MCDONOUGH V. DANERY AND SHIP MARY FORD

Decision Date01 January 1796
Citation3 U. S. 188
CourtU.S. Supreme Court

ERROR TO THE CIRCUIT COURT FOR

THE DISTRICT OF MASSACHUSETTS

Syllabus

A merchant ship, the property of subjects of the King of Great Britain, was captured on the high seas by a French squadron, a prize master and crew put on board of her, and she remained in company with the captors upwards of twenty-four hours, when she was left by the prize master and the crew, frequent ineffectual attempts having been made to set her on fire. She was found, deserted and abandoned, by an American vessel bound on a European voyage, and by the mate and part of the crew brought into Boston. A claim was made to her by the British consul for the original owners and by the French consul for the captors. Salvage, amounting to one-third of the gross proceeds of the sales of the ship and cargo, was decreed to the owners, master, and crew of the American ship, and the residue of the proceeds was ordered to be paid to the French Republic or those concerned in the capture.

This was a writ of error to remove the proceedings and decree from the Circuit Court for the District of Massachusetts, and, the record being returned, exhibited the following facts:

On 4 November, 1794, the owners and crew of the ship George filed a libel in the District Court of Massachusetts in which they set forth:

That the said ship George was an American vessel, owned and navigated by American citizens, loaded with a very valuable cargo, principally on freight, and bound from Virginia for Rotterdam, and that on the second day of October last, on the high seas, in latitude 44? and longitude 40?, they fell in with the ship Mary Ford, which they found utterly deserted and abandoned, without any person on board and in a most perilous state. That the captain and crew of the said ship George took possession of the Mary Ford, and with the intention of saving the said ship and her cargo, the mate and three of the said crew entered on board the Mary Ford and at great peril of their lives, and suffering great hardship, with the assistance of two men from a fishing vessel, whom they hired, brought her into the port of Boston, whereupon they pray that the said ship and cargo may be adjudged to them.

On 5 November, 1794, Thomas McDonough, Esq., Consul of his Britannic Majesty for the States of Massachusetts, Rhode Island, Connecticut, and New Hampshire, filed a claim in the District Court of Massachusetts and suggested that the ship Mary Ford and her cargo, at the time she was taken possession of by the crew of the ship George, was and now is owned by certain merchants, subjects of his said Britannic Majesty, and prayed that the same might be delivered to him in behalf of said owners on the payment of a reasonable salvage

Page 3 U. S. 189

or, if sold, that the proceeds thereof might be delivered to him in behalf of said owners, deducting therefrom such salvage, with costs and charges.

On 2 December, 1794, J. B. Thomas Dannery, citizen and Consul of the French Republic, resident at Boston, in behalf of said Republic and the citizens thereof immediately concerned, likewise filed a claim for the said ship Mary Ford and her cargo and suggested that the said ship and her cargo, on 28 September last, were the property of some of the subjects of the King of Great Britain, and afterwards, on the same day, between two and three o'clock in the afternoon, on the high seas, were attacked, subdued, and taken by a squadron of ships, to-wit, the Filaburtier, Charant, Postilion, Semiellante, Jean Bart, and Ranger, all in the public service of and belonging to the French Republic, commanded by Commodore Vil Maudarine, and that the French Republic and all the citizens thereof were then and still are at open war with the King of Great Britain and all his subjects, and that some of the seamen of said squadron entered on board the said ship Mary Ford, took complete and entire possession of her, and took and brought away the British captain and seamen of said ship, and still hold them prisoners of war, and that they took and brought away the papers belonging to her, by all which and the laws of nations the said ship Mary Ford and her cargo, became the property of the French Republic and the captors by the rights of war.

The said last mentioned claimant further suggested that afterwards, on 29 September, about three o'clock in the afternoon, the said ship and her cargo, by order of the commodore of said squadron, from an apprehension of weakening his force, were left at sea from necessity. The said consul prays a restoration of the said ship and cargo to be adjudged to him to the use of the French Republic on his paying reasonable salvage, with costs and charges, or that the said ship and cargo may be decreed to be sold to the use of the French Republic and her citizens concerned, after paying such salvage, costs, and charges.

The facts which appear in evidence in this case are that the Mary Ford and her cargo were, before 28 September, the property of certain British subjects; that she was bound on a voyage from the West Indies to London; that on that day she was attacked on the high seas by the squadron mentioned in the claim of the Consul of the French Republic or one of the ships belonging to the same to which she struck; that an officer and some of the crew of one or more of the ships of said squadron entered on board, took out her captain and all her crew and the greatest part of the ship's papers, and that she

Page 3 U. S. 190

sailed some time, probably more than twenty-four hours, with said French crew on board her, in company with said squadron, and was then left by order of the commander of said squadron, who directed her to be burnt; that some attempts were made unsuccessfully to effect this purpose; that several British vessels had been captured and manned by said squadron, and many of the people of the squadron were sick, and incapable from that cause to do duty; that from an apprehension of weakening his force, the said commander had given the said orders; that the said ship George met with the said Mary Ford at the time and place mentioned in the libel and brought her and her cargo into the harbor of Boston under the circumstances set forth in the libel; the ship Mary Ford and her cargo have been sold by order of the court, and with the consent of all parties.

After argument, Lowel, judge of the district, delivered the opinion of the court, first recapitulating the facts above stated.

"BY THE COURT. The libellants have prayed that the whole of the ship and cargo should be decreed to their use. There have been times in the history of nations in which vessel and goods left by necessity on the high seas have been decreed the property of the finders, and where wrecks on the shore have been withheld from the original proprietors by the sovereigns of the country or some great man on whose lands they have happened to be cast. But in very early times they have in both cases been considered as the property of the original owner. Several of the Roman emperors made their edicts and decrees for the preservation of such property and the restoration of it, and for a long time the law of nations has been settled on principles consonant to justice and humanity in favor of the unfortunate proprietors, and the persons who...

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3 cases
  • Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • July 29, 2013
    ...S.Ct. 325, 81 L.Ed. 593 (1937), and the rule's application has been noted since the Court's earliest years, McDonough v. Dannery, 3 U.S. 188, 198, 3 Dall. 188, 1 L.Ed. 563 (1796). See Greenlaw v. United States, 554 U.S. 237, 244–45, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008); El Paso, 526 U.S. ......
  • Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc., 2012-1247
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • April 19, 2013
    ...Co v. Md. Cas. Co., 300 U.S. 185, 191 (1937), and the rule's application has been noted since the Court's earliest years, McDonough v. Dannery, 3 U.S. 188, 198 (1796). See Greenlaw v. United States, 554 U.S. 237, 244-45 (2008); El Paso, 526 U.S. at 479. Application of the rule promotes orde......
  • Vinal v. Spofford
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 25, 1885
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