James Sheppard and Others, Appellants v. Lemuel Taylor and Others, Appellees

Decision Date01 January 1831
Citation30 U.S. 675,8 L.Ed. 269,5 Pet. 675
PartiesJAMES SHEPPARD AND OTHERS, APPELLANTS v. LEMUEL TAYLOR AND OTHERS, APPELLEES
CourtU.S. Supreme Court

The facts of the case, as they appeared in the libel and supplemental libels, petition, and in the depositions and documents filed and taken in the case, were: that the ship Warren, of the burthen of about six hundred tons, and armed with twenty-two guns, commanded by Andrew Sterrett, sailed from Baltimore on the 12th of September 1806. The crew, including the officers and apprentices, consisted of about one hundred and twelve persons, and were shipped for a voyage designated in the shipping articles, to be from the port of Baltimore to the northwest coast of America, thence to Canton, and home to the United States. No other voyage but that expressed in the articles was known to be intended by any one on board of the Warren, except Mr Pollock, who was the supercargo of the vessel. There were, however, two sets of instructions; one, those which expressed the voyage as stated, and which were given to captain Sterrett; the other, sealed, private instructions, and which were delivered to Mr Pollock.

When the ship arrived at a certain latitude, the sealed instructions were opened, and were communicated to the captain. These instructions changed the destination of the ship, and the nature and character of voyage. They gave the entire control over the course of the voyage to Mr Pollock: and from that time she proceeded directly for the coast of Chili, to prosecute an illicit and smuggling trade with the Spanish provinces, on the western coast of South America; all trade with those provinces being then notoriously forbidden, under heavy penalties, unless conducted under a license from the crown of Spain.

The officers and crew of the Warren protested against this deviation from the prescribed voyage; and captain Sterrett, from disappointed and wounded feelings, disdaining himself to engage in an illicit trade, and unwilling to expose his officers and men to its perils and consequences, became partially deranged, and shot himself as the Warren was doubling Cape Horn.

Mr Evans, the chief mate, succeeded in the nominal command of the ship; but Mr Pollock asserted and maintained the entire control over her; and he ordered her to steer direct for Conception Bay and the port of Talcahuana, on the coast of Chili, where they were to feign distress, and ask for an asylum.

The vessel arrived on the 20th of January 1807, within a short distance of that port, after an absence from Baltimore of one hundred and twenty days; and on her arrival was hailed by the guarda costas of the government. Mr Pollock answered in Spanish, and took the ship's papers with him on shore, where he had an interview with the commandant of Talcahuana.

During his absence an altercation took place between captain Evans and the Spanish armed vessels, which resulted in the exchange of some guns, but no lives were lost on either side. Mr Pollock having remained on shore under a flag of truce, on the following day communicated by a verbal message to captain Evans, an order to enter the port; alleging, that the firing on the Warren by the guarda costas had been through mistake, and that all things would be well managed. The crew remonstrated, and proposed to proceed with the ship on the voyage for which they had sailed, and to leave the supercargo on shore. Captain Evans refused to enter the port, unless by a written order, which was then sent to him; and he was informed by the messenger that Mr Pollock was under no restraint whatever.

The Warren then entered the port of Talcahuana, and captain Evans went on shore; and the seamen, under a pretence that their depositions were required relative to the death of captain Sterrett, were taken on shore, twenty at a time, and at once put into prison. The officers and the apprentices being put on board the ship, proposed to rescue her, and communicated the purpose of Mr Pollock, who immediately took his baggage and that of captain Evans on shore. Soon afterwards some Spanish officers came on board the Warren, unbent the sails, and unshipped the rudder.

The officers and crew of the ship were ordered to Conception, and thence were marched to various prisons and dungeons, and suffered captivity from eight months to four years, being permitted to return to the United States at various periods. The apprentices and some of the officers were the first who were allowed to return; their absence from the United States was after an imprisonment of from six to eighteen months.

On the part of the libellants it was alleged that by arrangements between the Spanish commandant and Mr Pollock, the cargo was smuggled on shore. By a sentence of a court the vessel and cargo were sold, and the proceeds of the same were ordered to be deposited in the king's treasury, subject to an appeal interposed by the supercargo. Thus, either by the private arrangements between Mr Pollock and the Spanish governor, or by the proceedings of the court, the voyage was broken up, and the ship and the whole of the cargo were sold. The cargo appeared to have been peculiarly adapted to the coast of Chili and Peru, and altogether unfit for the northwest coast of America or Canton.

The libellants claimed wages from the time of the sailing of the Warren, to the time of their return to the United States, respectively; deducting the wages advanced, and any sum of money, received as wages, during absence.

The proceedings in the case, asserted by the libellants to be amply accounted for by various causes, were delayed from 1810 to 1819. In 1819 all the owners became insolvent: and, on the 13th December 1819, Lemuel Taylor assigned to Robert Oliver the spes recuperandi of his interest in the Warren, her cargo, & c. On the 9th of November 1820, Smith and Buchanan assigned their interest in the Warren and cargo to Elicott and Meredith, trustees, for the use of the Bank of the United States at Baltimore: and, on the 15th of May 1821, Hollins and M'Blair assigned their interest in said vessel, cargo, &c. to the Union Bank of Maryland.

The owners of the ship Warren and cargo, having made application to the crown of Spain for the restoration of the proceeds of the same, which were under the decree of the court condemning the same to be deposited in the royal treasury; the following proceedings took place:

COPY OF THE ROYAL ORDER OF RESTITUTION.

Most Excellent Sir:—In the month of September 1806, the ship called the Warren, belinging to Samuel Smith, Buchanan, Hollins, M'Blair, and Lemuel Taylor, of Baltimore, sailed from that port, under the command of Andrew Sterrett, and laden with sundry merchandize for Canton in China. In the month of December following, after the vessel and crew had experienced various misfortunes, they were in the latitude of Conception in Chili; when finding it impossible to continue the voyage, they were obliged to take shelter in some port contiguous to that of Talcahuana, on the 20th January 1807. The commander of the port gave the vessel permission to enter, which she had scarcely done, however, before she was taken possession of by troops, and her cargo seized, under the pretence of her being a smuggler. This was followed by a sentence for the confiscation and sale of the goods; which was carried into execution, notwithstanding the protest of the supercargo; and the proceeds, amounting to about three hundred thousand dollars, deposited in the royal chests, to await the decision of the appeal carried before and received by the supreme council of the Indies. Smith and his partners having received intelligence of this, made a complaint before the senate in Maryland; who looking only to the registers of the custom house, from which it appeared that the vessel had cleared out for China; declared the confiscation unjust, and gave the complainants permission to detain by way of indemnity, any property which might be in that country belonging to the Spanish government. Don Luis de Onis, the Spanish minister in the United States, received unofficial information of this decision; and knowing that there had not been sufficient cause for the sentence of confiscation, and desiring to prevent the disagreeable consequences which might arise from claims; made an agreement with Smith and his companions, that he would cause to be returned to them in this capital, the amount of the proceeds of the cargo of the ship Warren, which had been deposited in the treasury: and that he would permit then to send out a vessel, laden with a small cargo of licit merchandize and some tobacco, upon which the customary royal duties were to be paid, for the purpose of prosecuting it; upon which they were to acknowledge themselves indemnified for all the losses and expenses resulting from the voyage. The king, having been gradually informed of what has been related, notwithstanding that the ministry here had received no intelligence of the confiscation in question, has thought proper for good and prudential reasons to ratify without delay the agreement made by the minister Onis with Smith, Buchanan and their companions; and has desired that instructions should be sent to your excellency, to have the ship Warren and her cargo, or the amount produced from their sale, delivered to the agents of those persons; and to permit them to import another small cargo of licit merchandize, and some leaf tobacco, upon which they must pay the royal duties, and take the value of it in silver or...

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