The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-05-03
LAW REPORT.
Circuit Court Of the Uaite.! States, Philadelphia,
AprII is, 1905.
cALsRAirH Us. Oracle.

AprH is, 1906.
cALBRAiTH as. CRACIE.
This was an aeaion brought on policy of In.
furance on Goods on board the brig Carolina,
at and from HAVANA to Carthasena, aud al and
from thence 10 Philadelphia, with liberty to
touch ut I.aguira and one or more ports on the
Spanifh Maine and i'll the Wet. Indie s.-The
property warranted American, with provifo,
that if the fame lhou.d be called in queltion, it
ihould bc iuticisnt on tie part Of the afured,
toprove, in any court IN the United States, that
the property was American.-It appeared that
the ve:le was purchafsd in Philadelphia by a
nerican cisizens-went to New Orleans, with
an American Regifter; that lhe appeared at fea
with American, hut i'll port with Spanilh pa
Pers, had SpaIiih perinit--purchaied cargo
OF Hour in HAVANA, aud there procured Spa
nard, named Hernandez, to go SuPercareO to
Carthagena, and to receive a third of the neat
proceed IF falcs but no commiions.-At Ha-
wanna the Carolina was chartered, one third by
hernandez and Cuelta iSpaniards) and the other
two thirds by Americans. The charter party
bore date the e3d of March, and the order to
lniure was given ON the 10th Of May, 1895.
The bill OF lading expreiied the cargo 10 be on
account of James Calbraith & Co. and Rober:
Meade. On the 4,h of May, 1875, infurance
was efietted.-On the 18th of May the Carroll
ma was captured by the French privateer Natl
onal Razor, and on the o5th re-taken by the
Engliih ich'r. Mufquito and carried into New
Provdence--there the cargo was claimed by
Hernandez as Spaniih property, who demanded
reitoration on payment OF ialvage-but the Ca
rolina and cargo were condemned by the Court
OF Vice-Ainraty.
MeiirS. HEATLY and INCERsoLL, for the
plaintiff, commended, that it was neceilary to
employ Spanard in this kind of trade, which
mutt have been known TO the iniurer, as it was
well underitood, generally; that Hernandez
was not general agent, but a lbeeiAl agent IL
mited to particular purpoies, and that he could
bind only for the purpofe for which he was a.
gent shat his claim, whether from ignorance
or not, was Of no contequence to the plaintiffs
that the underwriters were not to be diicharg-
ed by merely taking this man on board--that
the principle was the fame, whether Hernandez
was to have commiiiion, or in lieu of it, 4 por
ton of the cargo.
Meilrs. CHAUNcEY and RAwLE, for the de-
PENDANT, conten6ed that the briggs carrying
double papers was an Infringement of the war
rantry and a difcharge of the underwriters but
more Especially as Hernandez fwore before the
Britiih Cour,, in iupport of his claim, that the
property was Spaniih-the plaintiffs themfelves
claim only two thirds, allowing one third to
have been in Cucfta and Hernandez. Spain and
France were at war-America neutral-why
gent did, and fwear the property Spaniih, which
WAS enfuring condemnation, when that might
have been avoided by claiming as American /?
His honor Judge WASHINGTON obierved In
his charge, that a.! commercial queftions were
important but not difficult is necef1ary to
follow ehsbliihed decifons, in order that ours
may be refpetted abroad, commerce Being the
chain Of connection between the y. States re-
fpettivcly ard between them and the ref of the
A. ara i'll
concerned by the charter party--at the time Of
tbs warranty given 10 the infnrer that the pro-
perty was American, it was traveriing the ocean
as SpaRifh--to the defendants objection that
the iniIrer itould have been acquainted with
the double papers, the plaintiffs reply the trade
was notorous-but TO proof has been given Of
the COURT Of this trade. IF. as the plaintiffs
urge, they had fpecial permiiiion to carry on
this trade, where was the occahon for taking
Hernandez as fupercargo? The difference be-
tween representation by an afiired to an UNI
derwriter and warranty is that any deviation
from The irf mutt be material, but the fecond
is condition precedent, literally TO BE- compli-
ed with; this warranty imports the property
to be ncutra-that it ihall continue fo-that fine
fhall have all the particular documents neeef-
fairy to the American aud neutral character. The
caufe turns on this point-the plaintiffs have I'll
pnlated that the property is American and neu-
tra, and that they will do nor omit nothing to
fecure thofe characters. What neCeliity for the
warranty as neutral unlef. the vefle' is to be
nay;gated as fuch? What fgniaes the warran-
try if Gie is never to he neutral? When the
Carolina was met by the French privateer, ihe
thould have produced American papers. AS
Judge mutt fay, ile would have been diicharg
ed lad The done 90, becaufc it would have been
right-when carried into Providence fhe
ihould have been claimed as American, but as
if mad, they iwore themGrlyes Spanib. Can it
be faid that this was compliance with the war
ra1try? Could any thing be more open vio-
lation oft :! 1t is laid Hernandez was not a.
gcnt-why then did not the capt. claim as A
Inerican He violated his duty in not claiming.
Bur Hernandez was mott undoubtedly the a.
gent. And his honour declared that the plain
tiff had violated his warranty and that his OPT
MON was he could not recover.
The Jury foaaG Jar The Defendant.