The Antonio Johanna
14 U.S. 159 (1816)

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U.S. Supreme Court

The Antonio Johanna, 14 U.S. 1 Wheat. 159 159 (1816)

The Antonio Johanna

14 U.S. (1 Wheat.) 159

APPEAL FROM THE CIRCUIT COURT FOR

THE DISTRICT OF NORTH CAROLINA

Syllabus

A neutral ship was chartered for a voyage from London to St. Michaels, thence to St. Petersburgh or any port in the Baltic and back to London, at the freight of 1,000 guineas. On her passage to St. Michaels, she was captured and brought into a port of the United States for adjudication. A part of the cargo was condemned and part restored. The freight was held to be chargeable upon the whole cargo, as well upon that part restored as upon that condemned.

Quaere whether in the above case more than a pro rata freight was due to the master?

This was the case of a Russian ship captured on 2 June, 1814, by the privateer Herald on a voyage from London to St. Michaels and brought into the port of Wilmington, N.C., for adjudication. The ship was chartered by Messrs. Burnet & Co., a mercantile firm at London, for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any port in the Baltic, and thence to return to London, at the stipulated freight of one thousand guineas. The ship and cargo were libeled as prize of war, and upon the hearing in the district court, that part of the cargo which was not claimed was condemned. The residue of the cargo, excepting one moiety of certain

Page 14 U. S. 160

packages claimed on behalf of Messrs. Ivens & Burnet, a mercantile firm at St. Michaels, was restored. The whole freight was decreed to be paid to the master, and charged exclusively upon the proceeds of the property condemned, and the moiety of the property restored to Messrs. Ivens & Burnet. From so much of this decree as respected the controversy between the captors and the claimants of the cargo an appeal was interposed to the circuit court, where the decree was affirmed, and the cause was brought by appeal from the latter decree to this Court.

Page 14 U. S. 167

STORY, J., delivered the opinion of the Court, and after stating the facts, proceeded as follows:

Upon the argument, no specific objection was taken to the restitution of any of the property claimed excepting that included in the claim of Messrs. Ivens & Burnet. This shipment was made by Messrs. Burnet & Co. of London, to Messrs. Ivens & Burnet of St. Michaels, and the invoices declare the goods to be by order, and for account and risk, of the latter gentlemen. It is contended in behalf of the

Page 14 U. S. 168

captors that both houses are composed of the same persons, viz., William S. Burnet, who is domiciled at London, and William Ivens, who is domiciled at St. Michaels, and that the documentary evidence and private correspondence show that the shipment was made on account of the hostile house. If the fact of the identity of the two houses were material to a decision of the cause, it might furnish a proper ground for an order for further proof. But admitting the fact to be as the captors contend, we are satisfied that it can be of no avail to them. It is clear, from the whole documentary evidence that this shipment was not made on the account and risk of the hostile house, but bona fide on the account and risk of the neutral house. It does not, therefore, present a case for the application of the principle that the property of a house of trade in the enemy's country is condemnable as prize, notwithstanding the neutral domicile of one of its partners. On the contrary, it presents a case for the application of the ordinary principle which subjects to confiscation jure belli the share of a partner in a neutral house where his own domicile is in a hostile country. And on this view the decision of the circuit court is entirely correct, and is consistent with the doctrines established in the cases cited at the argument.

The next inquiry is as to the freight decreed to the master. As no appeal was interposed to the decree of the district court allowing the whole freight for the whole voyage, the question whether more than a pro rata freight was due (a question which would otherwise have deserved grave consideration)

Page 14 U. S. 169

does not properly arise. The only discussion which can now be entertained is whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion that it was properly a charge upon the whole cargo. Although capture be deemed in the prize courts in many cases equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship having enemy's property on board is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in poenam to the neutral for the losses which he may sustain by a lawful exercise of belligerent rights. It is the misfortune of the neutral, and not the fault of the belligerent. By the capture, the captors are substituted in lieu of the original owners, and they take the property cum onere. They are therefore responsible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners succeeding to the former proprietors. So far the rule seems perfectly equitable, but to press it further and charge them with the freight of goods which they have never received or with the burden of a charter party into which they have never entered would be unreasonable in itself and inconsistent with the admitted principles of prize law. It might in a case of justifiable capture by the condemnation of a single bale of goods

Page 14 U. S. 170

lead the captors to their ruin with the stipulated freight of a whole cargo.

On the whole, we are all of opinion, that the decree of the circuit court ought to be affirmed except so far as it charges the freight upon the property condemned and the moiety claimed by Messrs. Ivens & Burnet, and as to this it ought to be reversed, and that the freight should be decreed to be a charge upon the whole cargo, to be paid by each parcel thereof in proportion to its value.

Decree affirmed, except as to the freight.

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