The Georgia, 74 U.S. 32 (1868)
U.S. Supreme CourtThe Georgia, 74 U.S. 7 Wall. 32 32 (1868)
74 U.S. (7 Wall.) 32
1. A case in prize heard on further proofs, though the transcript disclosed no order for such proofs, it having been plain from both parties' having joined in taking them that either there was such an order or that the proofs were taken by consent.
2. A bona fide purchase for a commercial purpose by a neutral, in his own home port, of a ship of war of a belligerent that had fled to such port in order to escape from enemy vessels in pursuit, but which was bona fide dismantled prior to the sale and afterwards fitted up for the merchant service, does not pass a title above the right of capture by the other belligerent.
Appeal from the District Court for Massachusetts, condemning as prize the steamship Georgia, captured during the late rebellion. The case, as derived from the evidence of all kinds taken in the proceedings, was thus:
The vessel had been built, as it appeared, in the years 1862-1863 at Greenock, on the Clyde, as a war vessel for the Confederate government, and called the Japan, or if not thus built, certainly passed into the hands of that government early in the spring of 1863. On the 2d of April of that year, under the guise of a trial trip, she steamed to an obscure French port near Cherbourg, where she was joined by a small steamer with armaments and a crew from Liverpool. This armament and crew were immediately transferred to the Japan, upon which the Confederate Flag was hoisted, under the orders of Captain Maury, who had on board a full complement of officers. Her name was then changed to the Georgia, and she set out from port on a cruise against the commerce of the United States. After being thus employed for more than a year -- having in the meantime captured and burnt many vessels belonging to citizens of the United States -- she returned and entered the port of Liverpool on the 2d of May, 1864, a Confederate vessel of war, with all her armament and complement of officers and crew on board. At the time she thus entered the port of Liverpool, the United States vessels of war Kearsarge, Niagara, and Sacramento were cruising off the British and
French coasts in search of her, the Alabama, and other vessels of the rebel confederation. It was resolved at Liverpool that she should be sold. It appeared that Captain Bulloch, an agent of the Confederacy at the port, at first thought of selling her at private sale, together with her full armament, but failing in that, she was advertised for public sale the latter part of May and the first of June. A certain Edward Bates, a British subject and a merchant of Liverpool dealing not unfrequently in vessels, attracted by the advertisements, entered into treaty about her. The broker concerned in making a sale of her, testified that "Bates was desirous of knowing what would buy the ship, but he wished the armament excluded, as he did not want that." According to the statement of Bates himself, it had occurred to him that with her armament on board, he might have difficulty in procuring a registry at the customs. All the guns, armament, and stores of that description were taken out at Birkenhead, her dock when she first entered the port at Liverpool. The vessel had been originally strongly built, her deck especially, and this was strengthened by supports and stanchions. Though now dismantled, the deck remained as it was, the traces of pivot guns originally there still remaining. The adaptation of the vessel to her new service cost, it seemed, about 3,000. How long she remained in port before she was dismantled was not distinctly in proof, though probably but a few weeks. The sale to Bates was perfected on the 11th June, 1864, by his payment of 15,000, and a bill of sale of the vessel from Bulloch, the agent of the Confederacy. He afterwards fitted her up for the merchant service and chartered her to the government of Portugal for a voyage to Lisbon, and thence to the Portuguese settlements on the African coast. The testimony failed to show any complicity whatever of Bates with the Confederate purposes. But he had a general knowledge of the Georgia's career and history, testifying in his examination
"that he knew from common report that she had been employed as a Confederate cruiser, but thought that if the United States government had any objection to the sale, they or their officers would have given
some public intimation of it, as the sale was advertised in the most public manner."
The American minister at the Court of London, Mr. Adams, who was cognizant of the vessel's history from the beginning and had kept himself informed of all her movements and changes of ownership, having, on the 14th March, 1863, called the attention of Earl Russell the British Secretary for Foreign Affairs, to the rule of public law, affirmed by the courts of Great Britain, which rendered invalid the sale of belligerent armed ships to neutrals in time of war, and insisting on its observance during the war of the rebellion, and having remonstrated, on the 9th of May, 1864, against the use made by the Georgia of her Majesty's port of Liverpool, informed him on the 7th of June following, and just before the completion of the transfer to Bates, that the federal government declined
"to recognize the validity of the sale of this armed vessel, heretofore engaged in carrying on war against the people of the United States, in a neutral port, and claimed the right of seizing it wherever it may be found on the high seas."
Simultaneously with this note, Mr. Adams addressed a circular to the commanders of the different war vessels of the United States, cruising on seas over which the Georgia was likely to pass in going to Lisbon, informing them that in his opinion "she might be made lawful prize whenever and under whatever colors she should be found." [Footnote 1] Leaving Liverpool on the 8th August, 1864, the vessel was accordingly captured by the United States ship of war Niagara off the coast of Portugal on the 15th following, and sent into New Bedford, Massachusetts, for condemnation. A claim was interposed by Bates, who afterwards, on the 31st January, 1865, filed a test affidavit averring that he was the sole owner of the vessel, was a merchant in Liverpool and a large owner of vessels, that he had fitted out the Georgia at Liverpool for sea and chartered her to
the Portuguese government for a voyage to Lisbon, and thence to the Portuguese settlements on the coast of Africa, and that while on her voyage to Lisbon in a peaceable manner, she was captured, as already stated.
The proofs in the case were not confined to the documentary evidence found on board the prize and to the answers to the standing interrogatories in preparatorio, but the case was heard before the court below without restriction and without any objection in it upon additional depositions and testimony, although, so far as the printed transcript of the record before the court showed, no order for further proof had been made. The counsel of both government and claimant, however, had joined in taking the additional testimony, and among the witnesses was Bates himself, whose deposition with its exhibits occupied fifty-six pages out of the one hundred and forty-seven which made the transcript.
The court below condemned the vessel.