Opinion
JULY TERM, 1788.
Levy, Ingersoll and Sergeant for the Plaintiff — Lewis and Wilcocks for the Defendants.
THIS was an action upon a Policy of Insurance on the Brig La Catiche; and the circumstances of the cafe, as far as they respect the decision of the Court, were these: —
The Brig having sustained considerable damage by a storm, the Captain, who was also a part owner, was compelled to deviate from his proper voyage, and, accordingly, bore away for Cape Francois. When he arrived there, on the 28 th day of August, 1784, he delivered a procês verbal (which had been drawn up at fea. recently after the storm) into the Admiralty, in order to obtain a survey of the vessel; but this instrument was merely a relation of facts, unattested by the oath of the Captain, or of any of the Mariners, who had subscribed it as witnesses. A copy of it being afterwards, however, brought to Philadelphia, the Captain alone, on the 4 th day of December 1784, went before a Notary Public of this city, and in form of a protest, swore to the authenticity of the copy, and the truth of its contents.
When the present action was instituted, a commission issued to obtain a transcript of the proceedings in the Admiralty of Cape Francois; and the procês verbal being returned with the other official documents, certified by the Judge under the seal 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 side, that the procês verbal, taken by itself, was not admissible as evidence, because it had not been rendered upon oath; and that, even connecting it with the subsequent protest at Philadelphia, it ought, nevertheless, to be rejected; because no protest is valid to this purpose, that has not been made at the first port in which the Captain arrives after a misfortune has happened to his vessel. See Westcote 432. 1 Mag. 87. Beawes 140.
The Plaintiff's counsel, in reply, observed, that although the strict formalities required in this country, had not been pursued, yet if the proceeding was conformably to the lex loci it ought to be received. They contended, therefore, that as the procês verbal was lodged in a competent office, and is duly certified under the seal of the Admiralty, this Court, in respect to a foreign jurisdiction, is bound to presume that it was regularly taken according to the laws of France. Besides, the rule in regard to all exemplifications, rendered it necessary that the whole record should be transmitted and certified; and, whatever may be its weight and effect, the whole ought also to be submitted to the Jury. See Valinés Ord. de Fr. 190. Doug. 554. Parke's Insurance 404. Bull. N.P. 227.
BY THE COURT: — Though we had some doubt, at first, whether, connected with the subsequent protest, the procês verbal might not be given in evidence, yet we are now convinced that its admission would be highly improper. The declaration of any man, delivered either in a Pagan, or Christian, Court, without the solemnity of an oath, is not evidence of the fact asserted even where the witness is subject to no biass; much less, where he is immediately interested; as the Captain was in the present instance, being a partowner of the vessel.
The case in Doug. 554. does not apply to that before us; nor can the procês verbal be considered as a judicial proceeding. With respect to the argument, that it is a part of the exemplification, it is sufficient to observe, that if a Deed of any kind had been left with the Judge of the Admiralty, he would, probably, have certified it in the same manner, without meaning, in any degree, to establish the validity, or to affect the legal operation of the instrument.
The reading of the procês verbal was accordingly over-ruled.
After stating some other points in the cause, the Plaintiff's counsel offered to read the protest made in Philadelphia, on the 4th day of December 1784; to which their opponents likewise objected for the reason already mentioned, that it was not made at the first Port, and also on account of the length of time which had intervened.
BY THE COURT: — The question now before us, is, in fact, whether a protest must be made in the first Port at which the Captain arrives after his vessel 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 discussed on general principles.
We think, however, that to admit the evidence of a Captain of a vessel in excuse of his own conduct, the greatest precaution should be used, and every possible restriction imposed. Hence, it is the rule in France, that the protest shall 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 attestation of a majority of the crew. See Valines Ord. de Fr. 190. 1 Magens 160. The reason is evidently to prevent any subsequent collusion; and we cannot but think that it is the safest as well as the most certain mode of proceeding. If, indeed, any particular circumstances should render it impossible to comply, they will always form an exception to the rule; but, as that is not pretended on the present occasion, we are unanimous in rejecting the evidence.
As soon as this decision was pronounced, the Plaintiff voluntarily suffered a Nonsuit.