was necessary; if, when she entered her other merchandise imported in the same vessel, she had also entered these ; if, after making her baggage entry, she had distinguished or informed the inspector which of the trunks con

tained her baggage, and which were filled with merchan[ *191 ] dise, the whole * of the present difficulty would have been

avoided. The claimant neglecting to take any one of these precautions, which could not have been the effect of ignorance, as it appears she is occasionally engaged in the importation of goods in the line of her business, leads irresistibly to the conclusion that she intended to land these trunks without the payment of duties, and that this end was to be effected under the disguise of entering them as baggage and wearing apparel. Although a mere intention to evade such payment be no cause of forfeiture, yet when a question arises, whether an act has been committed which draws after it this consequence, such intention will assist in dispelling some of the doubts in which the act itself might otherwise be involved, and will justify a court in not putting on the conduct of the party, in relation to the act in question, an interpretation as favorable as under other circumstances it would feel disposed to do. Thus, in the case before us, the claimant wishes us to believe that the seven trunks of wearing apparel, and the bandboxes which were included in her baggage entry, were all of them actually landed under her permit; and that, therefore, the five trunks which remained on board, and were seized as composing part of her baggage entry, were not comprised in it. But is this made out with any reasonable certainty ? On the contrary, is there any evidence whatever on which we can come to a satisfactory conclusion that seven trunks, which was the

number entered by her as baggage, were actually landed [ *192 ] before the seizure? What the * claimant herself considered

as bandboxes, and actually represented as such to the inspector, she now desires may be converted into trunks. Unless this can be done, which would be to disbelieve the whole evidence in the cause, there is no pretence for saying that all the trunks entered by her as baggage had been landed. The marks on the trunks do not furnish even a presumption in her favor, for on those landed, and on those seized, we find the same inscription, that is, “ Mrs. Savage's baggage, apparel, and haberdashery.” In this uncer. tainty and confusion, which is the result of her own irregular conduct, and which it was her business, and not that of the court, to The Nueva Anna and Liebre. 6 W. remove, she has exposed her case to very unfavorable inferences. One of the trunks landed was empty, or contained only a few books and loose papers; and yet it appears, by a cocket produced before the circuit court, that this very trunk, when taken aboard, was valued in London at £115 sterling. What became of the goods which it then contained, is left without explanation. This forms a part of the res gestæ, and is a circumstance, if not of strong suspicion, at any rate but little calculated to evince the integrity of the transaction.

Without, therefore, entering into a more minute detail of the circumstances of this case, the court is well satisfied, from the whole of the evidence, notwithstanding some little obscurity in which it is involved, that the trunks in question formed a part of the baggage entry of the claimant, and, therefore, affirm the sentence of the circuit court, with costs.

THE Nueva Anna and LIEBRE. The Spanish Consul, Claimant.

6 W. 193. This court does not recognize the existence of any lawful court of prize at Galveztown, nor

of any Mexican republic or state, with power to authorize captures in war. Appeal from the district court of the United States for Louisiana.

These were the cases of the cargoes of two Spanish ships, captured and condemned by a pretended court of admiralty at Galveztown, constituted by Commodore Aury, under the alleged authority of the Mexican republic. The goods were, after this condemnation, brought into the port of New Orleans, and there libelled by the original Spanish owners in the district court. That court decreed restitution to the original owners, and the captors appealed to this court.

Hopkinson, for the libellants, no counsel appearing for the captors.

The Court stated that it did not recognize the existence of any court of admiralty sitting at Galveztown, with authority to adjudi. cate on captures, nor had the government of the United States hitherto acknowledged the existence of any Mexican republic or state at war with Spain; so that the court could not consider as legal any acts done under the * flag and commission of [ * 194] such republic or state. But, as the record in this case stated the capture to have been made under the flag of Buenos Ayres, it became necessary to send back the case, in order to ascertain under what authority it was in fact made. Sentence reversed, and cause remanded for further proceedings.

5 P. 1.

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