go this length, in swearing "that all the papers are

true,"

," and that this amounts to a verification of the property;—so he does, if you take that part of his deposition substantively, and apart from the reft; but looking to other parts, and finding, that when he is asked on the 12th interrogatory, what he knows or believes? (for he is examined to his belief,) he can depose nothing, and that he has no belief, it is impoffible to say that this man's depofition confirms the papers, in the manner in which it is neceffary that they should be fupported. It is faid there are other papers which fupply this defect,-the atteftations of the laders before the American Conful. What authority has an American Conful to adminifter an oath to Dutch fubjects? Such papers can hardly be taken as fworn documents, or if they were, they come only from the Dutch fhippers, the very persons who, if there is any fraud, have been the contrivers of it. Under fuch circumftances, Can it be reasonably or candidly addreffed to the Court to restore this cargo immediately and without farther proof?-This fhip goes under licence to a blockaded port, with a cargo addreffed to one fet of merchants only-here are various parcels for a variety of different perfons, the master evidently knowing nothing of the matter, and there being no proof but from the Dutch laders; I must fay that I am not fatisfied; the rules of the Court require farther proof, and I feel that it is a rule which I could not relax without relaxing the effential demands of justice.

Arnold prayed freight and expences for the ship to be a charge on the cargo.

Court.

The

JUNO.

July 25th,

$799.

The JUNO.

July 25th,

1799.

Court. I am of opinion that the master is entitled to his freight and expences on two grounds; if he had taken no cargo, he would not have been liable to be stopped; and fecondly, having received this cargo fo improperly documented on board, he would have been liable to have been stopped on that account, although he had not been coming from a blockaded port.

Freight and expences given, and to be a charge on the cargo.

July 19th, 1799.

Breach of block

ade of Amfter

dam. Excufe,

THE HURTIGE HANE, DAHL Master.

THIS

HIS was a cafe of a Danifh fhip taken in the act of entering the Texel, April 1799, having failed afferted diftrefs; from a port in Barbary, with an afferted original destination to Hamburgh, February 15, 1799.

how received.

It was prayed that the Court would permit a protest of the master to be read, in which it would appear, that he was under the neceffity of going into the Texel from diftrefs and want of water; and that his crew rose upon him, and infifted that he should go into fome Dutch port.

Court. This fhip was found in the act of entering the Texel, a fact by no means indifferent, but highly criminal, prima facie at least, and requiring a very fatisfactory explanation. It is ufual to set up the want of water and provifions as an excufe; and if I was to admit pretences of this fort, a blockade would be

nothing

Such pre

The

HURTIGE

nothing more than an idle ceremony.
tences are, in the first instance, extremely difcredited
on two grounds-that the fact is strongly against them,
and that the explanation is always dubious, and liable
to the imputation of coming from an interested
quarter. I am not deaf to the fair pretenfions of
human teftimony, but, at the fame time, I cannot shut
my fenses against the ordinary course of human con-
duct; I will not fay that cafes of neceffity may not
occur that would afford a fufficient justification; and
I add, that if the party can fhew that they were under
any great neceffity, and that, for four or five days
before, they could get into no other port but the
Texel, I would certainly admit fuch an excufe, so fup-
ported. But if they cannot do this, and unless it is
proved, that in coming up the Channel there was no
other port either English or French, but the interdicted
port of Amfterdam into which they could put, I fhall
reject the apology.

The proteft of the master, the mate and cook was admitted to be read, which fet forth, Their voyage to Saffee in November; that, during the time 'they lay there taking in a cargo, they suffered much

by bad weather, and were feveral times driven out to

fea; that on the 15th of February having completed their lading, the bad weather increasing,' they were obliged to cut their cable and proceed on their voyage, leaving the anchor buoy and 'cable behind them; that on the 25th the wind ' blew very hard with a heavy fea; that the fea broke C over their veffel, and forced the ring-bolts from out the deck, washed away the quarter-boards with two water casks, and did a great deal of other da< mage;

HANE.

July 19th,

1799.

The

HURTIGE
HANE.

July 19th,

1799,

· mage; that on the 16th day of March they met with another heavy gale of wind, which obliged them to lie to under their lower fails, that the forefail and fchooner fail were blown out of the ropes, and they were obliged to cut them away and • bend new ones; that the fea was fo great it made a free paffage over the veffel, which caufed her to

labour and strain very much, and fhe proved fo

leaky, they were obliged to keep the pump continually at work; that on the 21st day of March they ' moved the cargo to find out the leak which was at the bottom of the fhip near the foremast, and after 'cutting away the infide planks they fortunately found

and stopt the leak; that on the 23d they faw Scilly, and on the 28th paffed Dover, and next day the • weather was very bad with fnow and froft; that on the 2d of April they arrived off Yarmouth near the fands, the wind then blowing a hard gale at eaft; that they were obliged to fet all the fail the veffel 'could carry, in order to clear the fands; that on the

*

5th their topfail was blown away, and the wind was fo violent that they were obliged to cut away the jib, and the shrouds and deck were covered with fnow and ice, and it was with great difficulty they 'could work the veffel, and next day all the crew

came to the master and told him, as they were in • want of provisions and water, (they having been • under fhort allowance for fome time,) and the faid ‹ veffel wanted repairing, that they defired him to proceed to the nearest port, and if he did not they • would take the command from him; that he was • under the neceffity of complying with their request, and accordingly steered for Holland.”

Court.

Court.I have now heard the proof brought in,

and I am to determine whether it comes up to the teft which I have laid down, and to which I fhall certainly adhere, that nothing but an abfolute and unavoidable neceffity will justify the attempt to enter a blockaded port; confiderations of an inferior nature, fuch as the avoiding higher fees, or flight difficulties, will not be fufficient-nothing less than an unavoidable neceffity which admits of no compromife, and cannot be refisted, will be held by me to be a juftification of this offence.

The mafter fails under a knowledge of the blockade, being affected with the general notification of the preceding year: on the 28th of March they paffed Dover, on the 2d of April they were off Yarmouth; but although the protest is made to justify the master from barratry and the crew from mutiny, and does therefore, I must prefume, contain all facts neceffary for that purpose, I do not fee that it is stated that they were going into Yarmouth. If on the 3d of April there is fo much want of water and provifions as to compel them to go into the interdicted ports of the Texel, Why not go to the open and permitted port of Yarmouth on the 2d of April? It is not alledged that the discovery of fuch a want was first made on the 3d-on the next day, the weather becoming more violent, the crew came to the master and infifted on going into the nearest port on account of want of water and provifions; a third excufe is thrown in, that the ship wanted repair; but this is not mentioned in the depofitions, and it appears not to have been a very preffing want, as the ship came afterwards back to England without difficulty; they infifted on going into the

nearest

127

The HURTIGE HANE.

July 19th, 1.799.