The Schooner Andeline and Cargo

• Decision Date: 03 March 1815
• Citation: 13 U.S. 244,3 L.Ed. 719,9 Cranch 244
• Parties: THE SCHOONER ANDELINE AND CARGO
• Court: U.S. Supreme Court

13 U.S. 244

9 Cranch 244

3 L.Ed. 719

THE SCHOONER ANDELINE AND CARGO.

March 3, 1815

Absent. TODD, J.

THIS was an appeal from the sentence of the Circuit Court for the district of New York.

The American letter of marque, schooner ADELINE. sailed from Bourdeaux for the United States with a cargo, owned in part by citizens of the United States, and in part by Franch subjects. On the 14th of March, 1814, she was captured, in the bay of Biscay, by a British squardron, who put a prize crew on board and ordered her for Gibraltar. After being six days in the possession of the British she was re-captured, near Gibralter, by the American privateer Expedition, who put a crew on board and ordered her for the United States where she arrived and was libelled, with her cargo, by the re-captors, in the district Court at New York, as prize of war. The vessel was claimed by citizens of the United States residing therein, as was also part of her cargo.

Another part of the cargo was claimed by French subjects resident in the United States. Another part by French subjects, resident in France. Another part by citizens of the United States, resident in France. Another part by French subjects whose residence was not stated, and another part by citizens of the United States, whose residence was not stated, and another party by 'alien friends' without stating of what nation, or where resident. Some of the claims stated the property, at the time of capture to belong to the persons therein mentioned, and did not state to whom it belonged at the time of shipment.

The district Court condemned, as good prize, all the property owned by Frenchmen and other persons resident in France, and all the property of those persons whose residence was not stated; and restored all the property belonging to persons resident in the United States, upon payment of one sixth for salvage. The vessel was restored, by consent of parties, on payment of one half for salvage. The sentence was affirmed pro forma, by consent, in the Circuit Court.

The re-captors appealed as to the rate of salvage, which they contended ought to have been one half, and those Claimants, whose property was condemned, also appealed.

The case was submitted to the Court by J. WOODWARD, and EMMET, for the re-captors, and by IRVING, and D. B. OGDEN, for the Claimants, upon their written notes for argument.

J. WOODWARD, for the re-captors, made the following points:

1. That such claims as date the property from the time of capture, instead of the time of shipment, are insufficient and invalid.

2. That the re-captors are entitled to the whole of the French property, by the rule of reciprocity.

3. That the captors are entitled to a rate of salvage of one half upon the American property, or such other and higher rate than the rate decreed in the Courts below, as this Court may adjudge.

4. That the re-captors are entitled, by the same rule of reciprocity, to the whole of the property of such Americans as were at the time of capture domiciled in France, or resident there for commercial purposes.

5. That the re-captors are likewise entitled to all property the national character of which is not defined by the evidence.

6. That the property of those Frenchmen who are described as having a mere temporary residence in the United States, cannot be considered as American.

7. That the property of persons described as alien friends, without mentioning to what nation they belong or where they reside, must also be taken to be French, or decreed to the captors for uncertainty.

8. That the persons described in the claims as citizens of the United States, without stating their residence at the time of shipment, or at any other time, must, under the circumstances of the case, be considered as residing in France.

There are claims which date the property from the time of capture. This we say is insufficient. The claims should state the property from the time of shipment at least. This necessary to prevent transfer in transitu, and to give effect to, and preserve the simplicity and dispatch of the preparatorio investigation,- An important question in this case is, what is to become of the American part of the cargo of an armed American vessel, re-captured by an American private armed vessel?

The re-captors in the first place contend that the part of the cargo above mentioned is casus omissus as to the act of congress of the 3d of March, 1800.

If the Court should decide that there is a casus omissus then the fate of this part of the cargo will depend upon the common law.

The re-captors contend that the common law is that if property so situated has remained twenty-four hours in possession of the enemy of the captured party, they are entitled to the whole of the property as prize of war. To this they cite Grotius de jure belli ac pacis, lib. 3, ch. 16. Vattel book 3, ch. 13, § 196. This right upon recapture is here clearly laid down to privateers to be divested only by the laws of each state and treaties. Our treaty with France is silent except as to restoration on capture by pirates; this being ex delicto there is no change of property by the original capture. See also professor Marten's summary of the law of nations, book VIII, ch. 3, § 10. 'In order to encourage privateering those concerned in it are allowed to hold all the merchant vessels and merchandize they take from the enemy or his subjects without any reserve whatsoever with respect to the redemption of them by the proprietor.'

The only remaining question on this point would be what kind of possession consummates the right of the privateer. Twenty-four hours possession has been considered 'firm' possession, and sufficient to consummate this right by an almost common usage, and recognized by almost all the treaties of maritime powers. 1 Rob. 151, Amer. ed. 2 Azuni, 306, 308, 312, in a note 275, 276, and 282.

If the above considerations are inapplicable and the salvage of this part of the cargo is governed by the acts of congress, then by those acts, the re-captors are entitled to one half.

The unqualified right of the privateer to the property captured, or re-captured, is, after firm possession, clear at common law, and the doctrine of taking away that right by salvage is derogatory to that law. If this be so, the act of congress is derogatory to the common law, and must be liberally construed in favor of privateers.

The reward has always been out of the whole subject matter; the cargo as well as vessel and armament; and it is with confidence contended that a separation of the cargo so as to subject it to one sixth salvage, while the vessel and armanent affords one half, is, if it exist at all, anomalous to the act of the 3d of March, 1800, and at war with the usage and treaties of all maritime states.

The reason of encreasing the salvage upon an armed vessel is the merit of battle, and it is evident that the cargo is as well won by battle as the armament and vessel.

But if the whole of the act of congress be to be taken together, and the 2d section be permitted to reflect a light upon the 1st section, it will appear that congress could have had no other meaning than that the salvage should be increased upon the cargo as well as the vessel and armament. In the second section where they give a salvage upon their own property thus captured by a private armed vessel, they give one half of the goods on board as well as of the vessel and armament.

But should not the cargo be considered as a mere incident to the vessel and follow its fate and character?

As to the French property we are entitled to the whole as prize of war by the foregoing rule of twenty-four hours possession which is the rule in France. Reciprocity is the rule in this case. See the act of 1800, section 3.

The twenty-four hour rule is established in France by ordinance of 15th June, 1779, with respect to all re-captures by privateers. France, in her treaty with Holland, 1st May, 1781, secures the twenty-four hour right to privateers. The Court will find those acts of France referred to in 2 Azuni, 276 and 282. 2 Dallas, 2, Miller et. al. v. ship Resolution. This is a strong case establishing the twenty-four hour right. It refers to an ordinance of congress declaring this rule as to us, and refers to the French ordinance to the same point. It admits the twenty-four hour rule, but excludes its application to that case, that being the case of a neutral capture which conveyed no right. See also the case of the Mary Ford, 3 Dall. 188, M. Donough v. Dannery.

On the right of the re-captors on the 4th point of the case they will not enlarge by argument, as they consider it well established; nor on that of the 5th point than merely to observe that it appears to be just, ex necessitate, and comes under the description of confusion in the civil law; nor as to the 6th point than to observe that there is no standard by which a character can be reflected upon these Claimants but the voyage itself; which makes them either American or French. The description of the claim negatives the idea of their being American; they must, of course, be French. The 7th point must meet the same construction for the same reason.

As to the principle contended for in the 8th point of the case, it may be remarked, for elucidation, that some of the Claimants, described as in this point, turn out, by the evidence, to be resident in France for commercial purposes.

Is the owner of the vessel entitled to freight exclusive of salvage?

The re-captors say the vessel is not entitled to freight because she would have been condemned had she been brought into England. But if entitled to freight, the captors have saved that freight, and are therefore entitled to one half as salvage. Freight may remain, after all the rights of the captors are deducted, to be adjusted between the vessel and the freighters.

This question can only apply to the American part of the cargo; for as to the French, the rule is to...