A vessel, owned by citizens of the United States, sails from
Naples in the year 1812 for the United States with a cargo and a
British license to carry the same to England. On her passage,
hearing that war had broken out between Great Britain and the
United States, she alters her course for England, is captured by
the British, carried into Ireland, libeled, and acquitted upon her
license, sells her cargo, and after a detention of seven months in
Ireland, purchases a return cargo in Liverpool, sails for the
United States, and is captured by a United States privateer. Vessel
and cargo condemned as prize to the captors. Capture good, though
only a prize master put on board.
The following were the material facts in the case:
The brig
Alexander, William S. Picket, master, sailed
from Naples on 22 June, 1812, with a cargo of brandy, wine, and
cream of tartar, with a British license to carry the same from
Naples to England. She touched at Gibraltar, and there left her
deck load, consisting of brandy, and sailed from thence for the
United States. On 3 August, 1812, she received intelligence of the
war between the United States and Great Britain, and changed her
course for England. She was afterwards captured by the British, and
sent into Cork, Ireland, and acquitted, and there disposed of her
cargo. After seven months detention in Cork, she proceeded to
Liverpool in ballast. At Liverpool, she took in the cargo in
question, purchased by Samuel Welles, one of the claimants, then in
England, from the proceeds of the cargo brought from Naples, and
sailed from Liverpool for Boston May 9, 1813. On 2 June following,
she was captured by the privateer
America, John Kehew,
commander, and libeled as prize in the District of
Massachusetts.
When the
Alexander sailed from Naples, she and her
cargo were owned one-half by the claimants and the other half by W.
& S. Robinson of New York.
The master, on his examination upon the standing
interrogatories, stated that the vessel belonged to J. & S.
Welles and W. & S. Robinson.
He also stated that on his arrival in the United States, he
delivered to the chief clerk of J. & S. Welles, of Boston,
bills of lading, invoices, and letters relating to the vessel and
goods. These papers were never produced by the claimants.
John Welles, of Boston, claims the vessel and cargo
Page 12 U. S. 170
for himself and Samuel Welles, alleging that Samuel Welles, in
London, purchased, on their joint account of the agent of W. &
S. Robinson their half of the brig and the proceeds of the Naples'
cargo before the purchase of the cargo in question. The United
States also interposed a claim to the vessel and cargo as forfeited
under the nonimportation act.
In the district court the claim of J. & S. Welles was
rejected, and the property condemned to the United States. From
this decree the captors and claimants appealed.
In the circuit court the property was condemned to the captors.
From this decree the United States and the claimants appealed.
Page 12 U. S. 179
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The principles settled in the case of the
Rapid decides
this cause so far as respects the character of the
Alexander and her cargo. In open sea, unpressed by any
peculiar danger, with a full knowledge of the war, she changes her
course and seeks an enemy's port. If such an act could be
justified, it were vain to prohibit trade with the enemy. The
subsequent traffic in the enemy country, by which her return cargo
was obtained, connects itself with this voluntary sailing for an
enemy port; nor does the circumstance that she was carried by force
into Ireland, when her actual destination was England, break the
chain. The conduct of the
Alexander is much less to be
defended than that of the
Rapid.
But it is alleged by the claimants that in this case there was
no actual capture. This allegation cannot, in the opinion of the
Court, be sustained. That the
America took possession of
the
Alexander with the intention of making prize of that
part of her cargo which might be deemed British is not
controverted. How was this intention to be executed, how was this
part of the cargo to be libeled, if it was not captured? And if
such part of the cargo as might eventually be British was captured
and the whole remained together in the vessel, how can the capture
be considered as partial?
But it has been truly observed that it is not noncapture, but
abandonment, for which the complainants in fact contend.
Page 12 U. S. 180
But while the whole cargo remains together, claimed by the
captor, if it be enemy property, how can any part of it be said to
be abandoned? If it was entirely abandoned, for what purpose was
one of the crew of the
America put on board the
Alexander?
The inability of the prize master to secure the captured vessel
against a rescue, should one be attempted, his inability to bring
in the vessel without the aid of the hands belonging to her, is in
reason no proof of abandonment. If the circumstances of the
captured vessel be such as to do away all apprehension of rescue
and inspire confidence that the crew will bring her into port, no
reason is perceived why the property of the captor may not be
retained as well by a prize master alone as by a considerable
detachment from his crew. The cases cited to this point by the
counsel for the captors are entirely satisfactory.
With as little reason do the claimants seek to shelter
themselves under the instructions of 28 August, 1812. Those
instructions apply in express terms to such American vessels as
have sailed from Great Britain for the United States "in
consequence of the alleged repeal of the British orders in
council." A vessel which sailed while those orders were not alleged
to be repealed cannot bring herself within these instructions.
But it is alleged that these instructions are still issued, and
must mean something. Rather than ascribe their continuance to
inattention, the counsel for the claimants would give them a
construction in direct hostility with their letter and spirit. Were
this reasoning even admitted to be correct, which it is not, it
would become the duty of the Court to be astute in finding some
object to which they might possibly apply. It is possible, though
certainly it is barely possible, that some vessels which sailed
from England while the orders of council were supposed to be
repealed may not yet have reached the United States. It would be
more reasonable to reserve these instructions for such possible
case than to apply them to cases which can neither be brought
within their words nor their meaning.
The sentence is affirmed with costs.
