Sawyer v.

Maine Fire & Marine Insurance Lemuel Sawyer & Others versus The Maine Fire and Marine
Insurance Company Lemuel Sawyer & Others versus The Maine Fire and Marine Insurance Company. 12
Mass. 291 Massachusetts Supreme Judicial Court Decided May 01 1815 The cause was argued by
Longfellow and Emery, for the plaintiffs,, and by Mellen and Whitman, for the defendants ; and, being
continued. nisi advisement, judgment was rendered at the following September term in Berkshire. --
Sawyer v. Maine Fire & Marine Insurance, 12 Mass. 291, 257-91 (Mass. 1815)

This was an action of the case upon a policy of insurance, dated March 20th, 1812, for $6000, upon the
brig Lydia, valued at $7000, at and from Portland to one or more ports in the West Indies, and at and
from thence to her port of discharge in the United States, against capture and condemnation only. The
plaintiffs declared for a total loss by capture, in the first count, by a vessel unknown belonging to citizens
of Hispaniola ; and, in the second count, by pirates, rovers, &c., on the 19th of April, 1812. On the trial
before Putnam, J, at the sittings here by adjournment of the last October term, it appeared that proof of
the loss was made, and an abandonment offered, on the 14th of May, 1812. The policy and interest
were admitted. The plaintiffs proved, that, at the time of making the insurance, it was stated to the
defendants that the vessel was bound to Port au Prince. They also read the deposition of Elisha Sawyer
(a copy of which came up in the case), stating that he was master of the said vessel on the voyage
insured ; that, on arriving in sight [*292] of Port au Prince, he was * hailed by an armed brig be longing
to the King of Hayti, and ordered to come on board. The captain then informed the witness that he was
fighting against Petion, who had possession of Port au Prince, that the King of Hayti wanted his
provisions, and that if he, the witness, would go to St. Mark's, he should have a good price for his cargo ;
but that, if he refused, he should send him. On the witness’s refusing, a prize-master and five men were
put on board the' brig, and an armed schooner accompanied her to St. Mark's. On his arrival there, he
was ordered on shore, and was carried before the Prince Gonaive, who said he wanted the cargo, and
would pay the witness for it. The prince then, ordered the sails taken from the brig and brought on
shore, and twelve men were placed on board. The witness then went on board the vessel, and on the
third day after was, with all his crew, ordered on shore ; and being carried before the minister of justice,
so called, he read to them a condemnation of the vessel and cargo. The next day the vessel was sold,
and the cargo taken out and put into the King’s warehouse. The vessel was purchased by Messrs. Dodge
and Myers, of Philadelphia, for the master, at the price of $ 4000, and he went in her to Philadelphia,
where he sold her. He had never heard of the blockade of Port au Prince before his capture. The King of
Hayti and all his officers were blacks, except his Majesty’s interpreter, who was a mulatto. The principal
facts in the master’s deposition were confirmed by the testimony of the mate of the vessel. The
defendants produced a copy of the condemnation,† which came up in the case, and contended that it
thereby * appeared that the brig was condemned for [ * 293 ] a violation of the blockade of Port au
Price, by the Emperor of Hayti, and that the decree was to be considered as conclusive evidence of the
facts thereby decided. There was no evidence that Port au Prince was in fact blockaded at the time of
the capture, other than what arises from the said decree of condemnation. Nor was there any evidence
that the brig was notified of any blockade, or warned not to enter for that cause, prior to the capture.
The collector of the customs for the district of Port land testified, that, since the expiration of the law of
the United States prohibiting intercourse with St. Domingo, many clearances had been made from the
United States for Port au Prince, and many clearances from Hayti to the United States. It was in
evidence, that Christophe, or Henry, was the sovereign defacto of Cape Frangois and of that part of the
island ; and that Petion was the sove- [ * 294 ] reign de facto of Port au Prince ; * that Petion and
Christophe are at war with each other, each declaring the other to be in rebellion against France; but
each claiming to have authority in his own dominions ; that they have their customhouses, and custom-
house officers ; and ships of many nations, English, Spanish, American, &c., trade there, and business is
regularly transacted ; that the United States have had a consul at Cape Frangois, since the government
has been in rebellion against France ; particularly, that Colonel Lear was consul there when Toussaint
was regent ; that protests, decrees, and other proceedings of the admiralty courts from Cape Frangois
are frequently seen in the United States ; and that a proclamation of the blockade of Port au Prince by
Christophe, or King Henry, was published here in June, 1812. The defendant further contended, if the
decree of condemnation in this case was not conclusive, or did not prove that there had been a violation
of blockade, that the purchase of the brig by the master wás for the benefit of the owners, and in the
nature of a ransom ; and, therefore, that in any event the defendants were not liable for more than a
partial loss. The plaintiffs replied to this, that the vessel was not bought for their account, and that
neither the vessel nor the proceeds thereof had directly or indirectly come to their hands or possession.
And there was no evidence produced by the defendants to controvert that statement. The plaintiffs
objected to the admission‘,of the decree of condemnation, as conclusive evidence of the facts it decided
; contending that Henry, and those under him exercising the government of Cape Francois, were rebels,
and their.proceedings not to be regarded as the acts of civilized nations ; and further, if they were so
received, yet that there had been no decision, which necessarily involved the brig Lydia in the violation
of a blockade. The judge, intending to reserve the questions of law in the case, overruled the objection,
and, for the purpose of the trial, instructed the jury, that the decree must be considered * as conclusive
evidence that the vessel was condemned for [* 2953-violation of blockade. The jury accordingly
returned a verdict for the defendants, which, was taken subject to the opinion of the Court in the
premises. If that opinion should be, that the said decree does decide and is conclusive evidence of a
violation of blockade by the vessel, the verdict was to stand ; otherwise, the defendants were to be
defaulted, and: judgment was to be rendered for a total or partial loss, in such sum. as, upon the facts
before stated, the Court should determine the plain?tiffs ought to recover. A decree of a court of
admiralty in the island of Hayti not founded upon a libel, and in which no trial was had, condemning a
vessel and cargo belonging to citizens of the United States, for an alleged breach of blockade, was
holden not to be conclusive evidence of that fact. Where, upon a sale of a vessel of the United States,
under a decree of the court of admiralty in a foreign country, the master of the vessel purchased her on
his own account without any previous authority or posterior assent on the part of the owners, the
underwriters cannot avail themselves of such purchase, to reduce the loss from a total to a partial one.
J. The decree offered in this case, as conclusive evidence of a violation of blockade by the vessel insured,
cannot be held so to operate. Indeed, it may be doubtful whether it ought to have been admitted at all.
Waiving all question as to the character of the government, under which the seizure of the vessel and
the decree of forfeiture took place, it certainly is essentially defective when attempted to be applied to
this contract of insurance. For it does not appear that any libel was filed, any monition issued, any
hearing had, or that any of those formalities had taken place, which are necessary to give a conclusive
operation to decrees of foreign courts. For aught that appears from the copy of the proceedings before
us, the forfeiture was decreed by mere arbitrary power, without any trial ; and that some of the forms of
justice, used in civilized countries, had been assumed, without any regard to the substantial requisites of
a judicial inquiry.† Considering the decree, then, as not conclusive, the facts, which it purports to
establish, are abundantly disproved by the other testimony in the case ; so that the seizure of the vessel
must be taken to have been an act of unjustifiable violence, for which the underwriters are undoubtedly
answerable. [*296] * The question, which the Court thought required time for deliberation, relates to
the purchase of the vessel made by the master at the sale ordered by the government, which caused her
to be seized. The counsel for the defendants have contended, that the purchase must be taken to have
been for the benefit of the assured, and that the effect of it is to confine the plaintiffs, in their recovery,
to the sum paid for the vessel by the master. The case of Havelock vs. Rockwood (1), cited in support of
this argument, decides, that, where the owner has purchased his vessel, and will not abandon her, he
shall not recover for a total loss, even after a hostile capture and a sale of the vessel after
condemnation.' The same principle has been adopted with us, in the case of Oliver vs. The Newburyport
Insurance Company. (2) But in those cases the former owner had reacquired possession oí his property,
and was considered as holding it by his original title. It has not been decided, that, when a total loss has
happened within the terms of the policy, the right to abandon shall be divested by an unauthorized
purchase of the master, avowedly made on his own account, and not on account of the owners. Perhaps
the owners may / reclaim their vessel, purchased under such circumstances, having a right to consider
the master as their agent. But, unless they had given previous authority, or had subsequently ratified his
act by accepting the vessel, they could not be obliged to relinquish their claim upon the underwriters for
a total loss. In this case, there is no evidence of any authority given to the master to purchase, or of any
assent of the owners after they knew of the purchase. On the contrary, it is testified, that he purchased
entirely on his own account, and afterwards sold her for his own benefit. We see no ground, therefore,
for confining the plaintiffs to a partial loss ; they having seasonably abandoned, upon information of the
fact, that the vessel was seized and the voyage broken up. Defendants defaulted. -- Sawyer v. Maine Fire
& Marine Insurance, 12 Mass. 291, 254-58 (Mass. 1815)