Cushing v. Laird Foster v. Cushing

• Decision Date: 05 March 1883
• Citation: 27 L.Ed. 391,2 S.Ct. 196,107 U.S. 69
• Parties: CUSHING and another v. LAIRD, Jr., and others. FOSTER and another v. CUSHING and another
• Court: U.S. Supreme Court

107 U.S. 69

2 S.Ct. 196

27 L.Ed. 391

CUSHING and another v. LAIRD, Jr., and others.

FOSTER and another

v. CUSHING and another.

March 5, 1883.

J. Langdon Ward and R. D. Benedict, for Cushing and others.

James Thomson, C. Van Santvoord, A. J. Vanderpoel, and J. H. Ashton, for Laird, and Foster & Thomson.

GRAY, J.

This is a libel in admiralty, filed in the district court for the southern district of New York by John N. Cushing and others against John Laird, Jr., to recover damages for the destruction of the libelants' vessel, the Sonora, by the Alabama. The defendant was not found and never appeared in the cause, and his credits and effects were attached in the hands of Foster & Thomson, garnishees.

The garnishees answered that they had in their hands a fund amounting to $31,441.62, known as the proceeds of the steamer Wren, which was the property of Charles K. Prioleau, and not of Laird. Upon the trial of the issue raised by this answer, the district court, in April, 1873, adjudged that the fund belonged to Laird, and ordered the garnishees to pay it into court. See 6 Ben. 408. From that decree the garnishees appealed to the circuit court. The district court afterwards, in September, 1873, entered a decree in favor of the libelants against Laird for the sum of $143,298.70, and costs, 'and that the libelants have execution thereon, to satisfy this decree, against the property of the said respondent, and especially against his property, credits, and effects in the hands of Foster & Thomson, garnishees.' From this decree also the garnishees appealed to the circuit court. The circuit court dismissed the first appeal, and retained the cause for hearing on the second appeal only; and, upon consideration, entered a decree by which it was adjudged that the fund in the hands of the garnishees was not the property of Laird, and could not be subjected to the payment of the decree against him, the attachments against the garnishees were discharged, and both decrees of the district court, so far as affected them and the fund in their hands, were reversed, with costs. See 15 Blatchf. C. C. 219. The findings of fact by the circuit court are printed at length in 15 Blatchf. C. C. 220-236, and, so far as they are material to be stated, are as follows:

The steamer Wren was built at Birkenhead, England, in 1864, by Laird Bros., and was registered on the twenty-fourth of December, 1864, at Liverpool, in accordance with the laws of Great Britain, in the name of John Laird, Jr., as owner; a certificate of the registry was issued in due form; the vessel sailed from Liverpool, having the certificate on board as part of her ship's papers, and it did not appear that she ever again entered a British port. On the third of January, 1865, after she had left Liverpool, Laird executed to Charles K. Prioleau, of Liverpool, a member of the firm of Fraser, Trenholm & Co., for the consideration of £15,450, a bill of sale of the vessel, which, on the first of May, 1865, was duly entered at the custom-house in Liverpool, and the vessel registered in the name of Prioleau as owner. On the thirteenth of June, 1865, on the high seas, on a voyage from Havana to Liverpool, by the way of Halifax, Nova Scotia, some of the crew took forcible possession of the vessel, overcame her officers, ran her into Key West, and there delivered her to the naval authorities of the United States.

On the sixteenth of June, 1865, the attorney of the United States for the southern district of Florida filed in the district court for that district an information against the vessel as prize of war. She was taken into the custody of the marshal, and a monition issued to all persons interested to appear on the twenty-seventh of June and show cause against a decree of condemnation. On the twenty-sixth of June, Edward C. Stiles, master of the vessel, appeared in court and filed a claim, stating that he was the master, and, as such, the lawful bailee of the vessel, and claimed the same for the owner thereof; and that Laird, a British subject, residing the England, was the true and bona fide ower of the vessel, and that no other person was the owner thereof, as appeared by her register in the possession of the court, and as he was informed and believed; denying that she was a prize of war, and praying restitution and damages.

The only certificate of registry found on board was that granted on the twenty-fourth of December, 1864, upon which were noted, at the British consulate in Havana, changes of masters on the twenty-fourth of March and the tenth of June, 1865, and at the foot of which was the following: 'Note. A certificate of the registry granted under the merchant shipping act, 1854, is not a document of title. It does not necessarily contain notice of all changes of ownership, and in no case does it contain an official record of any mortgage affecting the ship.'

On the seventeenth, nineteenth, and twentieth of June, 1865, the depositions of the master and other officers of the vessel were taken in preparatorio, and on the twenty-seventh of June the court proceeded to hear the case upon the allegations and pleadings, the depositions taken in preparatorio, and the papers, letters, and writings found on board the vessel. On the twenty-ninth of June the court, of its own motion, directed the prize commissioner to take immediately the testimony of the officers, and of any other witnesses who might be produced by the claimants from persons on board the vessel, upon specified interrogatories; of two persons named, and any others on board produced by the captors, upon some of the same interrogatories; and of any witnesses, produced either by the captors or the claimants from persons not on board, upon certain other interrogatories; and allowed two days to the parties to produce witnesses. Under this order testimony was taken; and on the third of July the court resumed the hearing upon the allegations and pleadings, the depositions taken in preparatorio, the papers found on board, and the depositions taken under the order allowing further proof.

The court, on the eighth of July, announced its opinion, condemning the vessel, but, on account of exceptions taken to some rulings, delayed making a decree in form until the fifteenth of August, when it was duly entered, reciting that a claim had been interposed by the master in behalf of Laird, that the case had been heard as aforesaid, and that it appeared to the court that the Wren was, at the time of capture, the property of enemies of the United States; and adjudging her to be condemned and forfeited to the United States as lawful prize of war, and to be sold by the marshal, and the proceeds to be deposited with the assistant treasurer of the United States, subject to the order of the court. From that decree the claimant, on the same day, appealed to this court. The vessel was afterwards sold, and the proceeds of the sale deposited with the assistant treasurer.

Prioleau still resided in England, and it did not appear that he had any actual knowledge of the proceedings for the condemnation until after the entry of the decree. He afterwards retained Foster & Thomson, the garnishees in this case, attorneys and counselors at law in the city of New York, to do whatever might be necessary for the protection of his interests; and they procured a copy of the record of the district court and had the appeal docketed in this court, employed additional counsel, who argued the case here on the record sent up. No additional testimony was taken, and no change in the pleadings made or applied for. Upon the argument in this court, the counsel for the United States insisted that it appeared from the evidence that the vessel, at the time of the capture, was the public property of rebel enemies, and, in support of this position, referred to the testimony of witnesses who swore that Fraser, Trenholm & Co. were her owners. The counsel for the appellant insisted that there was not a particle of evidence that she was ever enemies' property, but that the evidence was conclusive that she was at all times the property of Laird, a British neutral. This court, at December term, 1867, reversed the decree

of the district court, and remanded the cause, with directions to restore the vessel to the claimant, without costs. Mr. Justice NELSON, in delivering the opinion, said that the only question in the case was whether the vessel was the property of enemies of the United States; and, in discussing this question, observed that upon the proofs that the claimant built the vessel and put the master in command in this, her first voyage, the presumption would seem to be very strong, if not irresistible, (nothing else in the case,) that he continued the owner for the short period of six months that elapsed after she was built and before the seizure took place; that in addition to this she was in command of a master claiming to represent Laird as owner; that these acts, in connection with the registry, afforded strong evidence that the title of the vessel was in the claimant; and that, although it was not unnatural to suspect, from the surrounding facts and circumstances, that the so-called confederate states or their agents had some interest in or connection with her, there was no sufficient legal proof that they owned the vessel.

After that decree of this court, Foster & Thomson made and sent to Prioleau a draft of a power of attorney to be executed by Laird and by Stiles and in due time received from Prioleau the power so executed, authorizing Foster & Thompson to receive from the United States, or from any officer or depo itary thereof, restitution of the proceeds of the sale of the Wren; and obtailed a mandate from this court, and sent it, together with a copy of their authority, to the attorney of the United States for the southern district of Florida, requesting him to see the appropriate decree entered and a draft upon the assistant treasurer in New...