UNITED STATES SUPREME COURT DECISIONS ON-LINE

This was an action against an Underwriter on a Policy of Insurance upon the ship Mount Vernon, warranted to be American property. The ship was captured by a French Privateer, carried into Porto Rico, and there condemned as prize. The cause was tried at the present Term; and Shippen, Justice, delivered the following charge, in which all the material facts and arguments were, substantially, set forth*.

Shippen, Justice.

On this Policy, the assured has engaged to prove in any Court of Pennsylvania, that the Mount Vernon was American property; and it is, also, incumbent on him to prove, that the ship sailed upon the voyage insured; that she has been captured, and condemned. On the question of property, the American Register was produced, which contains

Page 3 U.S. 491, 492

the oath of the Plaintiff, an American Citizen, that he was the sole owner of the Mount Vernon; and on the other points, there is full proof of the sailing, capture, and condemnation of the ship. She is not, however, condemned by the final decree as British property; nor, indeed, are any of the five causes assigned in the proceedings, legitimate causes of condemnation.

The Plaintiff was disposed, on general principles, to leave his cause on this evidence; but, in order to repel the Defendant's allegation, that the property of the ship, though apparently American, was, in reality, British, a variety of facts have been adduced, to explain the nature of a transaction, which occured between him and Mr. Dunkerson, in relation to a sale and transfer of the Mount Vernon. The result seems, briefly, to be this: Mr. Dunkerson was an English gentleman, who came hither with a view to settle; and, in order to manifest his intention, took an oath of allegiance to the state of Pennsylvania, though he had not been long enough in the country to entitle himself to naturalization, under the act of Congress. Contemplating a circuitous voyage from America to England, and thence to the East Indies, he applied to Messrs. Willings & Francis to procure a ship for him; and those gentlemen agreed absolutely with the Plaintiff for the purchase of the Mount Vernon, the bill of sale being made out by him, and sent to them, upon terms of payment precisely ascertained. It then, however, occurred to Mr. Dunkerson, that as he had not yet acquired the rights of American citizenship, he could not enjoy the advantages, which he proposed to derive from his projected voyage. For, the trade from England to the East Indies is, by the law of that kingdom, a monopoly; no British subject can, individually, embark in it, without incurring a forfeiture of his vessel and cargoe; though it has recently been adjudged in England, that an American citizen is entitled to carry on the trade, by virtue of express stipulations in the treaty of amity and commerce between the United States and Great Britain. Hence, it was deemed necessary, to enter upon another operation; the bill of sale was sent back; and a new contract was formed between the parties upon these principles: that the Plaintiff should remain the owner of the ship, and as such retain the register, and make the insurance; that she should, however, be delivered to Mr. Dunkerson, or his agents, and that Messrs. Willings & Francis should procure a freight for her on Mr. Dunkerson's account; that the Plaintiff should empower Mr. Skirrow (a gentleman who failed as a passenger in her) to assign, and transfer the ship to Mr. Dunkerson in England, on the 1st of September ensuing, at which time Mr. Dunkerson would be duly naturalized as an American Citizen; [3 U.S. 491, 493]

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