1. A vessel sailing through blockaded waters may be properly
seized on suspicion of intent to break the blockade when, in
addition to the manifest bearing date as of a day when only a part
of the cargo is laden, the bills of health and clearance point to
one port as her port of destination, while the captain's letter of
instructions require him to stop at another not in the direct line
to that place for instructions; when both the vessel's bills of
health specify six men and no passengers, there being in fact one
passenger; when the provisional certificate of registry represents
as sole owner one person and other papers another.
2. Condemnation decreed where a vessel, with a changed name and
with papers open to suspicion as above stated, and whose master had
ten months before commanded a blockade-runner, was found sailing
from the immediate proximity of the line separating neutral from
blockaded waters (in fact from within the line) with an ownership
which a complicated, obscure, and apparently contradictory history
left in doubt, where also the ostensible ownership was apparently
but a mere cover, no claim for her being put in after capture and
libel otherwise than by her captain, who put it in for the
ostensible owners, he acting without instructions from them and
only in his capacity of master, a part of the cargo being moreover,
more plainly still, enemy's property.
3. In proceedings in libel against a ship and cargo as prize of
war, the burden of proving neutral ownership of them is upon the
claimants. When there is no proof of such ownership, and still more
when the weight of the evidence is that the ownership is enemy
ownership, condemnation will be pronounced.
APPEALS from the District Court of the United States for the
Eastern District of Louisiana decreeing restitution of the schooner
and cargo and decreeing costs and charges against
their claimants, the questions involved being of fact chiefly.
THE CHIEF JUSTICE delivered the opinion of the Court, in which
the case is stated.
The schooner Jenny,
with a cargo of one hundred and
fifty-four bales of cotton, was captured by the United States war
in Texan waters north of the Rio
Page 72 U. S. 184
Grande on the 6th of October, 1863, and was brought into New
She was libeled as prize of war in the District Court for the
Eastern District of Louisiana on the 16th of October.
On the 7th of November, John Johnson the master of the schooner,
put in four separate claims, one in behalf of Hale & Co. for
the schooner, one in behalf of H. Fernstein, for forty-four bales
of cotton, one in behalf of Ruprecht & Fortner for thirty-nine
bales, and one in behalf of J. Rosenfeld for seventy-one bales. On
the 10th of December two other claims were filed, one by Charles
Andre in behalf of Augustine Stark for the thirty-nine bales and
the other by Conrad Seiler in behalf of R. M. Elkes for the
forty-four bales. No personal claim or test affidavit was made by
any of the parties alleged to have title in the vessel or cargo,
and no evidence was put in of any authority in Andre or Seiler to
represent Stark or Elkes. The authority of Johnson was derived from
his character as master.
The seizure was made because she sailed from the blockaded coast
of Texas and because of the unsatisfactory nature of her
Her manifest was dated September 17, 1863, at which time her log
book showed that she had only part of her cargo on board; it
appeared also from her manifest, her bill of health from the
American consul, and her Mexican clearance that she was bound for
New York, whereas the captain's letter of instruction required her
to stop at Nassau and conform to the instructions of Saunders &
Co., of that place; both her bills of health specified six men, and
no passengers, whereas in fact a passenger by the name of Mund was
found on board; the provisional certificate of registry represented
Hale & Co., of Matamoras, as sole owners of the vessel, whereas
the captain's instructions and other papers showed that C. F. Jenny
was the owner.
These facts doubtless justified suspicion and warranted seizure.
We must then inquire into the true character and ownership of the
vessel and cargo as shown by the preparatory evidence.
Page 72 U. S. 185
It appears that the vessel was American built and that her
original name was Southron,
and a paper found on board
showed that Johnson, her master, had commanded in December, 1862, a
schooner engaged in running the blockade from Mobile to Havana.
was sold under order of the United States
sequestration commission in New Orleans to one P. A. Front, and a
register was issued to him on the 18th of March, 1863.
She was probably soon after sold by Front, though he still
remained master, to one Julius Schlock, for this person, on the
21st of April, made a bill of sale of her at Matamoras to Hale
& Co. of that place.
Hale & Co. do not seem to have taken possession of her, for
on the same day an irrevocable power of attorney was made by that
firm to one Jacob Rosenfeld, of Houston, in Texas, giving him or
his substitute absolute control over the management and disposition
of the schooner by sale or otherwise.
This paper was not signed by Hale & Co., but was drawn in
their name and signed by one John P. Moony, who, in a declaration
of membership in the firm dated six days later, represented himself
as a partner.
These documents were not framed and executed in this irregular
way by accident. In a letter to Johnson & Co., at Nassau, Jenny
called Hale & Co. "the pretended owners," and complained that
Moony refused to make out the papers, as he, Jenny, wished, simply
remarking to him, "You have full and irrevocable power of attorney
to do or not to do with the schooner whatever you please. I shall
never interfere with you or your acts."
On the same day that the declaration of ownership was made, a
British provisional certificate of registry representing Front as
master and Hale & Co. as owners was issued by the British
On the 12th of September, 1863, Rosenfeld transferred to Charles
F. Jenny of Matamoras, as his substitute, all the powers vested in
him by the irrevocable power of attorney.
Page 72 U. S. 186
And on the 17th of the same month, Jenny made a like transfer to
Saunders & Co. of Nassau as his substitute.
Jenny appears to have exercised control over the vessel much
earlier, for he appointed Johnson in place of Front on the 27th of
May, after which the schooner made a voyage to Havana and back with
Rosenfeld as supercargo.
In all transactions connected with the last voyage, Jenny acted
as apparent owner, while Rosenfeld appeared only as a shipper of
cotton. In the letter to Saunders & Co. already quoted, Jenny
authorized the sale of the schooner at Nassau and directed the
remittance of the proceeds to his firm in Switzerland. In case sale
could not be effected at Nassau, he directed that the power and the
papers of the ship should be transferred to Schlesinger & Co.,
of New York, the consignees there of the vessel and cargo, to whom
he also wrote instructing them to sell the schooner, or if not, to
obtain a return cargo for her. In this letter he spoke of the
vessel as "my schooner Jenny.
This testimony leaves the ownership of the schooner in some
doubt. The sale to Hale & Co. was most probably a mere cover.
It is clear that except in obtaining the British provisional
registry, they never acted or held themselves out as owners; nor
did they appear personally in this Court to make claim for the
vessel, or otherwise than through Johnson who acted without
instructions from them, and merely in his capacity as master. And
he, in his preparatory deposition, said only that the
belonged to them as far as he knew, but he did not
Their irrevocable power of attorney to Rosenfeld vested in him
all the powers of owner and made him owner in effect. After the
transfer of the power, Rosenfeld was constantly connected with the
schooner as supercargo and shipper of cotton. On the other hand,
the conduct of Jenny and his apparently absolute control indicate
ownership of her. He may have acted and probably did act under some
arrangement with Rosenfeld, or they may have been connected in
ownership. The former supposition is strengthened by the
circumstance that Jenny disappeared from all apparent
Page 72 U. S. 187
connection with her immediately after capture, while Hale &
Co., the grantors of the Jenny
to Rosenfeld, were brought
forward as ostensible owners.
Thus far as to the vessel. We have already referred to the
claims for the cargo.
One of the claims was in behalf of Rosenfeld, who was presented
in a new character. In the power of attorney executed at Matamoras,
he was described as a resident of Texas. In the claim made in New
Orleans, he was represented as a resident of that city, absent in
Matamoras. The claim in his behalf was for the seventy-one bales.
It is remarkable, if he was in fact a resident of New Orleans, that
he has never claimed otherwise than through Johnson and never made
any test affidavit at all. The truth, we apprehend is, that he was
what the power of attorney declared him to be -- a resident of
Texas -- and therefore, at that time, a rebel enemy of the United
The remainder of the cargo seems to have been shipped in good
faith at Matamoras.
We are next to inquire what was the course, position, and
conduct of the vessel at the time of capture, as shown by the
preparatory evidence and the further proof.
She had recently come down the Rio Grande from Matamoras. She
was observed two days before the capture anchored in Texan waters,
near the coast of Texas. *
She was probably
there when she took on board the seventy-one bales belonging to
Rosenfeld, which she received from lighters. When she left her
anchorage, the Virginia
sent a boat to intercept her, and
she was brought to by a shot or two from this boat. The mate of the
Jenny says she was at this time about a mile from the shore. The
officers of the Virginia
make her distance from shore
three miles or more, and her place from three to five miles south
of the Rio Grande.
What are the conclusions of law from these facts? In strictness,
having taken on part of her cargo off
Page 72 U. S. 188
the blockaded coast and having sailed from that coast, was
attempting to run the blockade when captured.
But we are not inclined to condemn the vessel on this ground,
much less the forty-four bales and the thirty-nine bales, which
were taken on board at Matamoras.
But it is an undoubted principle that in a case of libel as
prize of war, the burden of proving the neutral ownership of the
ship and cargo is upon the claimants. In this case, satisfactory
proof is made of neutral ownership in the cotton laden at
Matamoras. But there is no proof at all of such ownership in the
seventy-one bales put on board from lighters, and no satisfactory
proof of such ownership in the schooner. On the contrary, the
weight of the evidence is that these bales were owned by a rebel
enemy; and that the same rebel enemy, either alone or in
association with Jenny, who makes no claim, owned the schooner.
It results that the forty-four bales and the thirty-nine bales
must be restored to the claimants represented by the master,
without contribution to costs or expenses, and that the seventy-one
bales and the schooner must be condemned.
The decree below must be reversed and a decree entered in
conformity with this opinion.
p. <|72 U.S.
173|>173 -- REP.