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![handle is hein.slavery/ssactsengr0023 and id is 1 raw text is: RICH V. PARKER
RICH against PARKER. Monday, June 18th, 1798. A warranty in a policy of insur-
ance, that the ship is American property means that the ship is entitled to all
the privileges of an American flag: and if she has no passport on hoard (which
is required by the treaty between France and America) the warranty is not
complied with, and the assured cannot recover against the underwriter, though
in fact the ship suffers no inconveniences in the voyage from the want of the.
passport. [1 East, 673. 3 B. & P. 201. 14 East, 385. 3 Taun. 285.]
This was an action on two policies of insurance, one on the ship, the Atlantic,
the other on goods on board her, from London to Guernsey, from thence to the coast
of Africa during her stay and trade there, and at and from thence to her port or
ports of discharge in all or any of the British West-India Islands [706] and America..
The ship and goods were warranted to be American property. The plaintiff averred.
that the ship and goods were American, and then stated that the ship sailed from,
London to Guernsey and from thence to the coast of Africa, where she was captured,
by an enemy.
The defendant pleaded the general issue, and on the trial before Lord Kenyon, at
Guildhall, a special verdict was found; which (after stating the making of the policies,.
the sailing and capture of the ship as set forth in the declaration,) stated that the.
ship, the Atlantic, was an American ship and the property of the plaintiff, a native
and citizen of the United States of America, and that the goods were American pro-
perty. It then set forth the treaty between France and the United States of America,.
in 1778 ; in which it was agreed (inter alia) that the ships and vessels belonging to the.
subjects of the other ally must be furnished with sea-letters, or passports, expressing
the name, property, and bulk of the ship, as also the name and place of habitation of
the master or commander of the ship, that it might thereby appear that the ship really
and truly belonged to the subjects of one of the parties; which passport should be.
made out and granted according to the form annexed. And it was further agreed-
that if the ships of the subjects of either of the parties should be met with, either
sailing along the coast or on the high seas, by any ships of war of the other, or by
any privateers, the ships of war or privateers, for the avoiding of any disorder, should-
remain out of cannon-shot and might send their boats on board the merchant ship.
which they should so meet with, and might enter her to the number of two or three
men only, to whom the master or commander of such ship or vessel should exhibit
his passport concerning the property of the ship, made out according to the form
inserted in that treaty. And that the ship, when she should have shewn such pass-
port, should be free and at liberty to pursue her voyage, so as it should not be lawful
to molest or search in any manner, or to give her chase, or to force her to quit her
intended course. The verdict then stated, that before and at the time of sailing of
the ship, &c. this country was engaged in a war with France; and that the ship when
she so sailed from London on her voyage for Guernsey, had not on board any sea-
letter or passport made out and granted for her according to the form annexed to the
treaty ; but that at the time of her sailing from Guernsey and from thence continually,.
afterwards, until, and at the time of the [707] capture she was furnished with and-
bad on board her such a sea-letter or passport, &c. and which was exhibited and
shewn at the time of her capture and loss, by the master of the ship, to the com-
mander of the French privateer. But whether, &c.
Park, for the plaintiff, after stating the question to be, whether or pot the war-
ranty in the policy, that the ship and cargo were American property, had been,
complied with, argued in the affirmative. Whether or not a warranty has been
complied with, is a question of fact to be established by evidence : now here that
fact is expressly found by the jury, and that precludes all farther argument. The
defendant however insists that the ship was not American, because she had not the
passport on board during the former part of the voyage. But, in the first place, the
passport was on board before, and at the time of the capture ; and it does not appear
that the ship suffered the least inconvenience or interruption from not having it on
board when she sailed from London to Guernsey. And in the next place the want of
that passport neither negatives the warranty that the ship and goods were American,
nor was it a cause of seizure or confiscation either by the law of nations or by the
treaty between France and America. Whether the ship were or were not American
is one question, whether or not she had the passport on board is another, not depending
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7 T. R. 706.](ViewImageLocal?handle=hein.slavery/ssactsengr0023&div=1&collection=&method=preview&ext=.png&size=3)