ERROR to the circuit court for the district of Pennsylvania, in an action of debt upon an embargo bond, dated December 29, 1807, the condition of which was, to reland certain goods in some port of the United States, " the dangers of the seas only excepted." The vessel on board of which the goods were laden, cleared out and sailed from Philadelphia, for East Portland, in the district of Maine, but, having encountered severe and tempestuous weather; her crew disabled in a great degree, she was obliged, in order to escape from the danger of Nantucket Shoals, to change her course, and to endeavour to gain the port of Charleston. The weather and the winds, however, were so severe and adverse that she could not make Charleston, nor any other port of the United States, and was obliged to bear away for the West Indies to obtain relief. She arrived at Porto Rico in distress. The governor ordered the cargo to be landed and sold, with which order the captain was obliged to comply, and did land and sell the same. She could not leave the island without considerable repairs, which were accordingly made.
The court below instructed the jury that these facts, if believed by them, were, upon the whole case, sufficient to bar the United States of their action. The verdict and judgment were accordingly for the defendants, and the United States sued out a writ of error.
The bond was taken in pursuance of the directions of the act of 22d of December, 1807, usually called the embargo act, ( vol. 9. p. 7.) and before any of the supplemental acts on that subject were passed.
The third section of the act of March 12, 1808, ( vol. 9. p. 71) provided that in every case where a bond had been given under the act of 22d of December, 1807, conditioned to reland the goods, c. the parties should, within four months after the date of the same, produce to the collector a certificate of the relanding, c. on failure whereof the bond should be put in suit, and judgment should be given against the defendants, "unless proof shall be produced of such relanding, or of loss by sea, or other unavoidable accident."
The seventh section of the act of January 9, 1809, ( vol. 9. p. 190.) usually called the enforcing act, provides that in all cases where, under the act of 22d of December, 1807, a bond has been given to reland, c. the parties shall, within two months after the date of the same, produce to the collector, a certificate of the relanding of the goods from the collector of the proper port; on failure whereof the bond shall be put in suit, and judgment shall be given against the defendants, "unless proof shall be given of such relanding, or of loss of the vessel at sea. But neither capture, distress, or any other accident whatever, shall be pleaded or given in evidence in any such suit, unless such capture shall be expressly proved to have been hostile; and such distress or accident occasioned by no negligence or deviation, nor unless such vessel shall have been, from the commencement of the voyage, wholly navigated by a master, mate or mates, mariners and crew, all of whom shall be citizens of the United States, c. c.
MARSHALL, Ch. J. delivered the opinion of the court as follows:
This suit was instituted on a bond taken in pursuance of the original embargo act, with a condition that the cargo of the schooner Mary, a sea-letter vessel, should be relanded in the port of East Portland, or some other port of the United States, " the dangers of the seas only excepted."
Her cargo was not relanded within the United States, but was carried to Porto Rico and sold. The defendants allege that they were driven by stress of weather into Porto Rico, where the cargo was landed by order of the government; and they insist that the case is within the exception contained in the condition of the bond. The circuit court instructed the jury that, if they believed the testimony, it was sufficient in law, to bar the action. To this opinion the counsel for the United States excepted; and its propriety is now to be considered.
The improbability of the allegations made by the defendants is no longer the subject of inquiry. The jury have verified them, and the court must receive them as true. The testimony is, that the Mary was driven by tempestuous weather into a foreign port. That, while prosecuting her voyage, she encountered weather which so disabled both the crew and vessel, and put her in such a situation that, to escape Nantucket Shoals, "she was obliged to change her course, and endeavour to gain a southern port." She changed her course and bore for Charleston. But such was the condition of the crew and of the vessel, and so severe and so adverse were the winds, that she " could not make Charleston, nor any other port of the United States, and was obliged to bear away for the West Indies, to obtain relief."
The vessel, then, was driven into Porto Rico by the cause which forms the exception in the condition of the bond, and if the cargo had been lost at the mouth of the harbour, instead of entering the port, all would admit that the penalty of the bond had hot been incurred. But it is contended that the dangers of the seas terminated on entering the port, and that no sufficient cause is shown for not bringing back the cargo to the United States.
The case states that the governor of Porto Rico issued an order that the cargo should be landed and sold, "with which order the captain was obliged to comply."
As this case is stated, the Mary was driven into Porto Rico, and the sale of her cargo, while there, was inevitable. The dangers of the sea placed her in a situation which put it out of the power of the owners to reland her cargo within the United States. The obligors, then, were prevented, by the dangers of the seas, from complying with the condition of the bond; for an effect, which proceeds inevitably, and of absolute necessity from a specified cause, must be ascribed to that cause.
It is the unanimous opinion of this court that there is no error in the proceedings of the circuit court, and that the judgment be affirmed.