Page images
PDF
EPUB

THE

ADVEN

with a valuable cargo on board, they were captured by

the Nymphe and Medusa, French frigates, and by TURE, them the brig was plundered and burnt. On the 21st,

the frigates captured the “ Adventure," a British ship MASTER. Jaden with British goods; and, after taking out a part

of the cargo, made a present of the residue to the Libelhim brought lants. The fact of the gift is established by a writing into a port & under the hand of the captain of the Medusa, commandCourt of his er of the squadron, in wbich he says, “Je donne au own country, capitaine" &c. in the language of an unqualified donaand the nation tion. On the 230 November, they left the squadron, to which the and arrived at Norfolk on the 1st of February, 1812, vesseloriginal- after a long and boisterous voyage in a large ship war breaks out navigated by a very inadequate crew. On her arbefore final ad- rival in the United States, she was libelled by the 'capbe considered tain and crew as their property acquired under the doas a case of sal- nation of the French captor; and the United States intety ar judgeri terposed a claim for the forfeiture incurred under the nonto the libellants importation act. At the time of her arrival, peace exand the other

isted between this country and Great Britain : but on moiety to remain subject to the 18th of June following, and pending this suit, war the future of

was decared. der of the which their PINKNEY, for the Libellants, peal brought up; and to be res Said it was not his intention, at this time, to inquire tored to the o.

whether or not this be a case for condemnation under riginal owner alier the ter- the non-intercourse act of March 1, 1809; He did not mination of the mean to deny that it is not. Waving that question, theregislative provi fore, for the present, he contended that the property in sion should controversy is either, a droit of admiralty subject to sal

But no made for the vage, or that it is to be considered as derelict. confiscation of evidence has been produced in support of the latter supenemy's, Ploin position. It must therefore be considered as a case of perty in the country at

the former description, and a case too, of the most méthe declaration ritorious character. of war. The act of bringing in the If this be conceded, the next question is, what rate of cargo, though salvage shall be allowed? The English rule on this subject articles the" is fixed only in the case of re-capture by government importation of ships and privateers. The salvage allotted to the first, hibited Ways pass is at the rate of one eighth of the beneficial interest in the was not consi- whole re-captured property ; to the last, one sixth. In dered, under the peculiar

all other cases, the judge of the Court is at liberty to circumstances order sucli salvage as he shall deem reasonable. Some

Court from

[ocr errors]

times the whole property saved is allowed--sometimes THE the moiety only, and sometimes less. The present case ADVENis one of extraordinary merit.,

TURE,

In the Court below, two points were made in behalf MASTER. of the United States :

of this case, as 1. That this was a case of forfeiture under the non

subjecting the

property to intercourse act of 1st of March 1809; and if not, then, forfeiturc.

2. That it was a case of salvage, and the rate to be allotted discretionary with the Court.

JOHNSON, J. here suggested a doubt whether it was not a case under the non-intercourse act; and asked whether the United States could rightfully seize the property in question as a droit of admiralty, in port, or any other British property on the land. He also observed that there might be some difficulty with regard to the allotment of salvage, should this prove to be a case of that kind.

HARPER, for the Libellants.

On a capture of a vessel, the right of the captors is only inceptive: In order to complete that right, it is necessary to prosecute it to the condemnation of the vessel in a Court of competent jurisdiction. In the present case, the French captors transferred their right, whatever it was, to the American master and crew. Could they lawfully do this? The decision of the question depends upon the doctrine relative to the transfer of a chose in action. We contend that they could; and that the transferrees were consequently entitled, as captors, to prosecute the original capture.

But if the Libellants are not entitled as captors, then it is a question whether it be a case under the non-intercourse act, or a case salvage.

[ocr errors]

In order to bring it within the meaning of the non-intercourse act, it must be shown that there was an intention to import for sale or use—that there was a voluntary importation, and that the importation was from a foreign port or place. But here, there was no such intention,

THE

here was no voluntary importation; and no importation, ADVEN- as we conceive, from any foreign port or place within the TUKE, meaning of the act ; here was no intention to infract any

law whatsoever; it was a case of clear necessity : the masMASTER. ter and crew were obliged to bring in the ship to save

their own lives.

But it may perhaps be said that though it was necessary to bring in the ship, it was not necessary to bring in the cargo. What then was to be done with it. Was it to be thrown into the sea ? The British owner was not divested of his right. Such an act, therefore, would have been inconsistent with the neutral character which it was the duty of all Americans to preserve towards Great Britain, with whom we were then at peace.

We conceive that the course pursued by the Libellants, was unexceptionable. They proceeded openly to the United States, and, immediately on their arrival, delivered up the property to be disposed of according to law. There is no appearance, throughout the whole transaction of the smallest intention to violate any law whatever.

It must, therefore, be considered as a case of salvage; and bad the relations between Great Britain and the United States continued as they were at the time of the importation, the residue of the property in question, after deducting the salvage, must bave been restored to the British owner.

But the declaration of war has altered the nature of the case : The ship and cargo have now become enemy property, and, as such, are claimed by the American government, subject, however, to the right of the libellants.

What salvage is to be allotted to us, the Court will decide. Our case is certainly one of great merit: we were, for more than two months, exposed to the perils and hardships of a long and boisterons voyage; and that, too, in a large ship to the management of which the small crew on board was by no means adequate. Less than half the amount of the property would not we conceive, compensate us for the trouble and danger we have incurred.

THE

PINKNEY, observed that he had not considered this as a case coming within the meaning of the non-inter- ADVENcourse act, and had therefore waved the discussion of that TURE, point: he still doubted whether, there were sufficient grounds to support it. The law only prohibits importa- MASTER. tions from a foreign port or place. In cases of trans-shipment, it may perhaps be said that the property trans-shipped is imported from a foreign place: but here was no trans-shipment, no change of vessel : here, the property is imported from the high seas, which can hardly be considered as coming within the description of a foreign port or place. He did not mean, he said, to enter into a formal argument. He would, however, observe that, in his opinion, the captors, in the present case, could not complete their right to the property in question by means of a neutral master and crew, even if the British owner was divested of his right.

Rush, Attorney general, conceived that the high seas might be considered as a foreign place; that the cargoes of whale-ships from the Pacific, such as oil, whalebone, blubber, &c. which originate from the sea, might be considered as within the meaning of the non-intercourse act. He suggested that the word place, in the act, was probably used in contradistinction to port.

MARSHALL, Ch. J. In the Circuit Court the high seas were considered as common to all nations, and, of course, foreign to none.

PINKNEY, said this was a case of very considerable difficulty. How is the property to be disposed of? It cannot be decreed to the United States, for it is not a case under the non-intercourse act, nor was the seizure jure belli : A prize Court had no jurisdiction : for the seizure was in time of peace, for a supposed violation of the non-intercourse law, and after the property was landed: It cannot be decreed wholly to the Libellants, because it must be considered as a case of salvage. Nor can it be restored to the original owner, because he is an alien enemy.

Monday, March 7th. Absent.... TODD, J.

STORY, J. did not sit in this cause, some distant relative of his having an interest in it. VOL. VIII.

THE

Johnson, J. after stating the facts of the case, as beADVEN- fore mentioned, delivered the opinion of the Court as TURE, follows:

MASTER. The very peculiar circumstances of this case require

the application of a variety of principles; and the Court has not been aided in its enquiries, by that elaborate discussion which such nuvel cases generally elicit. But they are relieved by the reflection, that the principles to which they must resort in forming their judgment are well established, and lead satisfactorily to a conclusion.

The most natural mode of acquiring a definite idea of the rights of the Libellants in the subject matter, will be, to follow it through the successive changes of circumstances by which the nature and extent of the rights of the parties were affected. The capture, the donation, the arrival in the United States, and the state of war.

As between the belligerents, the capture undoubtedly produces a co:nplete divesture of property. Nothing remains to the original proprietor, but a mere scintilla juris, the spes recuperandi. The modern and enlightened practice of nations, has subjected all such captures to the scrutiny of judicial tribunals, as the only practical means of furnishing documentary evidence to accompany ships that have been captured, for the purpose of proving that the seizure was the act of sovereign authority, and not mere individual outrage. In the case of a purchase made by a neutral, Great Britain demands the production of such documentary evidence, issuing from a Court of competent authority, or will dispossess the purchaser of a ship originally British (the Fladoyen, 1, Rob. 114, 135.) Upon the donation, therefore, whatever right might, in the abstract, have existed in the captor, the donee could acquire no more than what was consistent with his neutral character to take. He could be in no better situation than a prizemaster navigating the prize, in pursuance of orders from his commander. The vessel remained liable to British capture on the whole voyage. And, on her arrival in a neutral territory, the donee sunk into a mere bailee for the British Claimant, with those rights over the

« EelmineJätka »