14 U.S. 20 (1816)

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U.S. Supreme Court

IN RE THE OCTAVIA, 14 U.S. 20 (1816)

14 U.S. 20 (Wheat.)

The Ship Octavia.-NICHOLLS et al., Claimants.

February 13, 1816

APPEAL from the decree of the circuit court for the Massachusetts district, affirming the decree of the district court, condemning said vessel.

This ship was seized in the port of Boston, in October, 1810; and the information alleges, that the ship, in March, 1810, departed from Charleston, S. C., bound for a foreign port, to wit, Liverpool in Great Britain, with a cargo of merchandise on board, without a clearance, and without having given the bond required by the Non-Intercourse Act of the 28th of June, 1809, ch. 9. s. 3. The claimants admitted, that the ship proceeded with her cargo (which consisted of cotton and rice) to Liverpool; but they alleged, that the ship originally sailed from Charleston, bound to Wiscasset, in the District of Maine, with an intention there to remain, until the Non-Intercourse Act should be repealed, and then to proceed to Liverpool. That by reason of bad winds and weather, the ship was retarded in her voyage, and on the 10th of May, 1810, while still bound to Wiscasset, she spoke with a ship from New-York, and was informed of the expiration of the Non-Intercourse Act, and thereupon changed her course, and

Page 14 U.S. 20, 21

proceeded to Liverpool. The manifest states the cargo to have been shipped by sundries, consigned to Mr. P. Grant, Boston.

The Attorney General and Law argued the case for the appellees on the facts, and cited the case of the Wasp,a which was an information under the same section of the same act. They contended, that the burthen of proof was thrown upon the claimant, inasmuch as the law requires a bond to be given, if the ship was bound to a port then permitted, conditioned that she should not go to a prohibited port.

Dexter, for the appellants and claimants, stated, that the suit was not founded on the same act with that in the case of the Samuel;b but that the same objection existed as to the form of the process. It is true, the Judiciary Act of the 24th of September, 1789, c. 20. s. 9., has declared, that certain causes shall be causes of admiralty and maritime jurisdiction, but it does not, therefore, follow, that a forfeiture created by a new statute shall be enforced by the same process. The arguments urged against it in the cases subsequent to that of the Vangeance,c have always been answered by the mere authority of that case. But the decision in that case ought to be re-examined, because it affects the right of trial by jury, and because the argument was very imperfect. The word 'including,' in the judiciary act, ought to be construed cumulatively. It provides, that the district

a 1 Gallison, 140.

b Ante, p. 9.

c 3 Dall. 297. [14 U.S. 20, 22]

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