Richette v. Stewart
RICHETTE verʃus STEWART et al.
T
HIS was an action upon a Policy of Infurance on the Brig La Catiche ; and the circumftances of the cafe, as far as they refpect the decifion of the Court, were thefe:–The Brig having fuftained confiderable damage by a ftorm, the Captain, who was alfo a part owner, was compelled to deviate from his proper voyage, and, accordingly, bore away for Cape Francois. When he arrived there, on the 28th oƒ Auguʃt, 1784, he delivered a proces verbal (which had been drawn up at fea, recently after the ftorm) into the Admiralty, in order to obtain a furvey of the veffel ; but this inftrument was merely a relation of facts, unattefted by the oath of the Captain, or any of the Mariners, who had fubfcribed it as witneffes. A copy of it being afterwards, however, brought to Philadelphia, the Captain alone, on the 4th oƒ December 1784, went before a Notary Public of this city, and in form of a proteft, fwore to the authenticity of the copy, and the truth of its contents.
When the prefent action was inftituted, a commiffion iffued to obtain a tranfcript of the proceedings in the Admiralty of Cape Francois ; and the proces verbal being returned with the other official documents, certified by the Judge under the feal of that Court, the Plaintiff's council at the trial, which came on the 4th of July, offered to read it in evidence to the Jury.
But, it was objected, by the other fide, that the proces verbal, taken by itfelf, was not admiffible as evidence, becaufe it had not been rendered upon oath ; and that, even connecting it with the fubfequent proteft at Philadelphia, it ought, neverthelefs, to be rejected ; becaufe no proteft is valid to this purpofe, that has not been made at the firft port in which the Captain arrives after a misfortune had happened to his veffel. See Woʃtcote 432. 1 Mag. 87. Beaves 140.
The Plaintiff's counfel, in reply, obferved, that although the ftrict formalities required in this country, had not been purfued, yet if the proceeding was conformably to the lex loci it ought to be received. They contended, therefore, that as the proces verbal was lodged in a competent office, and is duly certified under the feal of the Admiralty, this Court, in refpect to a foreign jurifdiction, is bound to prefume that it was regularly taken according to the laws of France. Befides, the rule in regard to all exemplifications,
1788.
rendered it neceffary that the whole record fhould be tranfmitted and certified ; and, whatever may be its weight and effect, the whole ought alfo be fubmitted to the Jury. See Valinds Ord. de Fr. 190 Dough. 554. Parke's Inʃurance 404. Bull N.P. 227.
by the court :–Though we had fome doubt, at firft, whether, connected with the fubfequent proteft, the preces verbal might not be given in evidence, yet we are now convinced that its admiffion would be highly improper. The declaration of any man, delivered either in a Pagan, or Chriʃtan, Court, without the folenmity of an oath, is not evidence of the fact afferted, even where the witnefs is fubject to no biafs; much lefs, where he is immediately interefted ; as the Captain was in the prefent inftance, being a part owner of the veffel.
The cafe in Doug. 554. does not apply to that before us; nor can the proces verbal be confidered as a judicial proceeding proceeding. With refpect to the argument, that is a part of the exemplification, it is fufficient to obferve, that if a Deed of any kind had been left with the Judge of the Admiralty, he would, probably, have certified it in the fame manner, without meaning, in any degree, to eftablifh the validity, or to affect the legal operation of the inftrument.
The reading of the proces verbal was according over-ruled.
After ftating fome other points in the caufe, the Plaintiff's counfel offered to read the proteft made in Philadelphia, on the 4thday of December 1784 ; to which their opponents likewife objected for the reafon already mentioned, that it was not made at the firft Port, and alfo on account of the length of time which had intervened.
by the court :–The queftion now before us, is, in fact, whether a proteft muft be made in the firft Port at which the Captain arrives after his veffel has been damaged? This is a matter of great importance, upon which little information can be derived from the books ; and, therefore, we were in hopes to have heard it more fully difcuffed on general principles.
We think, however, that to admit the evidence of a Captain of a veffel in excufe of his own conduct, the greateft precaution fhould be ufed, and ever poffible reftriction impofed. Hence, it is the rule in France, that the proteft fhall be made within 24 hours after the arrival at the next Port ; and here, as well as in England, it ought to be accompanied by the atteftation of a majority of the crew, See Valiens Ord. de. Fr. 190. 1 Mogenus 160. The reafon is evidently to prevent any fubfequent collufion ; and we cannot but think that it is the fafeft as well as the moft certain mode of proceeding. If, indeed, any particular circumftances fhould render it impoffible to comply, they will always form an exception to the rule ; but as that is not pretended on the prefent occafion, we are unanimous in rejecting the evidence.
As foon as the decifion was pronounced, the Plaintiff voluntarily fuffered a Nonʃuit.
Levy, Ingerʃolt and Sergeant for the Plaintiff–Lewis and Wilcocks for the Defendants.