Case of capture by an armed vessel fitted out in the ports of
the United States in breach of the neutrality acts. Claim by an
alleged
bonae fidei purchaser in a foreign port rejected,
and restitution decreed to the original owners.
A
bonae fidei purchaser, without notice, in such case
is entitled to be reimbursed the freight which he may have paid
upon the captured goods, and the innocent neutral carrier of such
goods, the same having been transshipped in a foreign port, is
entitled to freight out of the goods.
Page 22 U. S. 659
This was the case of a libel filed by the Consul-General of
Portugal on behalf of certain Portuguese subjects, owners of a
number of hides which had been brought from St. Thomas to Baltimore
in the brig
Fanny. The facts proved in the cause which the
court considered to be material are the following:
Sometime in the year 1817, Robert M. Goodwin, Clement Cathill,
James Halsey, and John R. Mifflin, all of them citizens of the
United States and denominated "The American concern," fitted out,
at Buenos Ayres, a brig, called
La Republicana as a
privateer to cruise against the subjects of Spain and Portugal
under a commission obtained for her from Jose Artigas. Thus
prepared, she sailed under the command of Obadiah Chase, also a
citizen of the United States, and in February, 1818, she captured
the Portuguese brig
Aurora, which, with her cargo, were
sent to St. Barts, and there sold as American property for about
20,000 dollars. With this money, thus raised, Goodwin proceeded to
Baltimore, and there invested it in the purchase of a new brig,
called the
Athenea, which had been lately built at that
port. Having changed her name to that of the
New
Republicana, both privateers shipped their crews at Baltimore,
together with their munitions of war, except the cannon and
carriages for the latter vessel, which, with a view of deceiving
the custom house officers, were put on board of a small schooner
and were transferred to this privateer a few miles below the
�22 U.S. 66O� fort. The commission, together with
other papers belonging to the
Republicana, were delivered
to the
New Republicana, and both the privateers proceeded
to sea, the latter under the command of the above mentioned Clement
Cathill, one of the owners. She soon after fell in with the
Portuguese ship
Don Pedro de Alcantara, laden with a
valuable cargo of hides, sugar, &c., which she captured on 22
September, 1818, and ordered in to the Five Islands, there to await
the orders of Goodwin. At this place, Goodwin transshipped the
principal part of the cargo into several small vessels, which
proceeded to the Island of St. Thomas consigned to Souffron &
Co., merchants of that place. The residue of the cargo, except a
small part which was afterwards taken, together with the Don Pedro,
by Commodore Jolly, commanding a squadron belonging to the Republic
of Colombia was also carried by Goodwin to St. Thomas in the old
privateer, at which place it is probable the whole or a great part
of the captured property was sold. Nathaniel Levy, the American
consul at that island, purchased 4,004 of the hides, which,
together with 555 logs of lignum vitae, he shipped in the brig
Fanny to Baltimore, where she arrived in January, 1819,
consigned to Lyde Goodwin. On the 21st of this month, the hides and
lignum vitae were libeled as Portuguese property, illegally taken
on the high seas, and on the 27th of the same month the lignum
vitae was released from the operation of the libel.
To this libel a claim was filed by Lyde Goodwin, as agent of
Levy, in which it is asserted that
Page 22 U. S. 661
the hides had been purchased by Levy, in the regular course of
trade, from Souffron & Co., and all knowledge of the matters
alleged in the libel is denied. On 15 March the hides were
delivered upon stipulation, having been appraised at the sum of
$12,000.
In the progress of the cause in the district court, the owners
of the brig
Fanny presented to the judge a petition
setting forth that on 6 October, 1818, Nathan Levy entered into a
charter party of affreightment with the petitioners for the brig
Fanny, on certain terms stated in the petition, for a
voyage from Baltimore to St. Lucie, and if required, to three other
ports in the West Indies, and thence back to Baltimore. That under
this charter party, the said brig took in a cargo at Baltimore and
sailed to St. Lucie and to three other ports, and finally delivered
the cargo to the said Levy, who afterwards shipped on board the
said brig, at St. Thomas, 4,000 hides and 555 sticks of lignum
vitae, to be carried to Baltimore, where she arrived on 17 January,
1819. That upon her arrival and when the master was about to
deliver the cargo to the consignee of Levy, this libel and claim
were filed, and the cargo was taken from the possession of the
master by the marshal under the process of the said court. That
there was then due to the petitioners on the said charter party the
sum of $2,094.50, as admitted by the said Levy, which they pray may
be paid out of the proceeds of the hides and lignum vitae. This
petition was accompanied by an account dated 28 December, 1818,
Page 22 U. S. 662
signed by Nathan Levy, acknowledging a balance of $2,094.50 to
be due the said brig
Fanny on the charter party. Below
this account is the following entry, not signed by any person: "The
freight on the homeward cargo, consisting of 4,004 hides and 555
sticks of lignum vitae, $1,047.25." The court made an order that
the agent of the claimant should pay the freight on the above goods
to the amount of $1,047.25.
The district court decreed the claimants to pay to the libellant
the appraised value of the hides, as mentioned in their
stipulation, together with interest and costs, after deducting the
amount of freight theretofore ordered to be paid. This decree being
wholly affirmed by the circuit court upon an appeal, both parties
appealed from that decree to this Court.
Page 22 U. S. 667
MR. JUSTICE WASHINGTON, delivered the opinion of the Court, and
after stating the case, proceeded as follows:
The above case presents two questions for the consideration of
this Court. 1. Whether the court below was correct in restoring to
the Portuguese owner that part of the cargo of the
Fanny
which was restored? and 2. whether the freight which was ordered by
the court to be paid to the owners of that vessel ought in whole or
in part to have been deducted from the appraised value of the
hides?
Upon the first question it is to be observed that the facts
above stated are incontestably proved by the evidence in the cause.
That the capturing vessel, the
New Republicana, was built
at Baltimore,
Page 22 U. S. 668
purchased at that place by citizens of the United States, and
there manned and fitted for sea, armed and equipped as a vessel of
war, within the waters and jurisdiction of the United States, and
with such equipments left the United States to cruise against the
vessels and property of Spanish and Portuguese subjects on the high
seas, and upon such cruise captured the
Don Pedro de
Alcantara, with a valuable cargo belonging to Portuguese
subjects were facts too clearly proved to be questioned; nor were
they questioned by the counsel for the claimants. It is established
by evidence equally clear and uncontradicted that the 4,004 hides
which were brought in the
Fanny from St. Thomas to
Baltimore, upon which the sentence of the court below operated,
formed a part of the cargo of the
Don Pedro de Alcantara
at the time of her capture, and that they were the property of
Portuguese subjects.
This, then, is the case of property belonging to the subjects of
a friendly power, captured on the high seas by a privateer owned
and commanded by citizens of the United States, fitted and equipped
as a vessel of war, within the waters and jurisdiction of the
United States, and according to the uniform decisions of this Court
in similar cases as well as in others where similar equipments have
been made within the waters of the United States by foreigners, the
property so illegally captured and brought within our jurisdiction
must be restored to the original owners unless it could be
maintained that the sale of it to the claimant divested those
owners of their right
Page 22 U. S. 669
to the same. But it is to be remarked in the first place that
the asserted purchase of these hides by Levy is unsupported by any
evidence whatever. He alleges in his claim that he purchased the
hides for a valuable consideration from Souffron & Co. in the
regular course of trade, but this allegation is not upheld by any
written document or by the testimony of a single witness. The cause
was depending more than two years in the courts below, during all
which time it was fully in the power of the claimant, a resident of
the Island of St. Thomas, to have proved the reality of this
purchase by the testimony of the vendors or otherwise if the fact
had been as it was alleged.
But admitting the truth of the asserted sale to Levy, he was
nevertheless a purchaser from the agent of a tortious possessor of
property to which he had no title whatever, and who consequently
could transfer none to his vendee. The proceedings in the
vice-admiralty court of Margarita by Commodore Jolly, against the
Don Pedro de Alcantara and the small part of her cargo
which had not been transshipped at the Five Islands, so far from
amounting to a sentence of condemnation, even of the property
libeled as prize of war, proceeded upon the ground of a recapture
from a noncommissioned privateer, for which the recaptor was
rewarded by a liberal salvage, and the residue of the sales of the
property was decreed to the Portuguese owners in case they should
claim the same within the period of a year and a day. This Court is
therefore of opinion that
Page 22 U. S. 670
the decree of the circuit court, so far as it restores to the
libellant the 4,004 hides or their proceeds, is right and ought to
be affirmed.
The second question respects the freight, which the decree of
the court below ordered to be deducted from the appraised value of
the hides, and it is attended by no difficulty but such as arises
from the confined and imperfect statement of the facts appearing in
this record. That the freight of the lignum vitae, which did not
belong to the libellants and against which the proceedings were
abandoned, ought not to have been paid out of the proceeds of the
hides is a matter which we think is quite too clear to be disputed,
and we think it probable that the mistake was occasioned by an
oversight in the judge of the district court, from his not knowing
or recollecting, when the petition for freight was before him, that
the lignum vitae had been released from the operation of the libel.
The decree, then, must of course be reversed for this reason and
the cause remanded for further proceedings in order to ascertain
and separate the freight upon that article from that due upon the
hides.
But there is apparently error in the decree in respect to the
whole of the freight, which it is possible may be explained and
removed by a further examination of this subject in the court
below. The petition for freight claims the precise sum of
$2,094.50, as the balance acknowledged to be due by the claimant,
and the account, signed by him on 28 December, 1818, which
accompanied the petition, amounted
Page 22 U. S. 671
to an acknowledgment that that sum was then due. The items of
that account are, freight on 1,095 barrels of flour, out and home,
per charter party, 5 cases of furniture, 36 bags of corn, and 7
days demurrage. Below that account is stated the freight due upon
the hides and lignum vitae, amounting to $1,047.25. It would seem,
therefore, as if the freight upon the hides and lignum vitae, which
arrived in Baltimore some time in January, 1819, was not included
in the account signed by the claimant, and if so, it was not
claimed to be due, nor required by the petition to be paid. Yet the
order of the court was that it should be paid, and it was
accordingly deducted from the appraised value of the hides. If the
case should turn out to be such as is above supposed, it would seem
to warrant the conclusion that the freight upon the hides had been
paid by Levy, in which case it ought not to be deducted from their
appraised value unless the reality of the asserted purchase of the
hides by Levy should be made to appear to the satisfaction of the
court below, without which we are of opinion that he is to be
considered as a
malae fidei possessor, and consequently as
not entitled to be reimbursed the freight so paid out of the
property of the Portuguese owners. If, on the other hand, it should
appear that the claimant was a
bonae fidei purchaser of
the hides without notice, or that the freight upon them had not
been paid by him to the owners of the
Fanny, then it was
properly deducted.
Page 22 U. S. 672
DECREE. This cause came on to be heard, &c., on
consideration whereof it is DECREED and ORDERED that so much of the
decree of the said circuit court as orders that the claimant pay to
the libellant the appraised value of the hides in the proceedings
mentioned, together with interest and costs of suit, be and the
same is hereby affirmed with costs, subject, however, to such
deduction for freight as the said circuit court may hereafter
direct, to be paid out of said appraised value, as may be hereafter
decreed under the further proceedings in this cause. And as to so
much of said decree of said circuit court as directs the amount of
freight to be deducted, agreeably to the previous order of said
circuit court, the same is hereby reversed and annulled. And it is
further ORDERED that said cause be remanded to the said circuit
court for further proceedings to be had therein according to law
for the purpose of ascertaining upon further proof whether the
claimant had paid the freight of the hides to the owner of the
Fanny; and if so whether the claimant was a
bonae
fidei purchaser of said hides without notice. And if the said
court should be satisfied from such further proof that the said
claimant Nathan Levy has paid the owner of the
Fanny for
said freight or that he was not such
bonae fidei purchaser
without notice, then with instructions not to allow a deduction of
freight from the said appraised value. But if the said claimant was
such
bonae fidei purchaser without notice or if said
freight had not been paid by said claimant to
Page 22 U. S. 673
the owners of the
Fanny, then the freight for the
hides, excluding the freight on the lignum vitae, to be deducted
from the appraised value of said hides.
