A case of hostile trade not excused by the necessity of
obtaining funds to pay the expenses of the ship nor by the opinion
of an American minister, expressed to the master, that by
undertaking the voyage he would violate no law of the United
States.
If an American vessel be captured on a circuitous voyage to the
United States, in a former part of which voyage she has been guilty
of conduct subjecting her to confiscation, though at the time of
capture she is committing no illegal act, she must be
condemned.
Where the termini of a voyage are already fixed, the continuity
of such voyage cannot be broken by a voluntary deviation of the
master for the purpose of carrying on an intermediate trade.
A capture as prize of war may lawfully be made within the
territorial limits of the United States at any place below water
mark.
This was the case of a vessel, the
Joseph, owned by
American citizens, captured by the privateer
Fame on 16
July, 1813. The
Joseph sailed from Boston with a cargo on
freight on or about 6 April, 1812, on a voyage to Liverpool and the
north of Europe and thence directly or indirectly to the United
States. She arrived in Liverpool and there discharged her cargo,
and, on 30 June following, with another cargo, of mahogany, taken
in at Hull, sailed for St. Petersburg under the protection of a
British license granted on 8 June, 1812, authorizing
Page 12 U. S. 452
the export of mahogany to St. Petersburg, and the importation of
a return cargo to England. The brig arrived at St. Petersburg, and
there received news of the war between the United States and Great
Britain. About 20 October, 1812, she sailed from St. Petersburg for
London with a cargo of hemp and iron on freight, consigned to
merchants in London, and having wintered in Sweden in the spring of
1813, she sailed, under convoy instructions from the British ship
Ranger, for London, where she arrived and delivered her
cargo. About 29 May, she sailed for the United States in ballast
under a British license, and was captured on 16 July at no great
distance from Boston Lighthouse. She was sent into the port of
Salem for adjudication as prize.
In the District Court of Massachusetts, the claim of the owners,
Messrs. Dall and Vose, was rejected and the property condemned to
the United States. From this decree the captors and claimants
appealed.
In the circuit court, the property was condemned to the captors.
From this decree the claimants and the United States appealed.
It was contended on the part of the claimants
1. That it was lawful, in June, 1812 (before the war), to take
the license to go from England to the north of Europe and to bring
back a cargo to England.
2. That the taking a freight from the north of Europe to England
was from necessity to obtain funds to pay the debts of the ship,
the master not having been able to sell the cargo at St. Petersburg
for any price.
3. That the opinion of the minister of the United States at St.
Petersburg, who told the captain of the
Joseph that there
was no law against his returning to England under the protection of
his license, and who also sent dispatches by the
Joseph to
the government of the United States, though he knew of the
intention to return to England and thence to the United States, was
in effect a license, especially as to the claim of the United
States.
Page 12 U. S. 453
4. That there was no trade with the enemy, but with neutrals
only, the freight having been taken on neutral account in a neutral
territory and delivered to a neutral house in Great Britain.
5. That if any offense was committed, it was completed upon the
delivery of the freight in Great Britain, and that therefore the
vessel was not liable to capture or seizure on that account in a
subsequent voyage from Great Britain to the United States.
6. That if she was liable to seizure for having adopted the
character of an enemy vessel by any act contrary to the allegiance
of the owners, yet she was not to be condemned as prize to the
captors, as she was voluntarily returning to the United States and
her port of discharge, and had actually arrived within the District
of Massachusetts. That the capture therefore was not the occasion
of her being brought in, so that if she was liable at all, even as
enemies' property, the condemnation must be to the United States as
a
droit of admiralty. But
7. That the vessel was not liable to be condemned to the United
States, because the declaration of war was in effect an invitation,
if not a command, to the citizens of the United States abroad at
the time to return home, and the law allowed a reasonable time and
way to effect that return.
Page 12 U. S. 454
WASHINGTON, J. after stating the facts of the case, delivered
the following opinion of the Court:
After the decision of this Court in the cases of the
Rapid and of the ship
Alexander, it is not to be
contended that the sailing with a cargo on freight from St.
Petersburg to London after a full knowledge of the war did not
amount to such a trading with the enemy as to have subjected both
the vessel and cargo to condemnation as prize of war had she been
captured whilst proceeding on that voyage. The alleged necessity of
undertaking that voyage to enable the master out of the freight to
discharge his expenses at St. Petersburg, countenanced, as the
master declares, by the opinion of our minister at St. Petersburg
that by undertaking such a voyage he would violate no law of the
United States, although these considerations, if founded in truth,
present a case of peculiar hardship, yet they afford no legal
excuse which it is competent to this Court to admit as the basis of
its decision.
See the Hoop, 1 Rob.
Potts V. Bell,
8 T.R.
The counsel for the claimants seemed to be aware of the
insufficiency of this ground, and applied their strength to show
that the vessel was not taken
in delicto, having finished
the offensive voyage in which she was engaged at London and being
captured on her return home and in ballast. It is not denied that
if she be taken during the same voyage in which the offense was
committed, though after it was committed, she is considered as
being still
in delicto and subject to confiscation, but it
is contended that her voyage ended at London, and that she was on
her return embarked on a new voyage. This position is directly
contrary to the facts in the case. The voyage was an entire one
from the United States to England, thence to the north of
Page 12 U. S. 455
Europe, and thence directly or indirectly to the United States.
Even admit that the outward and homeward voyages could be separated
so as to render them two distinct voyages, which is not conceded,
still it cannot be denied that the termini of the homeward voyage
were St. Petersburg and the United States. The continuity of such a
voyage cannot be broken by voluntary deviation of the master for
the purpose of carrying on an intermediate trade. That the going
from St. Petersburg to London was not undertaken as a new voyage is
admitted by the claimants, who allege that it was undertaken as
subsidiary to their voyage to the United States. It was, in short,
a voyage from St. Petersburg to the United States by the way of
London, and consequently the vessel, during any part of that
voyage, if seized for conduct subjecting her to confiscation as
prize of war, was seized
in delicto.
Another objection relied upon by the claimants is that this
vessel was captured within the territorial limits of the United
States. The fact upon which this objection is raised is not clearly
established one way or the other. But admit it to be as contended
for by the claimants, the law is nevertheless against them. The
commission granted to privateers authorized them to seize and take
any British vessels found within the jurisdictional limits of the
United States or elsewhere on the high seas and to bring them in
for adjudication, and also to detain, seize, and take all vessels
and effects, to whomsoever belonging, which shall be liable thereto
according to the law of nations and the rights of the United
States, as prize of war. The first instructions given by the
President to the private armed vessels of the United States define
the high seas, referred to in the commission, to extend to low
water mark, with the exception of the space of one league, or three
miles, from the shore of countries at peace with Great Britain or
the United States. The general expressions of the commission,
explained by these instructions and containing no exception but in
relation to friendly powers, prove incontestably that all captures
as prize of war may lawfully be made within the territorial limits
of the United States at any place below low water mark.
The Court is also of opinion that there is no weight
Page 12 U. S. 456
in another objection made by the claimants that this vessel was
on her way and near to an American port at the time she was
captured. The right of the captor to the property which he may
seize as prize of war is derived under his commission, which is
general and unqualified as to place and circumstances, and not from
any peculiar merit which he may claim in any particular case. It is
not for him to know whether a vessel which has offended against the
law of nations, and is apparently destined to a port of the United
States, will certainly enter the port, and certainly he is bound by
no law to forego the opportunity which chance or his own vigilance
may have presented to him to acquire property which, under his
commission, he is authorized to appropriate to himself.
Decree affirmed.
