1818.

The

plained and accounted for in the most satisfactory manner. But when for this explanation, the court is New-York. referred to the unsupported testimony of the master, who is himself the particeps criminis, if any offence have been committed, and who stands convicted on the papers before 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 encountering 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 pronounced, in which an intimation was given, that further testimony would be admitted here, and yet none has been produced.

It is the opinion, therefore, of a majority of the judges, that the sentence of the court be affirmed, with

costs.

Mr. Justice JOHNSON. 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

1818.

The

ship sailed with the alternative destination to go into New-York if legal, and if not, to bear away for Amelia 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 damage 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 off 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 United 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 of our 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 seas? 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

1818.

The

upon less important particulars, it appears, from the surveys, that the fore-topsail yards were sprung; the New-York. 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 or 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 gathered 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 vessel to put into port, and therefore it was innocent.

In this opinion I am supported by two of my brethren, the CHIEF JUSTICE, and Mr. Justice WASH

INGTON.

1818.

The Samuel,

Decree affirmed.

(PRACTICE.)

The SAMUEL.-Beach, et al. Claimants

A witness offered 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.

Mr. Dagget, for the claimants, now offered to pro- Feb. 3d. duce 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 writing out of court.

Mr. Chief Justice MARSHALL delivered the opi- Feb. 11th nion of the court, reversing the decree of condemna

tion in the court below, and ordering the property to

be restored as claimed.

Decree reversed.

a Vide ante, vol. I. p. 9,

1818.

The Star.

Feb. 11th.

(INSTANCE COURT.)

The SAN PEDRO.-Valverde, Claimant."

Decree of restitution affirmed, with a certificate of probable cause, in an instance cause, on farther proof.

THIS cause was ordered to farther proof at the last term. Farther proof was produced at the present term, and the cause submitted thereon without argu

ment.

Mr. Chief Justice MARSHALL delivered the opinion of the court, affirming the decree of restitution in the court below, with a certificate of probable cause of seizure.

Decree affirmed.

(PRIZE.)

The STAR.-Dickenson et al. Claimants.

An American vessel was captured by the enemy, and after condemnation and sale to a subject of the enemy, was recaptured by an American privateer. Held, that the original owner was not entitled to restitution on payment of salvage, under the salvage act of the 3d of March, 1800, ch. 14, and the prize act of the 26th of June, 1812, ch. 107.

a Vide ante, vol. II. p. 9.