Goods purchased by British merchants before the war between the
United States and Great Britain in pursuance of orders from
American citizens, shipped to the agent of the British merchants in
the United States, also an American citizen, "on account and risk
of an American citizen," and no circumstances of fraud or
unfairness appearing in the transaction, were vested in the
American citizens at the time of the shipment, and are not liable
to condemnation, although the vessel sailed from England after the
declaration of war was known there. Restitution.
But if goods be purchased as above, though the accompanying
invoices, bills of lading and letters be addressed by the British
consignors to the American citizens for whom the purchase was made,
and all concur to show the property to be in them, yet if these
documents are enclosed in a letter from the consignors to their
agent in the United States, though an American citizen, directing
him not to deliver the goods in case of the existence of certain
circumstances, nor until he should have received payment from the
consignees in cash, the property in the said goods continued in the
British consignors at the time of capture. Condemnation.
Goods by the same ship, so purchased and consigned to the agent
of the consignors, being an American citizen, in whose name also
the bill of lading is made out, but the bill of parcels and invoice
in the name of the American merchants for whom the purchase was
made, the shipment also being expressed to be on the account,
though goods are spoken of in the letter of the consignee as
British property, bested in the American merchants at the time of
shipment.
The circumstance that the goods continue during the whole voyage
at the risk of the shippers is immaterial.
The following are the material facts of the case:
The ship
Merrimack, owned by citizens of the United
States, sailed from Liverpool for Baltimore a few days after the
declaration of war by the United States against Great Britain was
known in that country, having on board a cargo of goods shipped by
British subjects and consigned to citizens of the United States. On
25 October, 1812, she was captured in the Chesapeake Bay between
Annapolis and Baltimore by the private armed vessel
Rossie, Joshua Barney, commander.
The goods, being libeled as prize in the District
Page 12 U. S. 318
Court of Maryland, were severally claimed by sundry citizens of
the United States.
The claimants were:
1. William and Joseph Wilkins, merchants of Baltimore, claimed
the goods contained in eleven cases and one bale marked
"W.J.W."
These goods were made up for them, in pursuance of their orders,
before the war was known in Great Britain, by a manufacturing
company, one member of which, Thomas Leich, resided in Leicester in
Great Britain, and the other, Edward Harris was an American citizen
residing in the United States.
The bill of parcels was in the name of Messrs. William and
Joseph Wilkins. This paper also served for an invoice, and there
was no other on board for these goods.
The bill of lading was in the name of Edward Harris, who was the
consignee.
The goods were accompanied by a letter from Thomas Leich to
Edward Harris dated Leicester, 29 July, 1812, in which he says
"With this you will receive bill of lading of 11 cases of
worsted and cotton hosiery for Messrs. W. & J. Wilkins,
Baltimore, and with insurance to �892. 5. It is a large sum,
but, from what I can learn, they are very respectable. Indeed, Mr.
Brown of the house of Chancellor & Co. came with him, and
seemed almost offended that did not send the cotton hose he ordered
before, and said he would guarantee the amount of the worsted
goods, therefore must have offended him if did not comply. Have not
sent but about half the cotton goods they ordered, . . . informed
them that we thought it necessary to secure our property to ship
all to you, as you could prove that they were American property by
making affidavit they are
bona fide your property. As our
orders in council are repealed, hope your government will be
amicably inclined as well, and
Page 12 U. S. 319
that trade will be on regular footing again, but for fear there
should be some other points in dispute, I shall send you and our
friends through your hands all the goods prepared for your market
which you'll perceive is very large. . . . Hope you will approve of
my sending all, and as there may have been some alterations in some
of your friends, shipping them to you gives the power of keeping
back to you."
There was also on board a letter dated Leicester, 22 July, 1812,
signed Harris Leich & Co. and addressed to Messrs. Wm. &
Joseph Wilkins, merchants of Baltimore, in which they say,
"The repeal of the orders in council having been agreed on by
our government, we have availed ourselves of the opportunity of
sending the greater part of your spring and fall orders. . . . As
we are not certain that your government will protect British
property, we have thought it right to ship all ours under cover to
Mr. Harris who can claim as his own
bona fide property,
and he, being a citizen of the United States, thought proper to use
every precaution, having received some unpleasant accounts about
your government's having agreed on war with this country, which we
hope will not be the case."
2. McKean & Woodland, citizens of the United States, claim
sundry parcels of goods, part of the same cargo, as their
property.
These goods were purchased by Baily, Eaton & Brown,
merchants of Sheffield, in pursuance of orders from the claimants.
They were shipped to Robert Holladay, also an American citizen. The
bill of lading was to Robert Holladay "on account and risk of an
American citizen." The invoice was also headed to Robert
Holladay.
A letter from Baily, Eaton & Brown to Samuel McKean, dated
11 July, 1812, says
"A few days ago we received a letter from Mr. Rogerson, of New
York, informing us that the partnership of Messrs. McKean &
Woodland was dissolved, but he does not say whether you or Mr.
Woodland continue the business, or whether both of you decline it.
We have purchased about �3,000 sterling of goods by order
of
Page 12 U. S. 320
the late firm, and on their account, most of which have been
purchased and paid for by us from fifteen to eighteen months ago,
and have been on our hands waiting for shipment. We have this day
given orders to our shipper at Liverpool to put them on board a
good American vessel sailing for your port with a British license,
but from the uncertainty we are in respecting the particulars of
your dissolution of partnership, and in fact not knowing whether to
consign them to you or Mr. Woodland, we have finally concluded to
consign them to Mr. Holladay, with whom you will be pleased to make
the necessary arrangements respecting them. . . . We have addressed
the invoice to Mr. Holladay to your care, and directly on receiving
it, if he should not be in Baltimore, you will please advise him of
its arrival."
The residue of the letter contains their reasons for hoping that
Mr. McKean will not insist on the usual credit, but will remit
immediately on receiving the goods. This request is founded on
their having been so long in advance for the purchase of them.
Messrs. Baily, Eaton & Brown addressed a letter to Mr.
Holladay, dated 10 July, 1812, in which they say, "Enclosed you
will receive invoices of sundry goods for Messrs. McKean &
Woodland, which complete their orders." They then assign the same
reason for shipping the goods to Mr. Holladay that is given in
their letter to Mr. McKean, and after directing him to arrange with
Mr. McKean, add
"We cannot view this consignment at all in the light of an
intercepted shipment coming within the meaning of the articles of
agreement between you and us."
This letter also contained a proposition for immediate
remittance founded on the time which had elapsed since the goods
were purchased. This proposition, they say, is made to all their
friends in the United States, and they hope none will refuse to
accede to it. "But," they add, "in thus acting, we have left the
matter to the free and unbiased will of our friends, and they are
certainly upon honor."
3. Messrs. Kimmel & Albert, merchants of Baltimore, claimed
seven packages of goods on board the
Page 12 U. S. 321
Merrimack, which were purchased in pursuance of their
orders by Baily, Eaton & Baily. The invoice, bill of lading,
and letters, addressed (one by the consignors and the other by the
shipper, who was their agent) to Messrs. Kimmel & Albert,
concur in showing property in the claimants. But all these
documents and letters are enclosed in a letter of 5 August, 1812,
written by Baily, Eaton & Baily to Samuel McKean. In this
letter, the writers refer to a former letter of 3 July, in which
they informed Mr. McKean that they should, on the recommendation of
their general agent, Mr. Hollaway, enclose their invoices and bills
of lading for the adjacent country to him, and requested him to
make inquiries into the circumstances of their correspondents, and
be regulated, as to putting the letters, &c., into the post
office so as to reach the persons to whom they might be addressed,
by the result of those inquiries. Messrs. Baily, Eaton & Baily
indulge the hope that the repeal of the British orders in council
will restore peace between the two countries, in which event McKean
is still to be governed by their letter of the 3d of July. "But,"
they add,
"if, when you receive our invoices and bills of lading, a state
of war should really continue, it will be proper not to deliver
these goods until you have received the amount of the invoices from
the consignees, in cash."
4. John H. Browning & Co. was also claimant of part of the
cargo.
This claim stood on precisely the same principles with that of
Kimmel & Albert. The documents given in evidence were in effect
the same, and were enclosed in the same letter from Baily, Eaton
& Baily to Samuel McKean.
It was contended by the captors in the district court that from
the papers and letters on board, it appeared that the goods were
not sold and delivered in England, so as to vest the property in
the claimants, but were sent to the agents of the shippers in the
United States, to be delivered or not according to their
discretion. Consequently that the property was not changed, and the
goods therefore were liable to capture as British property.
Page 12 U. S. 322
Restitution was decreed in the district court, and the decree
was affirmed in the circuit court. An appeal was taken to this
Court, where the captors pray condemnation on the same grounds as
in the courts below.
Page 12 U. S. 327
MR. CHIEF JUSTICE MARSHALL, after stating the facts relating to
the several claims in this case, delivered the following opinion of
the court as to the claims of McKean & Woodland, Kimmel &
Albert, and John H. Browning & Co.
1. As to the claim of McKean & Woodland.
The question of property in this case depends on certain letters
written by Baily, Eaton & Brown which were found on board the
captured vessel. A letter of 11 July, 1812, addressed to Samuel
McKean, shows in the clearest manner that the property in dispute
was purchased and shipped for McKean & Woodland in pursuance of
their orders, and accounts for assigning it to Mr. Holladay.
There is nothing in the cause which can throw the slightest
suspicion on the fairness of this transaction. It unquestionably is
what, on the face of these letters, it purports to be -- a purchase
for McKean & Woodland, made in pursuance of their orders and
shipped for them to Robert Holladay because, in the moment of
shipment, information was received that their partnership was
dissolved, and the shipper had no instructions in what manner to
direct to them. In this situation, he considered himself as acting
most certainly for their advantage by addressing the goods to an
agent residing in the same town with McKean & Woodland, who
should receive them to their use. In such a case, the Court is of
opinion that the property was vested in McKean & Woodland, and
is consequently not liable to condemnation as enemy property.
The sentence is affirmed.
Page 12 U. S. 328
2. As to the claim of Kimmel & Albert.
From their letter it is apparent that in the event of war,
Baily, Eaton & Baily, reserved to themselves that power which
ownership gives over goods, and instructed their agent, McKean, in
what manner that power was to be exercised. There being no letter
addressed to Kimmel & Albert but under cover to McKean, it is
apparent that they were to know nothing of the shipment unless, in
the opinion of McKean, it should be prudent to make the
communication, and even then the property was to become theirs not
under the original contract, but under a new contract to be made
with McKean. The delivery on board the ship was a delivery to
McKean, not absolutely for Kimmel & Albert, but for them
provided they acceded to new and distinct propositions made by
Baily, Eaton & Baily. In such a case, no change of property
could take place till Kimmel & Albert should accede to these
new propositions, and the capture having taken place before the
contract was complete, the goods must be considered as enemy
property.
The sentence is reversed and the claim dismissed.
3. The claim of John H. Browning & Co.
This claim stands on precisely the same principles with that of
Kimmel & Albert. The documentary evidence is in effect the
same, and was enclosed in the same letter from Baily, Eaton &
Baily to Samuel McKean. The claim therefore must be dismissed.
The sentence is reversed and the claim dismissed.
JOHNSON, J. delivered the opinion of the majority of the Court
as to the claim of W. & J. Wilkins, as follows:
The points of distinction between this case and that of McKean
& Woodland, unfavorable to these claimants, are the
following:
1. That Harris the direct consignee, had a control given him
over the goods, which authorized him, had
Page 12 U. S. 329
he thought proper, to refuse to deliver them over to the
Wilkins'.
2. That Harris had also a power, under certain circumstances, to
make them his own.
3. That in the letters both to the Wilkins' and Harris, the
consignor alleges as his reason for making the shipment through
Harris his fears that this government would not protect British
property, thereby, as is contended, acknowledging this property to
be British.
On the other hand, it is a circumstance favorable to this claim
that the original bills of parcels were made directly to the
claimants, and were sent along with the shipment, as a substitute
for an invoice.
It is assumed as a postulate that a direct consignment on
account of the consignee, made in pursuance of his orders, is not
subject to condemnation as prize of war, and that it is immaterial
whether it be purchased for cash or credit or insured in the
enemy's country or elsewhere.
It will then be enough to show that every beneficial interest
which such a shipment would vest in the consignee was vested in the
claimants in this case.
The first difficulty arises from the circumstance that the bill
of lading was made out to Harris and not to the Wilkins', whereby
the captain of the ship became bound to deliver them to Harris or
his assigns.
Upon a fair view of the whole transaction, this distinction will
be found rather to be formal than real, and that it produces no
difference in the state of right between these parties.
The interest vested in the consignee by the delivery to the
captain is not absolute to all purposes. So far as relates to the
right of stoppage
in transitu, it continues subject to the
control of the consignor, and may be reduced by him into possession
before actual delivery, or the authority of the captain to deliver
them
Page 12 U. S. 330
according to the original bills of lading may be countermanded
and another destination given them.
Upon comparing all the circumstances of this case, it will be
found that the transaction was so arranged as to produce no other
change in the rights of the parties than to put it in Harris' power
to exercise this right of stoppage
in transitu, in case of
the insolvency of the Wilkins'.
The bill of lading is made out to Harris, which gave him the
right to demand the goods of the captain.
But the invoice, which has the additional strength of a bill of
parcels, is made out to the claimants, which gave them the right to
demand the goods of Harris.
Both in the letter to Harris and to the Wilkins', the shipment
is declared to be on account of the latter, and, in the letter to
the former, the shipper goes into a detail of his reasons for
giving the claimants so large a credit.
Thus these papers, taken together, place the interest of the
claimants on the same footing as if the bill of lading had been
made out to Harris for the use of the Wilkins', and in that case
there could have been little doubt that the claim must be
sustained.
If the invoice, although made out to the claimants, had been
enclosed to the direct consignee, it would have furnished a strong
argument in favor of the captor. But here, the evidence of right is
placed in the claimants' own hands, thereby acknowledging their
right in the goods shipped and furnishing them with the means of
asserting it. Thus the shipper could never have denied the rights
of the claimants in this case, for he had furnished the most direct
and conclusive evidence against himself.
But it is asserted that Harris had it in his power to make these
goods his own in defiance of the will of the claimants.
If this were the fact, it would only show that, in
Page 12 U. S. 331
either view of the alternative, it was a shipment on American
account, and that the shipper had parted with all his interest.
But the fact is not so, and in answering this argument we answer
the remaining one also.
The shipper knew what he was about. War was already probably
declared, and he was aware of the crash of mercantile credit which
generally follows on such an event. He also knew that in case of
asserting his right of stoppage
in transitu, the property
reverted and became British, in which case, as he expresses
himself, the property might be subjected to seizure as enemy's
property.
With these considerations on his mind, he makes out the bill of
lading to Harris and informs him that his object is to enable him
to keep the goods back in case of an alteration in the
circumstances of the claimants, and in this case only is the hint
given him that he may claim them as his own. It is contended that
he acknowledges in his letter to the claimants that the property is
British. But this is an error in fact. It was necessary to assign
some reason or some excuse for not having the bills of lading made
out to the claimants themselves. And for this reason he urges an
apprehension that our government would not protect British
property. But this reason could only be applicable in the event of
a stoppage
in transitu, as a direct shipment to the
claimants would have left no room for such an apprehension. In the
letter also to Harris it is said is contained an acknowledgment
that the property is British. This also is founded in mistake, for
the letter to Harris only communicates the reason which had been
assigned in the other letter for having the bill of lading made out
as it was. But suppose the passage in the letter to the claimants
on this subject had been full and explicit to the declaration of an
opinion that the property continued British, although shipped on
American account; yet this would have been but an expression of an
erroneous opinion, and certainly ought not, as far as the interests
of the claimants are concerned, to have an influence on the
decision of this Court. But it is asserted that the goods continued
on the whole voyage at the risk of
Page 12 U. S. 332
this shippers. This may be true and yet it does not prove
enough. Had the shipment been direct to the claimants and insurance
omitted contrary to order or custom, the shippers would have been
equally liable, and yet the property would not have been subject to
capture. It is enough for the purposes of the claimants that the
property in the goods had been transferred to them independently of
the control of the shipper or his agent, except so far as the right
to stop
in transitu interfered. And such was the situation
of the rights of the parties in this case. The goods ordered by the
claimants were shipped to an agent for their use, subject only to a
right which unquestionably, under any circumstances, existed in the
shippers. In their letter to the claimants, they enclose a bill of
parcels, by way of invoice, containing a positive acknowledgment of
the sale to them, and the letter itself as well as that to Harris,
speaks of the goods expressly as their goods. The immediate
consignee could therefore only be considered as the bailee of the
claimants. Nor does it appear that a tender of the money would have
been necessary to entitle them to receive the goods of Harris as,
in the letter of Harris it is acknowledged to be a sale on credit,
and particular discounts offered as an inducement for an early
payment.
Indeed there are words in the letter to the direct consignee
which amount to a positive declaration that the shipments were not
on his account nor on that of the shippers, but for the use and
benefit of others. "I shall send you, and our friends through your
hands, all the goods prepared for your market." By connecting these
words with the bills of lading, the result is that although the
direct consignee was entitled to demand the goods of the captain,
yet it was not to his own use, but to the use of the several
persons on whose account they were shipped.
Decree affirmed.
STORY, J. delivered the following separate opinion as to the
claim of W. & J. Wilkins.
I cannot concur in the opinion of the Court just delivered as to
the claim of the Messrs. Wilkins. It is true that the goods were
purchased pursuant to the orders of Messrs. Wilkins, but I do not
think that the
Page 12 U. S. 333
property, by the mere purchase, became vested in them, and the
usage and course of trade is generally otherwise. The purchase was
made with the money of the shipper, and until a delivery, actual or
constructive, to the Messrs. Wilkins, the propriety thereof
remained completely in the shipper. The goods were also shipped as
the property of the shipper, consigned to the agent of the shipper,
and not to the agent of the Messrs. Wilkins, to be delivered only
in case of the consignee's being satisfied of their perfect
solvency. It is true that the bill of lading purports that the
goods are shipped on account and risk of the consignee, but the
confidential letters explain the transaction and show that the
shipment was so made as a cover against belligerent risks and that
the property was not intended to be changed from the British
shipper in its transit. The delivery, then, of the goods on board
of a general ship was no delivery to the Messrs. Wilkins. It was
not even a delivery which vested the property of the goods in the
consignee. The legal property and possession thereof still remained
in the shippers, and if the goods had actually come to the hands of
Mr. Harris, his possession would have been but a continuation of
the possession of the shipper. In contemplation of law, the goods
were as much under the control and possession of the shipper as if
he had been on board the vessel during the voyage or had shipped
them in his own name. If they had been lost during the voyage, the
loss would have been his. He had not a mere right of stoppage
in transitu in case of insolvency, for that can be
exercised only where the property by the shipment is vested in the
consignee for his own use; but he had a perfect right of
countermand in all cases whatever. He might sell the property, give
it a new direction, control its delivery, and indeed exercise all
the rights of full dominion and propriety. It seems to me that if
the Messrs. Wilkins had neither a
jus ad rem nor a
jus
in re, and the latter only is recognized in prize courts, they
could not, by subsequent acts, overreach the legal rights of the
captors. At the time of the shipment and capture, it was in my view
enemy property liable to condemnation, having no neutral or
American onus attached to it. It was subject to the legal claims of
the creditors of the shipper, and nothing existed in the Messrs.
Wilkins but a mere
spes occupandi or, as the common law
phrases it, a mere possibility, which attached
Page 12 U. S. 334
neither to the substance nor the form of the thing. Upon what
ground, then, if I am right as to the ownership of the goods, can
the claim be maintained? The right of capture acts upon the
proprietary interest of the thing captured at the time of capture.
It is not affected by the secret liens or private engagements of
the parties. It repudiates even the strong claim of a bottomry
bond, because it is not a
jus in re. Can, then, a mere
possibility be of more consideration in a court of prize? The
absence of all authority to this effect, and the strong and
emphatic language of all the cases as to secret liens, speak as
powerfully as the most direct and pointed decisions against it.
There is a case cited by the court in
The Aurora, 4
Rob. 218, where property was shipped by a merchant in Holland to A.
a person in America, by order of B. and per account of B., but with
directions to A. not to deliver it unless satisfaction should be
given for the payment, and it was held as good prize on the ground
that the property still remained in the enemy shipper. This case I
think strongly in point, and the manner in which Lawrence attempted
to distinguish it from the case then on trial shows a full
concurrence in its correctness. The reasoning of the court in the
Aurora itself, and in the
Marianna, 6 Rob. 22,
are also illustrative of the general doctrine.
On the whole, I consider that, by the doctrine of the common and
the prize law, these goods were, at the time of capture, enemy
property and that the claim of the Messrs. Wilkins ought to be
rejected, and in this opinion I have the concurrence of two of my
brethren.
