by John Marshall

“ The judgment of a Court of common law, or the decree of a Court of equity, would, under such circumstances, be re-examinable in a Court of common law, or a Court of equity; and no reason is discerned why the sentence of a Court of admiralty, under the same circumstances, should not be re-examinable in a Court of admiralty.
This reasoning is not at variance with the decision that the sentence of a foreign Court of admiralty, condemning a vessel or cargo as enemy property, is conclusive in an action against the underwriters on a policy in which the property is warranted to be neutral. ”

“ That contumacy, in reason and in justice, ought not to have prevented the District Court from looking into the testimony concerning proprietary interest in the vessel, so far as the rights of other Claimants depended on that interest. Nor is the Court informed of a legal principle which should have restrained the district judge from looking into this testimony. If we reason from analogy we find no principle adopted by the Courts of law or equity, which in its application to Courts of admiralty, would seem to subject one Claimant to injury from the contumacy of another. ”

“ If a cargo be innocently put on board in an enemy country, if at that time it be lawful to import it into the United States, the importation cannot be rendered unlawful by a detention occasioned, in the course of the voyage, either by the perils of the sea, or the act of the enemy, unless this effect be produced by some positive act of the legislature. ”

“ Whether the party be in the country at the time of the breaking out of the war, or goes there afterward is immaterial; in each case he is equally bound to countermand the voyage. The present case therefore is precisely that of the Rapid.
But N. J. Visscher was in England long after the Mary put into Waterford. He did not leave England till the 7th of September; the Mary arrived at Waterford in August. He knew that the vessel must remain there till the spring, and that she could not arrive in the United States until nearly a year after the declaration of war. ”

“ The judge could not close his eyes on this circumstance; nor could he, in common justice, subject the cargo, which was claimed according to the course of the Court, to the liabilities incurred by being imported in a hostile bottom. In the same cause, a fact, not controverted by one party, who does not appear, and therefore as to him taken for confessed, ought not, on that implied admission, to be brought to hear upon another who does appear, does controvert, and does disprove it. The owners of the cargo had no control over the owner of the vessel. ”

“ A judgment against one Defendant for the want of a plea, or a decree against one Defendant for want of an answer, does not prevent any other Defendant from contesting, so far as respects himself, the very fact which is admitted by the absent party. ”

“ If the sentence condemning the Mary did not technically preclude the owners of the cargo from asserting in the Court of admiralty her American character, the weight of the evidence on that point is to be fairly estimated.
In support of her American character, the documentary evidence is complete and unequivocal; and corroborative testimony is calculated to strengthen a belief in the verity of the register. In support of her hostile character the omission of the owner to file his claim is chiefly relied on. ”

“ Visscher, who held the bond, could not claim in his own name, for it has been decided that such a lien on the ship will not support a claim, and he could not use the name of the owner without his consent, which he would certainly not give to impose a liability on himself. It was his interest to make it a total loss. A sentence of condemnation founded upon the want of claim accounted for in such a manner, cannot surely be conclusive evidence that the ship was not bona fide owned by an American citizen. ”

“ This voyage unquestionably had its inception in consequence of that repeal. We think this case falls precisely within the principles decided in that of the Thomas Gibbons. But it is said that the deviation to Waterford makes it a new voyage. That this was a continuation of the voyage at the common law, is admitted; but not in a Court of prize. Why should there, in this respect, be a difference between the law merchant and the law of nations? We contend that the law of nations, being more enlarged, is less rigid than the law merchant. ”

“ The whole world, it is said, are parties in an admiralty cause; and, therefore, the whole world is bound by the decision. The reason on which this dictum stands will determine its extent. Every person may make himself a party, and appeal from the sentence; but notice of the controversy is necessary in order to become a party, and it is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. ”

“ With respect to itself no reason is perceived for yielding to them a further conclusiveness than is allowed to the judgments and decrees of Courts of common law and equity. They bind the subject matter as between parties and privies. ”

“ As to his obtaining a second British license, it was necessary; he could not leave Waterford without it. It was not a voluntary act. He acted under a vis major. The second license was only a renewal of the first; if he had authority to go at all, he might lawfully use the means. After his return to the United States, he did not apply for an American license because he was daily expecting the arrival of the Mary; besides he knew that she was protected by the president's instructions. ”

“ This is necessarily notice to all those who have any interest in the thing, and is reasonable because it is necessary, and because it is the part of common prudence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it. ”