Informal and imperfect proceedings in the district court
corrected and explained in the circuit court.
A bill of lading consigning the goods to a neutral but
unaccompanied by an invoice or letter of advice, is not sufficient
evidence to entitle the claimant to restitution, but is sufficient
to lay a foundation for the introduction of further proof.
The fact of invoices and letters of advice not being found on
board, may induce a suspicion that papers have been spoliated. But
even if it were proved that an enemy master, carrying a cargo
chiefly hostile, had thrown papers overboard, a neutral claimant to
whom no fraud is imputable ought not thereby to be precluded from
further proof.
The native character does not revert, by a mere return to his
native country of a merchant who is domiciled in a neutral country
at the time of capture, who afterwards leaves his commercial
establishment in the neutral country to be conducted by his clerks
in his absence, who visits his native country merely on mercantile
business and intends to return to his adopted country. Under these
circumstances the neutral domicile still continues.
British subjects resident in Portugal, though entitled to great
privileges, do not retain their native character, but acquire that
of the country where they reside and carry on their trade.
Page 16 U. S. 15
The brig
Friendschaft was captured on a voyage from
London to Lisbon by the privateer
Herald and brought into
Cape Fear in North Carolina, where the vessel and cargo were
libeled in July, 1814, as prize of war. The commercial agent of his
Royal Highness the Prince Regent of Portugal interposed a claim to
several packages, parts of the said cargo, on behalf of the
respective owners, whom he averred to be Portuguese subjects and
merchants residing in Portugal. The cargo consisted of many
different shipments. Most of them were accompanied with bills of
lading directing a delivery to shipper or order. Of these a few
were specially endorsed. Generally, however, they were without
endorsements or with blank endorsements only. A few shipments were
accompanied with bills of lading deliverable to persons in Lisbon
especially named in the bills. Very few were accompanied with
letters or invoices. These, it was alleged in the claim, had
probably been sent by the regular packet.
In August, 1814, the district court pronounced its
Page 16 U. S. 16
sentence condemning as prize of war "all that part of the cargo
for which no claim had been put in" and
"all that part of the cargo which was shipped, as evidence by
bills of lading, either without endorsement or with blank
endorsements, and not accompanied by letter or invoice,
viz., ____,"
and that part appearing by the bill of lading to consist of
forty bales of goods shipped by Moreira, Vieira, and Machado.
Further proof was ordered with respect to the residue of the cargo
and the vessel.
From this sentence the claimants appealed to the circuit court.
That court, in May, 1815, dismissed so much of the appeal as
respected the brig, and that part of the cargo in respect to which
further proof was ordered, as having been improvidently allowed
before a final sentence, and affirmed the residue of the decree
except in regard to the forty bales shipped by Moreira, Vieira, and
Machado, with respect to which further proof was directed to
establish the right of Francis Jose Moreira to restitution of
one-third part thereof.
In April, 1816, further proof was exhibited to the district
court in support of the claim for the parts of the cargo
comprehended in the bills of lading numbered 108, 109, 141, 122,
and 118, which bills being deliverable to merchants residing in
Lisbon, whose names were expressed therein, were not endorsed. The
further proof was deemed sufficient, and restitution was ordered.
The vessel and the residue of the cargo were condemned as prize of
war.
From so much of this sentence as awarded restitution
Page 16 U. S. 17
the captors appealed, and in May, 1816, the circuit court
decreed as follows:
"This court being of opinion that the former sentence of the
district court, affirmed by the sentence of this court rendered in
May term in the year 1815, having been left imperfect by omitting
to recite the particular claims intended to be involved in the
condemnation pronounced in the district court in terms of general
description, and being also of opinion that the words"
"all that part of the cargo which was shipped as evidenced, by
bills of lading, either without endorsement, or with blank
endorsements, and not accompanied with letter or invoice"
"could be intended for those bills only which were to shipper or
order, and not to those addressed to consignees named in the bill
itself, is of opinion that there is no error in the sentence of the
district court, and doth affirm the same."
From this decree the captors appealed to this Court. On the
interposition of this appeal, the circuit court ordered that Joseph
Winn, a British born subject, resident in Portugal, in whose behalf
a claim was filed to No. 118, should be permitted to offer further
proof to the Supreme Court, to be admitted or rejected by that
Court.
Page 16 U. S. 45
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating effects, proceeded as follows:
The appellants contend, 1st., that the sentence pronounced by
the district court in August, 1814, which was affirmed by the
circuit court in May, 1815, condemned finally, the packages for
which a decree of restitution was afterwards made, and that the
subsequent proceedings were irregular, and in a case not before the
court. 2dly, that upon the merits, further proof ought not to have
been ordered and a condemnation ought to have taken place.
On the first point, it is contended that these goods, having
been comprehended in invoices not endorsed nor accompanied with
letters of advice, are within the very terms of the sentence of
condemnation, and must consequently be considered as condemned.
The principle on which this argument was overruled in the court
below is to be found in its sentence. The district court, in its
decree of 1814, did not intend to confine its description of the
property condemned to the general terms used in that decree, but
did intend to enumerate the particular bills to
Page 16 U. S. 46
which those terms should apply. This is conclusively proved by
reference to the subsequent intended enumeration, which is followed
by a blank, obviously left for that enumeration. Had the
enumeration been inserted as was intended, the particular
specification would undoubtedly have controlled the general
description which refers to it. The unintentional and accidental
omission to fill this blank leaves the decree imperfect in a very
essential point, and if the case and the whole context of the
decree can satisfactorily supply this defect, it ought to be
supplied. This Court is of opinion that no doubt can be entertained
respecting the bills with which the district court intended to fill
up the blank. The condemnation of shipments evidenced by bills of
lading, with blank endorsements or without endorsement, could apply
to those only which required endorsement or which were in a
situation to admit of it. These were the bills which were made
deliverable to shipper or to the order of the shipper. Bills
addressed to a merchant residing in Lisbon could not be endorsed by
such merchant until the vessel carrying them should arrive at
Lisbon. Consequently such bills could not be in the view of the
judge when condemning goods, because the bills of lading were not
endorsed, and, had he completed his decree, such bills could have
been inserted in it. No conceivable reason exists for admitting to
further proof the case of a shipment, evidenced by a bill of
lading, made deliverable to shipper or order and endorsed to a
merchant residing in Lisbon and at the same time condemning,
without admitting to further proof, the same
Page 16 U. S. 47
shipment, if evidenced by a bill of lading, made deliverable in
the first instance to the Lisbon merchant. No. 108, for example, is
made deliverable at Lisbon to Segnior Jose Ramos de Fonseco, and is
consequently not endorsed. It is contended that these goods are not
condemned. But had the bill been made deliverable, to shipper or
order and endorsed to Segnior Jose Ramos de Fonseco, further proof
would have been admitted.
Nothing but absolute necessity could sustain a construction so
obviously absurd. This Court is unanimously of opinion that justice
ought not to be diverted from its plain course by circumstances so
susceptible of explanation that error is impossible, and that when
the decree was returned to the District Court of North Carolina
with the blank unfilled, that court did right in considering the
specification intended to have been inserted, and for which the
blank was left, as a substantive and essential part of the decree,
still capable of being supplied, and in acting upon and explaining
the decree as if that specification had been originally
inserted.
This impediment being removed, the cause will be considered on
its merits.
It is contended, with great earnestness that further proof ought
not to have been ordered and that the goods which have been
restored ought to have been condemned as prize of war. In support
of this proposition, the captors, by their counsel, insist that the
rights of belligerents would be sacrificed should a mere bill of
lading consigning the goods to a neutral,
Page 16 U. S. 48
unaccompanied by letter of advice or invoice, let in the neutral
claimant to further proof.
It is not pretended that such a bill would of itself justify an
order for restitution, but it certainly gives the person to whom it
is addressed a right to receive the goods and lays the foundation
for proof that the property is in him. It cannot be believed that,
admitting further proof in the absence of an invoice or letter of
advice endangers the fair rights of belligerents. These papers are
so easily prepared that no fraudulent case would be without them.
It is not to be credited that a shipper in London, consigning his
own goods to a merchant in Lisbon with the intention of passing
them on a belligerent cruiser as neutral, would omit to furnish a
letter of advice and invoice adapted to the occasion. There might
be double papers, but it is not to be imagined that papers so
easily framed would not be prepared in a case of intended
deception.
It is unquestionably extraordinary that the same vessel which
carries the goods should not also carry invoices and letters of
advice. But the inference which the counsel for the captors would
draw from this fact does not seem to be warranted by it. It might
induce a suspicion that papers had been thrown overboard, but in
the total absence of evidence that this fact had occurred, the
Court would not be justified in coming positively to such a
conclusion. Between London and Lisbon, where the voyage is short
and the packets regular, the bills of lading and invoices might be
sent by regular conveyances. But were it even admitted that a
belligerent master carrying a
Page 16 U. S. 49
cargo chiefly belligerent had thrown papers overboard, this fact
ought not to preclude a neutral claimant, to whom no fraud is
imputable, from exhibiting proof of property. In the case before
the Court, no attempt was made to disguise any part of the cargo.
By far the greater portion of it was confessedly British, and was
condemned without a claim. The whole transaction with respect to
the cargo is plain and open, and was, in the opinion of this Court,
a clear case for further proof.
The further proof in the claims 108, 109, 141, and 122 consists
of affidavits to the proprietary interest of the claimants; of
copies of letters, in some instances ordering the goods, and in
others advising of their shipment; and of copies of invoices -- all
properly authenticated. This proof was satisfactory, and the order
for restitution made upon it was the necessary consequence of its
admission.
Page 16 U. S. 50
In the claim to No. 118, made for Joseph Winn, the further proof
was not so conclusive. It consisted of the affidavit of the
claimant to his proprietary interest, and to his character as a
domiciled Portuguese subject residing and carrying on trade in
Lisbon. The affidavit was made in London on 29 June, 1815, but
states the claimant to have been at his fixed place of residence in
Lisbon, at the time of the capture, where he had resided for
several years preceding that event, and where he continued until 12
June, 1814, when he left
Page 16 U. S. 51
Lisbon for Bordeaux, and has since arrived in London on
mercantile business. That he is still a domiciled subject of
Portugal, intending to return to Lisbon, where his commercial
establishment is maintained and his business carried on by his
clerks until his return. To a copy of this affidavit is annexed
that of Duncan McAndrew, his clerk, made in Lisbon, who verifies
all the facts stated in it.
This property was also restored by the sentence of the district
court, and affirmed in the circuit court. On an appeal's being
prayed, the circuit court made an order allowing this claimant to
take further proof to be offered to this Court. The proof offered
under this order consists of a special affidavit of one of the
shippers of sworn copies of letters ordering the shipment and of
the invoice of the articles shipped.
This claim not having been attended, when the sentence of
restitution was made, with any suspicious circumstances other than
the absence of papers which have since been supplied and which was
probably the result solely of inadvertence, this Court is of
opinion that the further proof now offered ought to be received. It
certainly dissipates every doubt respecting the proprietary
interest. The only question made upon it respects the neutral
character of the claimant.
It has been urged that his native character easily reverts, and
that by returning to his native country, the claimant has become a
reintegrated British subject.
Page 16 U. S. 52
But his commercial establishment in Lisbon still remains; his
mercantile affairs are conducted in his absence by his clerks; he
was himself in Lisbon at the time of the capture; he has come to
London merely on mercantile business, and intends returning to
Lisbon. Under these circumstances, his Portuguese domicile still
continues.
But it is contended that the connection between Britain and
Portugal retains the British character, and the counsel for the
captors has enumerated the privileges of Englishmen in that
country.
These privileges are certainly very great, but without giving
them a minute and separate examination it may be said generally
that they do not confound the British and Portuguese character.
They do not identify the two nations with each other or effect
those principles on which in other cases a merchant acquires the
character of the nation in which he resides and carries on his
trade. If a British merchant residing in Portugal retains his
British character when Britain is at war and Portugal at peace, he
would also retain that character when Portugal is at war and
Britain at peace. This no belligerent could tolerate. Its effect
would be to neutralize the whole commerce of Portugal and give it
perfect security.
Sentence affirmed.
