Peisch v. Ware. 4 C. duties and security of the revenue may be taken, at the place of landing; not a case in which a landing must be made without a permit, often in the absence of a revenue officer, and where the goods could not be permitted, without extreme peril, to remain at the place of landing until these measures should be taken. The court is also of opinion that the removal for which the act punishes the owner with a forfeiture of the goods must be made with his consent or connivance, or with that of some person employed or trusted by him. If, by private theft, or open robbery, without any fault on his part, his property should be invaded, while in the custody of the officer of the revenue, the law cannot be understood to punish him with the forfeiture of that property. In the 52d section, therefore, to which the revenue officers seem to have intended to conform, so far as the case would admit, which directs them in the case of an incomplete entry to store the goods at the risk and expense of the owner or consignee, no forfeiture is annexed to their removal, unless the penalties of the 51st section, or of the 43d section, be applied to the 52d. The court is of opinion that those penalties cannot be so applied in this case, not only because, from the whole tenor [365] of the law, its provisions appear not to be adapted to goods saved from a vessel under the circumstances in which The Favourite was found, but, because, also, the law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control. It has been urged on the part of the United States, that although the property of the owner should not be forfeited, yet that moiety which is claimed by the salvors has justly incurred the penalties of the law. But if the award rendered in this case be not binding, the salvors could have only a general claim for salvage, such as a court might allow; and if it be binding, still they acquired no title to any specific property. Their claim was in the nature of a general lien, and any irregular proceeding on their part would rather furnish motives for diminishing their salvage, if that be not absolutely fixed by the award, than ground of forfeiture. The irregularity, too, if any, which has been committed by them, being merely an attempt to assert, in a couse of law, a title they supposed themselves to possess, and with no view to defraud the revenue, this court would not be inclined to put a strained construction on the act of congress, in order to create a forfeiture. The third count in the first libel, and the second libel, claim a forfeiture on the allegation that the goods were concealed. The fact Peisch v. Ware. 4 C. does not support this allegation. There was no concealment in the case. Taking all the circumstances into consideration, it is the unanimous opinion of the court, that no forfeiture has been incurred, and that the libels filed on the part of the United States were properly dismissed. The next question to be considered is, to what amount of salage are the salvors entitled? That their claim is good for something, is the opinion of all the judges; but on the amount to be allowed the same unanimity does not prevail. [ * 366 ] *For the quantum of salvage to be allowed, no positive rules are fixed. It depends on the merit of salvors, in estimating which, a variety of considerations have their influence. In the case before the court, the opinion of the majority is, that the sentence of the circuit court ought to be affirmed. This opinion, however, is made up on different grounds. Two of the judges are of opinion that the award was fairly entered into, and although both parties might be mistaken with respect to the obligation created by the law of Delaware, yet there is no reason to suppose any imposition on either part; nor is there any other ground on which the award can be impeached or set aside. Two other judges, who do not think the award obligatory, view it as the opinion of fair and intelligent men, on the spot, of the real merit of the salvors, and connecting it with the testimony in the cause, are in favor of the salvage which has been awarded, and which has been allowed by the sentences of the district and circuit courts. Three judges are of opinion that the award is of no validity, and ought to have no influence. They think the conduct of the salvors, in taking the goods out of the possession of the revenue officer, though by legal process, is improper, and that the salvage allowed is too great. They acquiesce, however, cheerfully in the opinion of the majority of the court, and express their dissent from that opinion, solely for the purpose of preventing this sentence from having more than its due influence on future cases of salvage. The sentence of the circuit court is affirmed, without costs. 15 H. 40. * Morgan v. Callender. 4 C. SHEARMAN V. IRVINE'S LESSEE. 4 C. 367. [367] The act of limitations of the State of Georgia, (1767.) does not require an entry within seven years after the title accrued, unless there is an adverse possession. ERROR to the circuit court of the United States for the district of Georgia, in an action of ejectment. The question was, whether the act of limitations of that State required an entry to be made on lands within seven years after the title of the plaintiff accrued. There was no adverse possession prior to the ouster, laid in the declaration, just before the suit was brought. No counsel appeared for the plaintiff, and P. B. Key, for the defendant, prayed an affirmance. MARSHALL, C. J. The error alleged is founded on a [*369] construction of the act of Georgia, which this court thinks is totally inadmissible. How such an opinion could have been entertained is unaccountable. There is no foundation for it. Judgment affirmed, with costs. *MORGAN v. Callender. 4 C. 370. [ * 370 ] APPEAL from the district court of the United States for the territory of Orleans, in a suit in equity. That court was established by the act of congress, of 26th of March, 1804, (2 Stats. at Large, 285, s. 8,) and had a jurisdiction similar to that given to the district court of the United States for the district of Kentucky. This court was of opinion that an appeal lies from that court to this; but that in this case, the court below had not jurisdiction, because it did not appear that the parties were citizens of different States, nor aliens, &c., so as to give them a right to litigate in the courts of the United States. Alexander v. Baltimore Insurance Co. 4 C. ALEXANDER v. THE BALTIMORE INSURANCE COMPANY. 4 C. 370. The seizure of the cargo, the vessel being at liberty to proceed, does not justify an abandonment of the vessel. Total loss of the cargo during the voyage, does not constitute a technical total loss of the vessel. ERROR to the circuit court of the United States for the district of Maryland. THE CHIEF JUSTICE, in delivering the opinion of the court, stated the material facts, found by the special verdict, to be as follows, namely: This action was brought against the underwriters, to recover the amount of a policy insuring the ship John and Henry, from Charleston to Port Republican, or one other port in the Bite of Leogane. On the 2d of October, 1803, The John and Henry, while prosecuting her voyage, was seized by a French privateer, and carried into the port of Mole St. Nicholas, where the cargo [*371]*was taken by M. de Noailles, the French commandant, for the use of the garrison. On the same day the master of the vessel received a written engagement from M. de Noailles to pay for the cargo in coffee, after which the vessel was unladen. The captain remained at the Mole in expectation of receiving payment, until the 29th of October, when he sailed in The John and Henry for Cape François, with an order on that place for payment in coffee. On the 4th of November she was seized by a British squadron then blockading Cape François, and condemned as prize. Cape François is not in the route to Port Republican, nor to any port in the Bite of Leogane; nor in the route to return from Mole St. Nicholas to the United States. The abandonment was made in December, on account of the capture by the French privateer. The declaration claims the amount of the policy in consequence of that capture. The judgment of the court below was for the defendant. The only question decided by this court was, whether the plaintiff had a right to abandon and recover as for a total loss. Harper, for the plaintiff. Martin, for the defendant. Alexander v. Baltimore Insurance Co. 4 C. MARSHALL, C. J., after stating the facts of the case, de- [373] livered the opinion of the court, as follows, namely: It has been decided in this court, that during the existence of such a detention as amounts to a technical total loss, the assured may abandon; but it has also been decided that the state of the fact must concur with the state of information to make this abandonment effectual. The technical total loss, therefore, occasioned by the capture and detention at Mole St. Nicholas, must have existed in point of fact in December, when this abandonment was tendered, or the plaintiff cannot succeed in this action. Previous to that time the vessel had been restored to the captain; all actual restraint had been taken off; and it does not appear that her ability to prosecute her voyage was in any degree impaired. But her cargo had been taken by Monsieur de Noailles, the commandant at Mole St. Nicholas, and had not been paid for. The restoration of the vessel, without the cargo, is said not to terminate the technical total loss of the vessel. The policy is upon the vessel alone, and contains no allusion to the cargo. Had she sailed in ballast, that circumstance would not have affected the policy. The underwriters [* 374 ] insure against the loss or any damage to the vessel, not against the loss or any damage to the cargo. They insure her ability to perform her voyage, not that she shall perform it. If, in such a case, a partial damage had been sustained by the cargo, no person would have considered the underwriters as liable for that partial damage; why, then, are they responsible for the total destruction of the cargo? It is said that by taking out the cargo the voyage is broken up. But the voyage of the vessel is not broken up; nor is the mercantile adventure destroyed from any default in the vessel. By this construction the underwriter of the vessel, who undertakes for the vessel only, is connected with the cargo, and made to undertake that the cargo shall reach the port of destination in a condition to answer the purposes of the assured. Yet of the cargo he knows nothing, nor does he make any inquiry respecting it. If it be true that the technical total loss was not terminated until the cargo was paid for, because the voyage was broken up, then the underwriters would have been compellable to pay the amount of the policy, although the vessel had returned in safety to the United States. To prosecute the voyage, it is said, had become useless, and, therefore, the engagement of the underwriters was forfeited, although this state of things was not produced by any fault of the vessel. If this be true, it would not be less true if, instead of proceeding to Cape François, The Henry and John had returned from Mole St. |