If a vessel be captured by a superior force and a prize master
and a small force be put on board, it is not the duty of the master
and crew of the captured vessel to attempt to rescue her, for they
may thereby expose the vessel to condemnation, although otherwise
innocent.
This was an appeal from the sentence of the Circuit Court for
the District of Massachusetts, which affirmed that of the district
court condemning the brig
Short Staple and cargo.
The facts of the case are thus stated by THE CHIEF JUSTICE in
delivering the opinion of the court.
This vessel was libeled in the District Court of Massachusetts
in March, 1809, for having violated the embargo
Page 13 U. S. 56
laws of the United States by sailing to a foreign port. The fact
is admitted by the claimants, who allege in justification of it
that the vessel was captured while on her voyage to Boston by a
British armed vessel and carried into St. Nichola Mole, where the
government of the place seized the cargo.
It appeared in evidence that the
Short Staple sailed
from Boston about 10 October, 1808, with instructions to procure a
cargo of flour and return therewith to Boston unless the embargo
should be removed before the commencement of her return voyage, in
which case she was directed to proceed to the Island of Gaudaloupe.
At Baltimore she took on board a cargo of flour, and sailed thence
for Boston about 28 October. She was detained several days in
Hampton Roads by contrary winds. During this detention, the British
armed vessel
Ino put into Hampton Roads for the purpose of
repairing some damage sustained in a storm on the coast. The
Ino had been in the port of Boston while the
Short
Staple lay there, and had cleared out for the Cape of Good
Hope, though her real destination was Jamaica. The reason her
captain has since assigned for this imposition was that by clearing
out for the Cape of Good Hope, he was allowed to take on board a
larger supply of provisions than would have been allowed had he
cleared out for any port in the West Indies.
As soon as the wind was favorable, the
Short Staple,
together with another vessel likewise bound from Baltimore to
Boston, called the
William King, put to sea and was
followed by the
Ino, which soon overtook them and took
possession of them both as prize, alleging that they were bound to
a French island. The captor put a prize master and two hands on
board the
Short Staple and sailed in company with them
until they fell in with a British ship of war. The captain of the
Ino directed the prize master to meet the ship of war and
submit to her orders, while the
Ino, dreading that her
hands might be impressed, made sail to the windward and escaped.
After their papers had been examined, the
Short Staple and
the
William King were permitted to proceed on their voyage
and were carried into St. Nichola Mole, the place appointed by the
captain of the
Ino for
Page 13 U. S. 57
meeting them when he was separated from them by the ship of war.
They arrived at the Mole about two days after parting from the
Ino, which followed them and entered the port soon after
them. The government of the place insisted on detaining one of the
vessels, as provisions were scarce at the Mole, and the
Short
Staple was given up to them. Her cargo was landed under the
direction of the government, and purchased at about $32 per barrel.
Having received about $1,200 in part pay for the cargo, the captain
of the
Short Staple sailed to Turk's Island and loaded her
with a cargo of salt, with which he returned to a port in
Massachusetts, where his vessel was seized as having violated the
embargo laws. The
William King appears to have been
carried to Jamaica and there liberated without having been libeled.
The
Short Staple was condemned in both the district and
circuit courts, and the case is brought before this Court by writ
of error.
Page 13 U. S. 59
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case,
delivered the opinion of the Court as follows:
It has been contended by the plaintiffs in error
Page 13 U. S. 60
1. That the
Short Staple, being a registered vessel and
having given bond as required by law for relanding her cargo in the
United States, is not liable to forfeiture if she has violated the
condition of that bond.
2. That her sailing to a foreign port, being under the coercion
of a force she was unable to resist, is justifiable under the laws
of the United States.
The first error has been pressed with great earnestness by the
counsel for the plaintiffs, but the Court is not convinced that his
exposition of the embargo acts is a sound one. On this point,
however, it will be unnecessary to give an opinion, because we
think the necessity under which the claimants justify their going
into St. Nichola Mole is sustained by the proofs in the cause.
It is not denied that a real capture and carrying into port by a
force not to be resisted will justify an act which, if voluntary,
would be a breach of the laws imposing an embargo. Nor is it denied
that if such capture be pretended, if it be made with the consent
and connivance of the parties interested, such fraudulent capture
can be no mitigation of the offense. The whole question, then, to
be decided by the Court is a question of fact. Was this capture
real -- was the force such as the
Short Staple could not
resist, or was it made in consequence of some secret arrangements
between the captor and captured?
It is contended on the part of the United States that the
circumstances of this case are such as to outweigh all the positive
testimony in the cause and to prove, in opposition to it, that the
Short Staple was carried into St. Nichola Mole not by
force, but with her consent and by previous concert between her
owners and the captain of the
Ino.
Those circumstances are
1. The arrival and continuance of the
Ino in the port
of Boston while the
Short Staple lay in that port previous
to her departure for Baltimore.
Page 13 U. S. 61
2. Her clearing out for the Cape of Good Hope while her real
destination was Jamaica.
3. The continuance of the
Short Staple in Hampton Roads
until the arrival of the
Ino.
4. Her capture on a coasting voyage which would not justify
suspicion.
5. Her being carried to a port where there was a good market,
and there given up, and
6. That the
William King, when carried to Jamaica, was
also given up without being libeled.
That these circumstances are some of them such as to justify
strong suspicion and such as to require clear explanatory evidence
to do away their influence is unquestionable. But the Court cannot
admit that any or all of them together amount to such conclusive
evidence as to render it impossible to sustain the defense.
That the
Ino should arrive in the port of Boston while
the
Short Staple lay in that port is nothing remarkable.
It furnished an opportunity of concerting any future plan of
operations with the owners of the
Short Staple, or of any
other vessel, but is certainly no proof of such concert. There is
no evidence that the respective owners were acquainted or had any
communication with each other, and the whole testimony is positive
that no such communication took place.
That the
Ino should have cleared out for the Cape of
Good Hope when her real destination was Jamaica is sufficiently
accounted for. It enabled her to take on board a considerable
quantity of provisions, an article in demand in Jamaica, which she
would not have been permitted to do had her real destination been
known. This may be a fraud in the
Ino, but cannot affect
the
Short Staple.
That the
Ino should have arrived in Hampton Roads while
the
Short Staple remained there, and should have followed
her to sea, and have captured her, are unquestionably circumstances
which justify strong suspicion
Page 13 U. S. 62
and which would be sufficient for the condemnation of the vessel
if not satisfactorily explained, but it is not conceded by the
Court that they admit of no explanation. These circumstances are
not absolutely incompatible with innocence.
It is proved by testimony to which there is no exception, and
which no attempt has been made to discredit, that the
Short
Staple was absolutely wind-bound the whole time she remained
in Hampton Roads, and that she attempted to put to sea before the
arrival of the
Ino, but could not. Had this capture ever
been preconcerted in Boston, the
Ino and
Short
Staple would more probably have contrived to meet on the
return voyage of the latter than to have adopted the course of the
one waiting in port for the arrival of the other and then sailing
out almost together.
The arrival of the
Ino in Hampton Roads is completely
accounted for. She had suffered by the perils of the sea and put in
for necessary repairs. This fact is proved positively, and no
opposing testimony is produced.
That the
Ino should have pursued the
Short
Staple on a coasting voyage and have captured her was a wrong
not to be justified. It is said to have been so atrocious a tort
that its reality is incredible. The fact, however, is completely
proved. The master of the
Short Staple swears that he was
on his voyage to Boston, that his intention was to proceed to that
port, that he had had no previous communication with the
Ino, and had no expectation of being captured by her or of
being turned out of his course. The other persons on board the
Short Staple testify to the same facts, as far as their
knowledge extends. The owner of the
Ino, who was on board,
and her officers swear that they had no previous communication with
the
Short Staple or her owner; that there was no concert
of any sort between them; that they were informed by some person on
shore, while the
Ino lay in Hampton Roads for repairs,
that the
Short Staple and the
William King were
on a voyage to a French island; that, expecting to find something
which would justify condemnation as prize, they determined to
examine those vessels, and
Page 13 U. S. 63
although on examination, they found nothing to justify capture,
they still hoped that something would appear in future and that, at
the worst, they should incur no risk of damages because they should
carry the vessels and cargoes to a good market. In this confidence
they determined to take them to Jamaica.
This disposition in the captors, however indefensible, is very
probable. It grew out of the state of the two countries, and no
individual who was captured in consequence of it ought, if his own
conduct contributed in no degree to that capture, to be made the
victim of it.
That she was carried into St. Nichola Mole and there given up to
the government of the place is in itself a circumstance throwing
some suspicion on the transaction and requiring explanation. The
testimony explains it. The
Ino was separated from her two
prizes by a fact which is fully proved and which sufficiently
accounts for that separation. That her captain should, when about
to leave them, appoint some near port as the place of meeting again
was almost of course, and that he should have relinquished one of
the vessels to the government of the place ceases to be matter of
much surprise when it is recollected that he could not have much
expectation of making her a prize; that in fact the capture was
made with scarcely any hope of condemnation, but with a certainty
that it would produce some additional supply of provisions, and
could injure no person. The criminality of this mode of thinking,
whatever it might be, was not imputable to the owners of the
Short Staple.
It has been contended that, during the separation of the
Ino from the captured vessels, a rescue ought to have been
attempted. There having been, during that period, but three persons
belonging to the
Ino on board the
Short Staple,
they might have been overpowered by the American crew; but the
attempt to take the vessel from them was no part of the duty of the
Americans, and might, in the event of re-capture, have exposed the
vessel and cargo to the danger of condemnation, of which, without
such rescue, they incurred no hazard.
The abandonment of the
William King without
libeling
Page 13 U. S. 64
her is the natural consequence of having been able to find no
circumstances of suspicion which might tempt the captors to proceed
against her. It undoubtedly proves what the captain of the
Ino avows -- that he acted under a full conviction of
being exposed to no risk by the capture, though he should reap no
advantage from it.
The interest which coasting vessels had in fictitious or
concerted captures undoubtedly subjects all captures to a rigid
scrutiny and exposes them to much suspicion. The case of the
claimant ought to be completely made out. No exculpatory testimony
the existence of which is to be supposed from the nature of the
transaction ought to be omitted. The absence of such testimony, if
not fully accounted for, would make an impression extremely
unfavorable to the claim. But where the testimony is full,
complete, and concurrent; where every circumstance is explained and
accounted for in a reasonable manner; where the testimony to the
innocence of the owners and crew of the vessel is positive,
proceeding from every person who can be supposed to have any
knowledge of the facts and contradicted by none, the Court cannot
pronounce against it. This would be to allow to suspicious
circumstances a controlling influence to which they are not
entitled.
The sentence of the circuit court condemning the Short
Staple is reversed and annulled and the cause remanded to that
court with directions to decree a restoration of the vessel to the
claimants and to dismiss the libel.
STORY, J., stated that he dissented from the opinion of the
Court and adhered to the opinion which he gave in the court below,
in which he had the concurrence of one his of brethren.
