American property recaptured may be restored on payment of
salvage, although the libel prays condemnation of it as prize of
war, and does not claim salvage. Salvage is an incident to the
question of prize.
A test affidavit ought to state that the property, at the time
of shipment and also at the time of capture, did belong and will,
if restored, belong to the claimant, but an irregularity in this
respect is not fatal.
A test affidavit by an agent is not sufficient if the principal
be within the country and within a reasonable distance from the
court. But if test affidavits liable to such objections have been
acquiesced in by the parties in the courts below, the objections
will not prevail in this Court.
By the Act of 3 March, 1800, one-sixth part only is allowed to a
privateer for salvage upon the recapture of the cargo on board a
private armed vessel of the United States, although one-half be
allowed for the recapture of the vessel.
The property of persons domiciled in France (whether they be
Americans, Frenchmen, or foreigners) is good prize if recaptured
after being twenty-four hours in possession of the enemy, that
being the rule adopted in the French tribunals.
Further proof will be allowed by this Court where the national
character and proprietary interest of goods recaptured do not
distinctly appear.
Property unclaimed will be decreed as good prize.
Where merits clearly appear on the record, it is the settled
practice in admiralty proceedings not to dismiss the libel, but to
allow the party to assert his rights in a new allegation.
No proceedings can be more unlike than those in the common law
and in the admiralty. In prize causes, in an especial manner, the
allegations, the proofs, and the proceedings are in general modeled
on the civil law, with such additions and alterations as the
practice of nations and the rights of belligerents and neutrals
unavoidably impose.
The court of prize is emphatically a court of the law of
nations, and it takes neither its character nor its rules from the
mere municipal regulations of any country.
In cases of mere civil salvage, it may be fit and proper that
the libel should distinctly allege and claim salvage, though not
indispensable.
In cases of military salvage, the party may, if he please, adopt
a similar proceeding, but it is by no means necessary, and would in
most cases be highly inexpedient. Recaptures are emphatically cases
of prize, for the definition of prize goods is that they are goods
taken on the high seas
jure belli out of the hands of the
enemy.
Where the principal is without the country or resides at a great
distance from the court, the admission of a claim and test
affidavit by his agent is the common course of the admiralty. But
where the principal is within a reasonable distance, something more
than a formal affidavit by his agent is expected; at least the
suppletory oath of the principal so to the facts should be
tendered.
The American letter of marque, schooner
Adeline, sailed
from Bourdeaux for the United States with a cargo owned in part by
citizens of the United States and
Page 13 U. S. 245
in part by French subjects. On 14 March, 1814, she was captured
in the bay of Biscay by a British squadron, who put a prize crew on
board and ordered her for Gibraltar. After being six days in the
possession of the British she was recaptured, near Gibraltar, by
the American privateer
Expedition, who put a crew on board
and ordered her for the United States where she arrived and was
libeled, with her cargo, by the recaptors, in the District Court at
New York, as prize of war. The vessel was claimed by citizens of
the United States residing therein as was also part of her
cargo.
Another part of the cargo was claimed by French subjects
resident in the United States; another part by French subjects,
resident in France; another part by citizens of the United States,
resident in France; another part by French subjects whose residence
was not state; another part by citizens of the United States, whose
residence was not stated; and another part by "alien friends,"
without stating of what nation or where resident. Some of the
claims stated the property, at the time of capture to belong to the
persons therein mentioned, and did not state to whom it belonged at
the time of shipment.
The district court condemned as good prize all the property
owned by Frenchmen and other persons resident in France, and all
the property of those persons whose residence was not stated, and
restored all the property belonging to persons resident in the
United States upon payment of one-sixth for salvage. The vessel was
restored by consent of parties on payment of one-half for salvage.
The sentence was affirmed
pro forma by consent in the
circuit court.
The recaptors appealed as to the rate of salvage, which they
contended ought to have been one-half, and those claimants whose
property was condemned also appealed.
Page 13 U. S. 283
STORY, J. delivered the opinion of the Court as follows:
The American letter of marque, schooner
Adeline, with a
valuable cargo on board, was captured on her voyage from Bordeaux
to New York, on or about 14 March, 1814, by a British squadron, and
on or about the 19th of the same month, was recaptured by the
American privateer
Expedition, James Clayton, commander,
and brought into New York for adjudication. Prize proceedings were
immediately instituted against the vessel and cargo as enemy
property, and various claims were interposed in behalf of American
and French merchants. Upon the hearing of the cause, the district
court decreed a restoration of all the property of American
citizens and other persons resident in the United States, upon the
payment of one sixth of the value as salvage, and condemned all the
property of French subjects and of American citizens domiciled in
France, and of all others whose residence remained unexplained, as
good and lawful prize to the captors. From the former part of the
decree the captors appealed, and from the latter part the claimants
appealed to the circuit court; and from an affirmance
pro
forma for the decree in that court, the parties have appealed
to this Court. It does not appear in the record that any decree was
pronounced in respect to the vessel, and it is therefore probable,
as intimated by counsel, that she has been restored on a compromise
between the parties interested.
Before we proceed to the consideration of the principal
questions which have been argued, it will be proper to notice
several objections to the regularity of the allegations,
proceedings and proofs in the cause.
It is in the first place asserted on behalf of the claimants
Page 13 U. S. 284
that if this should turn out not to be a case of enemy property,
but of salvage merely (as most certainly as to some of the claims
it must be held to be), the recaptors can take nothing by the
present libel, because it proceeds upon the mere footing of the
property being prize of war. And it is likened to the case of a
declaration at common law, where the party can only recover
secundum allegata et probata, and if no count hit the
precise case, the party must be nonsuited.
If, indeed, there were anything in this objection, it cannot in
any beneficial manner avail the claimants. The most that could
result would be that the cause would be remanded to the circuit
court with directions to allow an amendment of the libel. Where
merits clearly appear on the record, it is the settled practice in
admiralty proceedings not to dismiss the libel, but to allow the
party to assert his rights in a new allegation. This practice, so
consonant with equity and sound principle, has been deliberately
adopted by this Court on former occasions. After all, therefore,
the claimants would, in the language of an eminent civilian, but
change postures on an uneasy bed.
But we are all of opinion that there is nothing in this
objection. No proceedings can be more unlike than those in the
courts of common law and in the admiralty. In prize causes, in an
especial manner, the allegations, the proofs and the proceedings
are in general modeled upon the civil law, with such additions and
alterations as the practice of nations and the rights of
belligerents and neutrals unavoidably impose. The court of prize is
emphatically a court of the law of nations, and it takes neither
its character nor its rules from the mere municipal regulations of
any country.
In cases of mere civil salvage, it may be fit and proper that
the libel should distinctly allege and claim salvage, though we do
not mean to assert that even in such cases it is indispensable. In
cases of military salvage, also, the party may if he please, adopt
a similar proceeding. But it is by no means necessary, and in most
cases would be highly inexpedient. Recaptures are emphatically
cases of prize, for the definition of prize goods is that they are
goods taken on the high seas
Page 13 U. S. 285
jure belli out of the hands of the enemy. When so
taken, the captors have an undoubted right to proceed against them
as belligerent property in a court of prize, for in no other way
and in no other court can the questions presented on a capture
jure belli be properly or effectually examined. The very
circumstance that it is found in the possession of the enemy
affords
prima facie evidence that it is his property. It
may have previously possessed a neutral or friendly character, but
if the property has been changed by a sentence of condemnation or
by such possession as nations recognize as firm and effectual, the
neutral or friendly owner is forever ousted of his right.
It depends altogether upon future proceedings, upon the
examinations taken in preparatory and the documents on board, upon
the verity of the claims, and the diligence and good faith of the
claimants, and upon the principles of international law, comity and
reciprocity whether a restoration can be decreed or not. How can
these questions be decided unless the customary proceedings of
prize are instituted and enforced? How can it be known whether all
the documents on board be not colorable and false or whether the
conduct of the claimant be not unneutral of fraudulent unless the
truth is drawn from the parties entrusted with the property for the
voyage by the trying force of the standing interrogatories and the
test affidavits? The very case before us presents a strong
illustration of the propriety of these proceedings. There is a
large shipment on board which, on the bill of lading, purports to
be the property of an American claimant, yet the claimant himself
expressly swears that it is the sole property of the French
shipper. What the consequences are of that fact will be presently
seen.
The court, then, has a legitimate jurisdiction over the property
as prize, and, having it, will exert its authority over all the
incidents. It will decree a restoration of the whole or of a part;
it will decree it absolutely, or burdened with salvage, as the
circumstances of the case may require; and whether the salvage be
held a portion of the thing itself or a mere lien upon it or a
condition annexed to its restitution, it is an incident to the
principal question of prize, and within
Page 13 U. S. 286
the scope of the regular prize allegation. If, therefore, the
case stood upon principle alone, we should not doubt as to the
sufficiency of the libel for this purpose; but it has also the
clear support of the practice of the admiralty.
The
Aquila, 1 Rob. 37;
The Franklin, 4 Rob. 147;
The
Jonge Lambert, 5 Rob. 54, note.
Another objection urged on behalf of the captors is to the
sufficiency of the claims and test affidavits. It is asserted, and
truly, that the goods are not alleged, in the claim or affidavits,
to have belonged to the claimants at the time of shipment; it is
only alleged that they so belonged at the time of capture.
Regularly the test affidavit should state that the property, at the
time of shipment and also at the time of capture, did belong, and
will, if restored, belong to the claimant, but an irregularity of
this nature has never been supposed to be fatal. It might, in a
case of doubt or suspicion or in a case calling for the application
of the doctrine as to the legal effect of changes of property
in transitu, have justified an order for further proof, or
in cases of gross negligence or pregnant fraud have drawn upon the
party more severe consequences. But in ordinary cases it is not
deemed to work any serious consequences; in this instance it
probably passed unnoticed in the courts below, where if the blot
had been hit, it might have been instantaneously removed by an
amendment. Another irregularity undoubtedly was that the test
affidavits were put in on behalf of many of the claimants by their
agents, although the principals were resident in the United States
and within the reasonable reach of the court. Where the principal
is without the country or resides at a great distance from the
court, the admission of a claim and test affidavit by his agent is
the common course of the admiralty. But where the principal is
within a reasonable distance, something more than a formal
affidavit by his agent is expected. At least the suppletory oath of
the principal as to the facts should be tendered, for otherwise its
absence might produce unfavorable suspicions. If indeed the
principal might always withdraw himself from the view of the court
and shelter his pretensions behind the affidavit of an innocent or
ignorant agent, there would be no end to the impositions practiced
upon the court. The court expects, in proper cases, something more
than the mere formal test
Page 13 U. S. 287
affidavit of an agent, who may swear truly and yet, from his
want of knowledge, be the dupe of cunning and fraud. It is not
meant to assert that any such imputations belong to the present
case. This irregularity, like the former, probably passed in
silence, and it would be highly injurious if an objection of this
sort should now prevail when all parties have hitherto acquiesced
in its immateriality.
We are now led to the principal question in this cause --
viz., what rate of salvage is to be allowed to the
recaptors? This depends upon the true construction of the Salvage
Act of Congress of 3 March, 1800, ch. 14. That act provides that,
upon the recapture of any vessel (other than a vessel of war or
privateer) or of any goods belonging to any persons resident within
or under the protection of the United States, the same, if
recaptured by a private vessel of the United States, shall be
restored on payment of one-sixth part of the value of the vessel or
goods, and if the vessel, so recaptured shall appear to have been
set forth and armed as a vessel of war before such capture or
afterwards, then upon a salvage of one-half of the true value of
such vessel of war.
It is argued in behalf of the recaptors that, the
Adeline being an armed vessel, they are entitled to a
moiety of the value of the cargo as well as of the vessel, either
upon an equitable construction of the statute or upon general
principles as a case not within the purview of the statute.
We are all, however, of a different opinion. The statute is
expressed in clear and unambiguous terms. It does not give the
salvage of one-sixth part of the value upon goods, the cargo of an
unarmed vessel, but it gives it upon any goods recaptured, without
any reference to the vehicle or vessel in which they are found. We
cannot interpose a limitation or qualification upon the terms which
the legislature has not itself imposed, and if there be ground for
higher salvage in cases of armed vessels, either upon public policy
or principle, such considerations must be addressed with effect to
another tribunal. This decision affirms the decree of the circuit
courts as to the claims of all the parties domiciled in the United
States.
Page 13 U. S. 288
As to the claims of the parties domiciled in France, whether
natives or Americans or other foreigners, their rights depend
altogether upon the law of France as to recaptures, for by the act
of Congress as well as by the general law in cases of recapture,
the rule of reciprocity is to be applied. If France would restore
in a like case, then are we bound to restore; if otherwise, then
the whole property must be condemned to the recaptors. It appears
that by the law of France in cases of recapture, after the property
has been 24 hours in possession of the enemy, the whole property is
adjudged good prize to the recaptors, whether it belonged to her
subjects, to her allies, or to neutrals. We are bound, therefore,
in this case to apply the same rule, and as the property in this
case was recaptured after it had been in possession of the enemy
more than 24 hours, it must, so far as it belonged to persons
domiciled in France, be condemned to the captors, and the decree of
the circuit court as to them must be affirmed.
As to the claims of the other persons whose national character
and proprietary interest do not distinctly appear, considering all
the circumstances, we shall direct further proof to be made on both
points. As indeed the master has not been able to swear directly to
the proprietary interest of the cargo, but simply says that the
goods were, as he presumes and believes, the property of the
shippers or the consignees, perhaps in strictness further proof
might have been required in the courts below as to the whole cargo.
It was not, however, moved for there by the captors, and as we are
satisfied in relation to the claims which we shall restore, it
would be useless now to make such a general order.
Upon these principles, the property embraced in the claims by
and in behalf of Alexis Gardere, of William Weaver and Isaac Levis
jointly, and of William Weaver alone, of Andrew Byerly, of George I
Brown and William Hollins, of Peter A. Karthous, of William Bayard,
Harman Leroy, James McEvers and Isaac Iselm, of William Hood, of
Theophilus De Cost, of John Dubany, of Messrs. John B. Fonssatt
& Co. of Edward Smith, James Wood and Samuel W. Jones, of
Victor Ardaillan, of Lewis Chastant, of Lewis Labat, of Benjamin
Rich, of Nathaniel Richards, Nayah Taylor and Gustavus Upson,
of
Page 13 U. S. 289
Ferdinand Hurxthal must be restored on payment of the salvage of
one-sixth part of the value. The property embraced in the claims on
behalf of Peter Boue, Jr., of R. Henry, of P. Doussault, of William
Johnston and James Dowling, of G. Brousse, must be condemned to the
captors.
The remaining claims must stand for further proof. And as to the
property unclaimed, it must be condemned as good and lawful prize
to the captors.
The decree of the circuit court is to be reformed so as to
be in conformity with this decision.
