The Friendschaft - 16 U.S. 14 (1818)
U.S. Supreme Court
The Friendschaft, 16 U.S. 14 (1818)
16 U.S. 14*
Informal and imperfect proceedings in the district court corrected and explained in the circuit court.
A bill of lading consigning the goods to a neutral but unaccompanied by an invoice or letter of advice, is not sufficient evidence to entitle the claimant to restitution, but is sufficient to lay a foundation for the introduction of further proof.
The fact of invoices and letters of advice not being found on board, may induce a suspicion that papers have been spoliated. But even if it were proved that an enemy master, carrying a cargo chiefly hostile, had thrown papers overboard, a neutral claimant to whom no fraud is imputable ought not thereby to be precluded from further proof.
The native character does not revert, by a mere return to his native country of a merchant who is domiciled in a neutral country at the time of capture, who afterwards leaves his commercial establishment in the neutral country to be conducted by his clerks in his absence, who visits his native country merely on mercantile business and intends to return to his adopted country. Under these circumstances the neutral domicile still continues.
British subjects resident in Portugal, though entitled to great privileges, do not retain their native character, but acquire that of the country where they reside and carry on their trade.
The brig Friendschaft was captured on a voyage from London to Lisbon by the privateer Herald and brought into Cape Fear in North Carolina, where the vessel and cargo were libeled in July, 1814, as prize of war. The commercial agent of his Royal Highness the Prince Regent of Portugal interposed a claim to several packages, parts of the said cargo, on behalf of the respective owners, whom he averred to be Portuguese subjects and merchants residing in Portugal. The cargo consisted of many different shipments. Most of them were accompanied with bills of lading directing a delivery to shipper or order. Of these a few were specially endorsed. Generally, however, they were without endorsements or with blank endorsements only. A few shipments were accompanied with bills of lading deliverable to persons in Lisbon especially named in the bills. Very few were accompanied with letters or invoices. These, it was alleged in the claim, had probably been sent by the regular packet.
In August, 1814, the district court pronounced its
sentence condemning as prize of war "all that part of the cargo for which no claim had been put in" and
"all that part of the cargo which was shipped, as evidence by bills of lading, either without endorsement or with blank endorsements, and not accompanied by letter or invoice, viz., ____,"
and that part appearing by the bill of lading to consist of forty bales of goods shipped by Moreira, Vieira, and Machado. Further proof was ordered with respect to the residue of the cargo and the vessel.
From this sentence the claimants appealed to the circuit court. That court, in May, 1815, dismissed so much of the appeal as respected the brig, and that part of the cargo in respect to which further proof was ordered, as having been improvidently allowed before a final sentence, and affirmed the residue of the decree except in regard to the forty bales shipped by Moreira, Vieira, and Machado, with respect to which further proof was directed to establish the right of Francis Jose Moreira to restitution of one-third part thereof.
In April, 1816, further proof was exhibited to the district court in support of the claim for the parts of the cargo comprehended in the bills of lading numbered 108, 109, 141, 122, and 118, which bills being deliverable to merchants residing in Lisbon, whose names were expressed therein, were not endorsed. The further proof was deemed sufficient, and restitution was ordered. The vessel and the residue of the cargo were condemned as prize of war.
From so much of this sentence as awarded restitution
the captors appealed, and in May, 1816, the circuit court decreed as follows:
"This court being of opinion that the former sentence of the district court, affirmed by the sentence of this court rendered in May term in the year 1815, having been left imperfect by omitting to recite the particular claims intended to be involved in the condemnation pronounced in the district court in terms of general description, and being also of opinion that the words"
"all that part of the cargo which was shipped as evidenced, by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice"
"could be intended for those bills only which were to shipper or order, and not to those addressed to consignees named in the bill itself, is of opinion that there is no error in the sentence of the district court, and doth affirm the same."
From this decree the captors appealed to this Court. On the interposition of this appeal, the circuit court ordered that Joseph Winn, a British born subject, resident in Portugal, in whose behalf a claim was filed to No. 118, should be permitted to offer further proof to the Supreme Court, to be admitted or rejected by that Court.