The Merrimack
12 U.S. 317 (1814)

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U.S. Supreme Court

The Merrimack, 12 U.S. 8 Cranch 317 317 (1814)

The Merrimack

12 U.S. (8 Cranch) 317


Goods purchased by British merchants before the war between the United States and Great Britain in pursuance of orders from American citizens, shipped to the agent of the British merchants in the United States, also an American citizen, "on account and risk of an American citizen," and no circumstances of fraud or unfairness appearing in the transaction, were vested in the American citizens at the time of the shipment, and are not liable to condemnation, although the vessel sailed from England after the declaration of war was known there. Restitution.

But if goods be purchased as above, though the accompanying invoices, bills of lading and letters be addressed by the British consignors to the American citizens for whom the purchase was made, and all concur to show the property to be in them, yet if these documents are enclosed in a letter from the consignors to their agent in the United States, though an American citizen, directing him not to deliver the goods in case of the existence of certain circumstances, nor until he should have received payment from the consignees in cash, the property in the said goods continued in the British consignors at the time of capture. Condemnation.

Goods by the same ship, so purchased and consigned to the agent of the consignors, being an American citizen, in whose name also the bill of lading is made out, but the bill of parcels and invoice in the name of the American merchants for whom the purchase was made, the shipment also being expressed to be on the account, though goods are spoken of in the letter of the consignee as British property, bested in the American merchants at the time of shipment.

The circumstance that the goods continue during the whole voyage at the risk of the shippers is immaterial.

The following are the material facts of the case:

The ship Merrimack, owned by citizens of the United States, sailed from Liverpool for Baltimore a few days after the declaration of war by the United States against Great Britain was known in that country, having on board a cargo of goods shipped by British subjects and consigned to citizens of the United States. On 25 October, 1812, she was captured in the Chesapeake Bay between Annapolis and Baltimore by the private armed vessel Rossie, Joshua Barney, commander.

The goods, being libeled as prize in the District

Page 12 U. S. 318

Court of Maryland, were severally claimed by sundry citizens of the United States.

The claimants were:

1. William and Joseph Wilkins, merchants of Baltimore, claimed the goods contained in eleven cases and one bale marked "W.J.W."

These goods were made up for them, in pursuance of their orders, before the war was known in Great Britain, by a manufacturing company, one member of which, Thomas Leich, resided in Leicester in Great Britain, and the other, Edward Harris was an American citizen residing in the United States.

The bill of parcels was in the name of Messrs. William and Joseph Wilkins. This paper also served for an invoice, and there was no other on board for these goods.

The bill of lading was in the name of Edward Harris, who was the consignee.

The goods were accompanied by a letter from Thomas Leich to Edward Harris dated Leicester, 29 July, 1812, in which he says

"With this you will receive bill of lading of 11 cases of worsted and cotton hosiery for Messrs. W. & J. Wilkins, Baltimore, and with insurance to �892. 5. It is a large sum, but, from what I can learn, they are very respectable. Indeed, Mr. Brown of the house of Chancellor & Co. came with him, and seemed almost offended that did not send the cotton hose he ordered before, and said he would guarantee the amount of the worsted goods, therefore must have offended him if did not comply. Have not sent but about half the cotton goods they ordered, . . . informed them that we thought it necessary to secure our property to ship all to you, as you could prove that they were American property by making affidavit they are bona fide your property. As our orders in council are repealed, hope your government will be amicably inclined as well, and

Page 12 U. S. 319

that trade will be on regular footing again, but for fear there should be some other points in dispute, I shall send you and our friends through your hands all the goods prepared for your market which you'll perceive is very large. . . . Hope you will approve of my sending all, and as there may have been some alterations in some of your friends, shipping them to you gives the power of keeping back to you."

There was also on board a letter dated Leicester, 22 July, 1812, signed Harris Leich & Co. and addressed to Messrs. Wm. & Joseph Wilkins, merchants of Baltimore, in which they say,

"The repeal of the orders in council having been agreed on by our government, we have availed ourselves of the opportunity of sending the greater part of your spring and fall orders. . . . As we are not certain that your government will protect British property, we have thought it right to ship all ours under cover to Mr. Harris who can claim as his own bona fide property, and he, being a citizen of the United States, thought proper to use every precaution, having received some unpleasant accounts about your government's having agreed on war with this country, which we hope will not be the case."

2. McKean & Woodland, citizens of the United States, claim sundry parcels of goods, part of the same cargo, as their property.

These goods were purchased by Baily, Eaton & Brown, merchants of Sheffield, in pursuance of orders from the claimants. They were shipped to Robert Holladay, also an American citizen. The bill of lading was to Robert Holladay "on account and risk of an American citizen." The invoice was also headed to Robert Holladay.

A letter from Baily, Eaton & Brown to Samuel McKean, dated 11 July, 1812, says

"A few days ago we received a letter from Mr. Rogerson, of New York, informing us that the partnership of Messrs. McKean & Woodland was dissolved, but he does not say whether you or Mr. Woodland continue the business, or whether both of you decline it. We have purchased about �3,000 sterling of goods by order of

Page 12 U. S. 320

the late firm, and on their account, most of which have been purchased and paid for by us from fifteen to eighteen months ago, and have been on our hands waiting for shipment. We have this day given orders to our shipper at Liverpool to put them on board a good American vessel sailing for your port with a British license, but from the uncertainty we are in respecting the particulars of your dissolution of partnership, and in fact not knowing whether to consign them to you or Mr. Woodland, we have finally concluded to consign them to Mr. Holladay, with whom you will be pleased to make the necessary arrangements respecting them. . . . We have addressed the invoice to Mr. Holladay to your care, and directly on receiving it, if he should not be in Baltimore, you will please advise him of its arrival."

The residue of the letter contains their reasons for hoping that Mr. McKean will not insist on the usual credit, but will remit immediately on receiving the goods. This request is founded on their having been so long in advance for the purchase of them.

Messrs. Baily, Eaton & Brown addressed a letter to Mr. Holladay, dated 10 July, 1812, in which they say, "Enclosed you will receive invoices of sundry goods for Messrs. McKean & Woodland, which complete their orders." They then assign the same reason for shipping the goods to Mr. Holladay that is given in their letter to Mr. McKean, and after directing him to arrange with Mr. McKean, add

"We cannot view this consignment at all in the light of an intercepted shipment coming within the meaning of the articles of agreement between you and us."

This letter also contained a proposition for immediate remittance founded on the time which had elapsed since the goods were purchased. This proposition, they say, is made to all their friends in the United States, and they hope none will refuse to accede to it. "But," they add, "in thus acting, we have left the matter to the free and unbiased will of our friends, and they are certainly upon honor."

3. Messrs. Kimmel & Albert, merchants of Baltimore, claimed seven packages of goods on board the

Page 12 U. S. 321

Merrimack, which were purchased in pursuance of their orders by Baily, Eaton & Baily. The invoice, bill of lading, and letters, addressed (one by the consignors and the other by the shipper, who was their agent) to Messrs. Kimmel & Albert, concur in showing property in the claimants. But all these documents and letters are enclosed in a letter of 5 August, 1812, written by Baily, Eaton & Baily to Samuel McKean. In this letter, the writers refer to a former letter of 3 July, in which they informed Mr. McKean that they should, on the recommendation of their general agent, Mr. Hollaway, enclose their invoices and bills of lading for the adjacent country to him, and requested him to make inquiries into the circumstances of their correspondents, and be regulated, as to putting the letters, &c., into the post office so as to reach the persons to whom they might be addressed, by the result of those inquiries. Messrs. Baily, Eaton & Baily indulge the hope that the repeal of the British orders in council will restore peace between the two countries, in which event McKean is still to be governed by their letter of the 3d of July. "But," they add,

"if, when you receive our invoices and bills of lading, a state of war should really continue, it will be proper not to deliver these goods until you have received the amount of the invoices from the consignees, in cash."

4. John H. Browning & Co. was also claimant of part of the cargo.

This claim stood on precisely the same principles with that of Kimmel & Albert. The documents given in evidence were in effect the same, and were enclosed in the same letter from Baily, Eaton & Baily to Samuel McKean.

It was contended by the captors in the district court that from the papers and letters on board, it appeared that the goods were not sold and delivered in England, so as to vest the property in the claimants, but were sent to the agents of the shippers in the United States, to be delivered or not according to their discretion. Consequently that the property was not changed, and the goods therefore were liable to capture as British property.

Page 12 U. S. 322

Restitution was decreed in the district court, and the decree was affirmed in the circuit court. An appeal was taken to this Court, where the captors pray condemnation on the same grounds as in the courts below.

Page 12 U. S. 327

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