Wood v. Pleasants , 3 Wash. C. C. 201 ( 1813 )

WASHINGTON, Circuit Justice,

added, that although a witness had been examined to prove, that the Spanish verb, which in this certificate is translated “decreed,” means also, “ordered, resolved, determined,” and does not necessarily imply that it was in writing; yet, that the decrees of every civilized nation, in relation to the disposition or sale of property, must be presumed to be in writing, unless the contrary appears. If, however, it was proved, that this particular decree, or that the decrees of the government generally, in relation to American cargoes carried to Havana during the embargo, were not in writing, evidence of the purport of those decrees or orders, taken in a proper manner, might be received; or, if it appeared that the officer who gave this certificate, would not be permitted by the government, at Havana, to give a deposition, inferior evidence, in that case, would be received; but no such proof is made in this case.

PETERS, District Judge,

gave no opinion on this last point, and doubted whether the court ought to presume, that the decree was in writing. The certificate was rejected.

WASHINGTON, Circuit Justice,

(charging jury.) The plaintiff having committed an acknowledged deviation, by returning to Havana instead of pursuing his voyage to New-Orleans, he cannot expect to recover, in this action, without satisfying you by clear and unexceptionable evidence, that he had a justifiable cause for departing from the regular course of the voyage insured.

If the necessity produced by the want of water, which is stated by the mate, really and fairly existed, a sufficiency for the voyage having been taken in at New-York—if there was not enough remaining, to supply the wants of the crew to New-Orleans, and Havana was the nearest port, or one which could be most easily gained, at which water could be obtained, then, the deviation was excusable. But, it appears extremely difficult to account for the deficiency in this article, which occasioned the return of the vessel to Havana. The mate says, that the daily expenditure did not exceed five gallons, which, in thirty days, would amount to not more than about about one-sixth of the quantity said to have been taken in at New-York; and adding to that the quantity which is proved to have been lost by leakage, more than one-lialf ought to have remained at the time when the deviation took place. Whether this quantity also leaked out, leaving only thirty gallons, or was unfairly disposed of, you must decide from all the circumstances of the case. But suppose the excuse for the return to Havana, sufficiently made out, still, it was the duty of the insured to pursue the voyage to New-Orleans, as soon as a supply of water ] was obtained at Havana, if it was in his pow- [ er to do so. The mate has stated, that soon I after the vessel arrived at that place, she was ordered into the port, and a custom-house, officer was put on board, who said that the i vessel would not be permitted to depart, with- | out landing and disposing of her cargo. That Í the captain complained to the officer of his i detention, and that the cargo was landed by ¡ the custom-house officers. But. it by no means appears, that the detention, the landing, and the sale of the cargo, were by the orders of the government, or that the captain applied for leave to depart, and was prevented. Such evidence, (for aught that appears to the court,) might have been obtained; and as it behooves the plaintiff to give you entire satisfaction that the stay at Havana was compulsory, it is for you to decide, whether this is afforded by the testimony of the mate. It is proved that this cargo, which consisted principally of paper, with some other articles, such as capers, olives, anchovies, vermicelli, raisins, almonds, soap, claret wine, butter, and boards, was equally well fitted for the New-Orleans and the Havana markets. Of course, this circumstance is entitled to some weight, in repelling a suspicion, that a deviation was originally contemplated by the owner. But, at the same time, it is not easy to discover any strong temptation in the Spanish government, to violate the rights of hospitality, due to a friendly nation, by detaining such a cargo; and. this circumstance strengthens the claim of the defendants upon the insured, to make out this part of his case by unexceptionable evidence.

Verdict for defendants.