A question of fact under the nonimportation laws. Defense set up
on the plea of distress, repelled. Condemnation.
This vessel and cargo were libeled in the District Court for the
District of Maine as forfeited to the United States for lading on
board at Liverpool, in Great Britain, certain goods which were of
the growth, produce, and manufacture of Great Britain with intent
to import the same into the United States, and with the knowledge
of the master, and also for an actual importation of the same into
the United States. The seizure was made at Bass Harbor, in the
District of Frenchman's Bay, by Meletiah Jordan, collector of that
district.
A petition was interposed by Joseph T. Wood, of Wiscasset, who
styled himself agent of Peter Molus
Page 16 U. S. 393
and Israel Rosnel, both of Bjornburgh, in Finland in Russia and
also of Frantz Scholtz, of Archangel, in Russia, merchants, and
subjects of the Emperor of Russia. The petition stated that Molus,
Rosnel, and Scholtz were owners of the brig and cargo; that she
sailed from Liverpool in the beginning of December, 1813, with a
cargo bound to the Havana, with liberty and instructions to touch
at some port in North America, to ascertain whether, according to
existing laws, they could be admitted to an entry, and if not, to
receive such orders as the agent of the owners might give. That
after a long passage of 76 days' and experiencing severe weather,
and the vessel being in a leaky condition, and the provisions
growing short, she was compelled to make Bass Harbor. That there
was some expectation at Liverpool, when the
Aeolus sailed,
that a treaty of peace between the United States and Great Britain
had been concluded, or was in great forwardness. The petition
prayed that the vessel and cargo might be restored to Mr. Wood, on
his giving bail for the appraised value. This claim was filed 14
February, 1814. At the May term following, Molus & Rosnell
claim the brig as their property, and Scholtz claims the cargo as
belonging to himself.
In February term, 1815, a rule was made on claimants to produce
the log book at the trial, and an original letter to J. T. Wood,
mentioned in the deposition of the supercargo.
Montero, mate of the brig, swore that she sailed direct from
Liverpool to the United States. The captain
Page 16 U. S. 394
on the passage told him that the vessel was bound to the United
States. The captain and supercargo said it was their intention to
have gone to Wiscasset, or Portland, where they were to discharge,
but owing to the bad state of their rigging, and the wind being
ahead, they put into Mount Desert, where they were detained by the
custom house officer. He also states that it was agreed in
Liverpool, with all the sailors, himself and the cook excepted,
that they should come to the United States and return from thence
to Liverpool. About three months after, the mate was examined
again, when he told a story so different from the relation which is
found in his first deposition that but little credit is due to him
as a witness for either party.
Lingman, one of the mariners of the
Aeolus, swore that
he was shipped on board that vessel in October last, she then lying
in Liverpool, on a voyage to some port in America, and from thence
back to some port in Europe.
Daniel Molus, master of the
Aeolus, testified, that in
October, 1813, he came to Liverpool, from Bjornburg in the Brig
Aeolus. One Lourande, who was master of the brig, having a
power to charter her as he might think proper, did charter her to
Frantz Scholtz, of Archangel, by his agent, David Morgan, on a
voyage to the Havana, and a port in North or South America. He was
ordered by Morgan, the agent of Scholtz, to proceed with the brig
to the Havana, and call off such ports as the supercargo should
direct. On 4 December, 1813, the brig left Liverpool.
Page 16 U. S. 395
Two days after, he was ordered by the supercargo to proceed off
the part of Wiscasset, and land some passengers, when he would
receive further orders from the supercargo, who expected to find
further orders there. On their passage, the brig had thirteen of
her chains broken, some of them in the eye round the bolt, and
therefore could not be repaired until some of the cargo was
discharged. Five of her shrouds were carried away, the bolts in the
heel of her bowsprit were broken, and the bowsprit came some in
upon deck. The stern boat was, by a sea, stove in pieces at the
stern and lost, with several light sails which had been thrown into
her. The spritsail yard was lost; her waist rails and boards were
wholly carried away by the sea. The binnacle was several times
capsized, and the compasses very much injured. One of the
passengers was lost overboard. The brig was short of water, and at
the time of her arrival on the American coast, the crew was in very
great distress, being on a short allowance of water, which was very
thick and bad, and not fit to be used until it was boiled, to make
it thin. There was no rigging to repair the vessel any longer. On
17 February, 1814, a council of the whole ship's crew and
passengers was held, and all were of opinion it was very dangerous
keeping longer at sea, and were for getting into the first port
which could be made. The supercargo reluctantly consented. If he
had not, the brig must have gone in, as her condition would have
justified the act. In the afternoon of 18 February, 1814, the
Aeolus anchored
Page 16 U. S. 396
in Bass Harbor after a passage of 75 days in which every
hardship had been experienced. The vessel was a complete wreck, and
the strength and spirit of the crew nearly exhausted. She was
immediately seized by the custom house officer, and the papers all
delivered up. Shortly after, the supercargo received advice from
his agent, who soon came on board himself. This witness speaks of a
survey of three shipmasters, and of their opinion, but as no such
survey is found in the proceedings, it is presumed that none was
made, or, if made, reduced to writing. He further states that the
brig had been repaired while at Bass Harbor, at an expense of near
$3,000. The cargo was the sole property of Mr. Scholtz, of
Archangel, and was put on board by his agent, David Morgan, of
London, who employed Richards, Ogden & Selden as brokers for
that purpose.
Frederic Williams testifies that he was supercargo; that the
brig was Russian -- expected in England that the nonimportation law
would soon be repealed. His orders were to proceed to Havana and to
call off Wiscasset, where he would receive orders from Joseph Wood,
agent of Mr. Scholtz, and if restrictions were removed, to enter
with the brig; if otherwise, to proceed to the Havana; had much
tempestuous weather, carried away most of their chains, and many of
the shrouds. On the arrival of the brig at Bass Harbor, he wrote to
Wood that the brig had been seized, and consulting him what had
best be done. He gave up his papers to the deputy marshall, and
took a receipt for them. Wood wrote to him, and also came down to
the brig himself and informed
Page 16 U. S. 397
him that the vessel had been seized for an alleged violation of
the nonimportation law. He received his instructions as supercargo
from Morgan, the agent of Scholtz, in London, and they were verbal
instructions only. He did not recollect that he had ever received
any letter, either from Morgan or Scholtz, concerning this voyage.
He is a native of Massachusetts, but had not resided in the United
States for about four years previous to the commencement of this
voyage. Since the arrival of the
Aeolus, he has resided
nearly two years in New York. All the papers he had were receipts
from the cartmen in Liverpool, and they were bundled together in
the cabin, from which place he took them and delivered them to
Wood, who he presumes has them.
It appears by the testimony of Robert Kelly that Wood informed
him in the beginning of February, 1814, that he expected a brig
from the West Indies, and a Russian brig to call off the mouth of
Sheepscot River for orders, and to know whether they can enter. He
desires Kelly, by letters which are produced, to keep a good look
out for these vessels, to direct the one from the West Indies to
proceed to Newport, and to inform the captain or supercargo of the
Russian brig, that the laws will not admit of his entering, unless
he is in want of something, in which case he may put into the mouth
of the river. Kelly cruised off the mouth of the river for about
four weeks, when he heard from Wood that the Russian vessel had put
into Mount Desert and was seized.
Thomas Rice relates a conversation which he overheard, between
Wood and a Mr. Pepper, in
Page 16 U. S. 398
which the former offered the latter a handsome present to swear
that he had been offered money by Haddock and Jordon, to give
testimony against the brig, and in which Wood also stated that he
had offered the mate money, to contradict the testimony he had
given for Jordan.
John Bridges swears that, being in Liverpool, in November, 1813,
with six other Americans, they were applied to by Mr. Richards, of
the house of Ogden, Richards & Selden who offered to find them
clothes, to pay their board while at Liverpool, and to find them a
passage to America. He accordingly supplied them with clothes, paid
their board eight weeks, and then put them on board the Russian
brig
Aeolus, in which they sailed for Portland.
Samuel Haddock, Jr., an inspector of the customs, went on board
of the brig when she came into Bass Harbor, and demanded her papers
of the supercargo, which he refused to give up, as he was
determined to proceed further to the westward. He understood from
the mate, that the supercargo had taken the bills of the cargo from
him, and burnt them. He thinks the brig might have proceeded on her
voyage to the Havana, when she came into Bass Harbor, with such
repairs as might have been made on board. None of the officers
complained or intimated to him, that the brig had come into Bass
Harbor in distress, nor did they pretend that the cargo was
damaged, until they began to break bulk.
By another witness, it appears that, after the seizure, the
master of the
Aeolus, in company with the mate, purchased
of him a chart of the Amelia Islands, Havana,
Page 16 U. S. 399
and the coast adjacent, observing that he had no idea of going
such a voyage when he left England, or he should have provided
himself with one.
Abraham Richardson was put on board the brig as an inspector of
the customs, when she was seized, and continued on board till the
cargo was discharged, which was about 25 days. He overheard a
conversation between Wood and the supercargo in the stateroom of
the latter, in which Wood expressed a wish that the brig had got to
Wiscasset, as he had told the collector at that place that the brig
was coming, and that he had offered him $10,000 if he would let her
enter. He observed that the collector did not tell him whether he
would, but he believed that if the vessel had put in there they
would have got her off very easy. The supercargo observed to Wood,
that if it was known that he, Wood, was concerned in the voyage it
would condemn vessel and cargo. Wood replied, "You must be very
careful not to drop a word about it. We must make it out Russian
property, if we can." The supercargo then remarked that if the
collector would not clear out the brig for Wiscasset, they must
make her out as bad as possible, so that she could not be moved,
and then bond the cargo; upon which Wood observed that if it was
condemned they should then make a good voyage, as the bonds would
not be much more than the double duties. This witness heard no
complaints on board of any distress, and believes the
Aeolus might have proceeded to the West Indies.
Page 16 U. S. 400
The papers on board represented the vessel and cargo as Russian
property. On this testimony the property was condemned as forfeited
to the United States, from which sentence the claimants appealed to
this Court.
Page 16 U. S. 401
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and
after stating the case, proceeded as follows:
It is not necessary or important on this occasion to inquire
into the national character of the
Aeolus, or to ascertain
in whom the proprietary interest of the cargo resided, at the time
of seizure, because, whether
Page 16 U. S. 402
Russian, British, or American, they are both equally liable to
forfeiture, if the offense stated in the libel has been committed.
The cargo, being avowedly of the growth, produce, or manufacture of
Great Britain, it is conceded that a forfeiture must follow if the
fact of a voluntary importation into the United States be made out.
Yet in deciding this question, it is impossible to discard entirely
from view some of the circumstances which preceded and took place
after the arrival of this vessel at Bass Harbor which, although not
immediately connected with any calamity which may have brought her
there, are not at all calculated to excite much sympathy or to call
for any extraordinary exertion of credulity, while listening to the
tale of distress, on which every hope of restitution is now
rested.
Mr. Scholtz, a Russian merchant at Archangel, in time of war
between this country and Great Britain, and during the existence of
our nonimportation act, loads at that place no less than five brigs
with the products of Russia, which he commits to the care of Mr.
Morgan, a merchant at Liverpool, with instructions, as is said, to
invest the proceeds of those cargoes in such British manufactures
as he might judge suitable for sale in the Havana. Mr. Morgan, who,
at or about the time of loading these vessels, was at Archangel,
proceeds to Liverpool, disposes of the cargoes there, charters the
Russian brig
Aeolus, and dispatches her for the Havana, to
the address of certain merchants there, who are informed by a
letter from him of the origin of this adventure, and that he has
sent to them a cargo, in conformity with the orders
Page 16 U. S. 403
of his principal, which he begs them to sell at good, or even
saving prices, and after investing the proceeds in certain produce,
to load the
Aeolus and send her to Mr. Scholtz at
Archangel. The instructions of Mr. Scholtz in an affair of so much
magnitude nowhere appear in the proceedings, but if they were, in
truth, of the kind stated by Mr. Morgan himself in his letter,
which has just been referred to, we shall find there was a total
departure from them; for not only was the cargo of the
Aeolus the most unsuitable which could have been selected
for a warm climate, but the Havana, to which alone, by his own
account, he was to send the
Aeolus, was to be her port of
destination only in case she could not enter a port of the United
States. When we find so great a departure from instructions as
would inevitable fix upon the agent a responsibility to the whole
extent of the property committed to his charge, we may well be
permitted to doubt of their existence altogether, and to suspect
that Mr. Morgan is acting in the character of a principal, and not,
as he would have us believe, in that of a humble subordinate agent.
This suspicion is not diminished, when we find that although this
suit has been pending between two and three years, Mr. Scholtz has
interfered with it neither in person, nor has he thought it worth
his while to appoint any agent for that purpose.
After the purchase of a cargo principally calculated for a
northern market, and worth not less than $104,311.37 cents, it is
committed to a supercargo, to whom no other than verbal
instructions are given. This gentleman styles himself a
commissioned
Page 16 U. S. 404
officer in the imperial navy of Russia, and on his arrival in
the United States can speak nothing but broken English. He proves,
however, to be a natural born citizen of Massachusetts, who had
been absent from his country not more than four years, and who
therefore, as may well be supposed, was not long in recovering his
vernacular tongue, which we soon find him speaking with as much
facility as if he had never been absent from his native state. Mr.
Williams, for that is the name of the supercargo, is directed by
Mr. Morgan to call off Wiscasset, where he would receive orders
from Mr. Wood, who, it seems, although it does not appear how, was
fully apprised of the destination of this vessel, and of the time
when she would probably be in his neighborhood. Whence he derived
this knowledge, or when, he has not deigned to inform the court,
and although claiming so valuable a property for the owners of
vessel and cargo, he has shown no authority whatever from either of
them for interfering in this way, and when, after a lapse of more
than two years and a half from the first institution of proceedings
in the district court, interrogatories are addressed to him, for
the purpose of discovering who were the real owners of this
property, and whether they had appointed him, and when, as their
attorney, and some other matters which he alone could have rescued
from the mystery in which they are now involved, he produces no
authority whatever, and contents himself with informing the
commissioners, that being agent of the claimants, he thinks it
improper at that
Page 16 U. S. 405
time to answer any interrogatories, and shall therefore decline
doing so.
The
Aeolus leaves Liverpool without being furnished
with a chart of the Havana, or the coast adjacent, and two days
after her departure the master is ordered by the supercargo to
proceed off the port of Wiscasset, which was accordingly done, and
all idea of going to the Havana, if any were ever entertained,
appears from that moment to be abandoned, and she is accordingly
found, after a boisterous and long winter's passage, in a high
latitude off the American coast. Now if there be nothing criminal
in a vessel coming on our coast with a
bona fide intention
of ascertaining whether under existing laws, she would be permitted
to an entry; yet when a vessel is found in this situation in a
boisterous season of the year, and so very much out of the way of
the place to which it was pretended she was destined, if our ports
were shut, and then relies on the plea of distress for the coming
in, a court will require the most satisfactory proof of the
necessity which is urged in her defense.
To make out this necessity, the principal, if not the only
witness produced, are the master and supercargo. Out of fifteen
persons, these two are selected, and relied on to establish this
all-important fact. No survey is had of the vessel or cargo either
before or after it was discharged. To these two witnesses, if they
stated a sufficient distress, which is not conceded, very serious
objections lie. The master is so much implicated in all the
transactions of this nature that it must always be more or less
hazardous for a claimant
Page 16 U. S. 406
to resort to his testimony, when other and less exceptionable
witnesses are at hand. Not only some of the seamen on board might
have been examined; but why not call on persons residing at the
place where the vessel discharged, to examine her, and to give
their testimony. Such persons were at hand, for the master speaks
of three shipmasters who surveyed her, and gave their opinion. As
no survey is produced and neither of these ship masters is a
witness, the court can take no notice of any opinion they may have
entertained or have given to the master of the
Aeolus. The
testimony of the supercargo on this subject, if it made out an
adequate cause for coming in, would have been entitled to more
credit if he had behaved throughout this transaction in a manner
more consistent than he appears to have done. But independent of
this conduct, there are parts of his testimony which it is very
difficult to believe, and which throw a shade over the whole. He
swears that his instructions for Morgan were not in writing, and
that he had never received either from him or Scholtz any letter
concerning his voyage. It is incredible that any man should be
entrusted with so large a property, without other than verbal
instructions, or at any rate it is so entirely out of the common
course of business that the court cannot be blamed for disbelieving
it. But there are other circumstances which detract much from the
credit of these two witnesses. There is every reason to believe
from other evidence in the cause, that when the brig came into Bass
Harbor, neither of them thought of justifying their conduct on the
ground of necessity.
Page 16 U. S. 407
This suggestion was made to them by Mr. Wood, and not until they
had been there a week or longer. This fact is proved in a way to
admit of but little doubt of its accuracy; not only by the profound
silence which was observed on this subject by the master and
others, for some time after the arrival of the brig, but by
positive testimony, which establishes that the allegation of
distress was a matter of concert between the supercargo of Mr.
Wood. It also appears by other witnesses in the cause, that the
Aeolus, notwithstanding the injuries which she had
received, might have proceeded to the West Indies without any other
repairs than such as might have been put on her at sea.
Upon the whole, the Court is of opinion that the coming in of
the
Aeolus was voluntary, and not produced by any distress
which could justify the measure, and that thereupon the sentence of
the circuit court must be
Affirmed with costs.
MR. JUSTICE JOHNSON dissented.
This valuable vessel, with a cargo worth $120,000, is claimed as
Russian property. She was libeled as forfeited under the provision
of the nonimportation act, and all questions respecting proprietary
interest I consider irrelevant to the case. The excuse for putting
into the port of Bass Harbor was distress, and, as in the case of
the New York, the minority of the Court are of opinion that she
ought to have been permitted to store her cargo, repair, reship it,
and depart. Such evidently was the policy of the law under which
she was seized, which had for its object the
Page 16 U. S. 408
exclusion of British goods, whereas this seizure legalized their
introduction into the country.
It is urged in this case that a variety of circumstances
indicated a fraudulent intention. That the examination of the
witnesses exhibits a melancholy view of depravity of morals I
freely admit, but the observation is fully as applicable to the
testimony for the prosecution as that against it.
The two principal circumstances relied on as indicia of fraud,
to-wit her clearing out for Havana and her having a cargo adapted
to a northern market, admit of an explanation perfectly consistent
with innocence, for it is well known that a neutral never clears
out from a British port to a port of their enemy, and as to her
having a cargo adapted to a northern market, it is precisely what
she avows -- that her intention was to deposit it in that market
had the prohibition been taken off on her arrival.
Under these circumstances it appears to me that the only
question in the case was whether the distress was accidental or
factitious. If there had been any fraudulent means made use of to
produce the injury sustained condemnation ought to follow. But if
produced by causes not within the control of man, even though the
distress may not have been deemed sufficient to entitle the party
to a permit to unlade and refit, yet it was no sufficient cause for
condemnation, and the vessel should have been ordered off. That the
distress in this case was not factitious, nor very inconsiderable,
there is every reason to believe. The vessel had had a voyage of
seventy-five days, nearly double what might reasonably have been
provided,
Page 16 U. S. 409
for she had shipped a sea which carried away her railings, and
washed overboard one of her passengers; her shrouds and bowsprit
were materially damaged, and her water short. Under these
circumstances, I must think that this collector was less under the
influence of humanity and a sense of duty, than that of avarice, in
making this seizure. Had he libeled her as enemy's property, I
should have thought the case not destitute of reasonable grounds;
but it was not his interest to convert her into a
droit of
admiralty, and it is not our province under this libel to admit
anything into the case which can bear the appearance of charging
with one crime, and trying for another.
Decree affirmed.
