The Nereide - 13 U.S. 388 (1815)
U.S. Supreme Court
The Nereide, 13 U.S. 9 Cranch 388 388 (1815)
13 U.S. (9 Cranch) 388
The stipulation in a treaty "that free ships shall make free goods" does not imply the converse proposition, that "enemy ships shall make enemy goods."
The treaty with Spain does not contain, either expressly or by implication, a stipulation that enemy ships shall make enemy goods.
A neutral may lawfully employ an armed belligerent vessel to transport his goods, and such goods do not lose their neutral character by the armament, nor by the resistance made by such vessel, provided the neutral do not aid in such armament or resistance, although he charter the whole vessel and be on board at the time of the resistance.
A merchant having a fixed residence and carrying on business at the place of his birth does not acquire a foreign commercial character by occasional visit to a foreign country.
The right of search grows out of and is auxiliary to the greater right of capture.
The rule that the goods of an enemy found in the vessel of a friend are prize of war and those of a friend found in the vessel of an enemy are to be restored is a part of the law of nations, and has been fully and unequivocally recognized by the United States.
The principle of retaliation upon the subjects of a foreign state for its unjust proceedings towards our citizens is a political, not a judicial, measure. It is for the consideration of the government, but it is not a rule of decision in courts of justice.
This was an appeal by Manuel Pinto from the sentence of the Circuit Court for the District of New York affirming pro forma the sentence of the district court which condemned that part of the cargo which was claimed by him.
The facts of the case are thus stated by THE CHIEF JUSTICE in delivering the opinion of the court
Manuel Pinto, a native of Buenos Ayres, being in London, on 26 August, 1813, entered into a contract with John Drinkald, owner of the ship Nereide, whereof William Bennet was master, whereby the said Drinkald let to the said Pinto the said vessel to freight for a voyage to Buenos Ayres and back again to London on the conditions mentioned in the charter party. The owner covenanted that the said vessel, being in all respects seaworthy, well manned, victualed, equipped, provided, and furnished with all things needful for such a vessel, should take on board a cargo to be provided for her, that the master should sign the customary bills of lading, and that the said ship being laden and dispatched, should join and sail with the first convoy that should depart from Great Britain for Buenos Ayres, that on his arrival, the master should give notice thereof to the agents or assigns of the said freighter and make delivery of the cargo according to bills of lading; and that the said ship, being in all respects seaworthy, manned, &c., as before mentioned, should take and receive on board at Buenos Ayres all such lawful cargo as they should tender for that purpose, for which the master should sign the customary bills of lading, and the ship, being laden and dispatched, should sail and make the best of her way back to London, and on her arrival deliver her cargo according to the bills of lading. For unloading the outward and taking in the homeward cargo the owner agreed to allow 90 running days, and for unloading the return cargo 15 running days. The owner also agreed that the freighter and one other person whom he might appoint should have their passage without being chargeable therefor. In consideration of the premises, the freighter agreed to send or cause to be sent alongside of the ship such lawful goods as he might have to ship or could procure from others and dispatch her therewith in time to join and sail with the first convoy, and on her arrival at Buenos Ayres to receive the cargo according to bills of lading, and afterwards to send along side of the ship a return cargo and dispatch her to London, and on her arrival receive the cargo according to bills of lading, and to pay freight as follows, viz., for the outward cargo £700, together with five percent primage, to be paid on signing the bills of lading, and for the homeward or return cargo at the rate mentioned in the charter party. He was also to advance the master at
Buenos Ayres such money as might be necessary for disbursements on the ship. It was provided that all the freight of the outward cargo, except on the goods belonging to the freighter, which should not exceed £400 should be received by the owner on the bills of lading being signed, and in case of the loss of the ship, such freight should be his property; but if she arrived safe back with a full cargo, then the freighter should be credited for the excess of the said freight over and above the sum of £700. A delay of 10 running days over and above the time stipulated is allowed the freighter, he paying for such demurrage at the rate of £10, 10s per day.
Under this contract a cargo, belonging in part to the freighter, in part to other inhabitants of Buenos Ayres and in part of British subjects, was taken on board the Nereide, and she sailed under convoy sometime in November, 1813.
Her license or passport, dated 16 November, states her to mount 10 guns and to be manned by 16 men.
The letter of instructions from the owner to the master is dated on 24 November, and contains this passage:
"Mr. Pinto is to advance you what money you require for ship's use at River Plate, and you will consider yourself as under his directions so far as the charter party requires."
On the voyage, the Nereide was separated from her convoy, and on 19 December, 1813, when in sight of Madeira, fell in with, and after an action of about fifteen minutes, was captured by the American privateer The Governor Tompkins. She was brought into the port of New York, where vessel and cargo were libeled, and the vessel and that part of the cargo which belonged to British subjects were condemned without a claim. That part of the cargo which belonged to Spaniards was claimed by Manuel Pinto, partly for himself and partners, residing in Buenos Ayres, and partly for the other owners residing in the same place. On the hearing, this part of the cargo was also condemned. An appeal was taken to the circuit court, where the sentence
of the district court was affirmed pro forma, and from that sentence an appeal has been prayed to this Court.