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The Sir William Peel/Opinion of the Court

APPEAL from the decree of the District Court for the Eastern District of Louisiana, respecting the steamship Sir William Peel and cargo, which had been captured September 11, 1863, at the mouth of the Rio Grande, on the Mexican side, as it seemed, thereof, by the United States war vessel Seminole, during the late rebellion, and libelled in the said court for prize of war.

A claim to the vessel was put in by Corry & Laycock, of Manchester, England; and for the cargo, by Henry & Co., of the same place.

On the examination in preparatorio, the only persons on board the ship who were examined were the master, mate, and one seaman. From these, the charter-party on board, and a survey of the vessel, it appeared that the vessel had been sold 24th April, 1863, by certain persons, British subjects, who had bought her a week before, to Corry & Laycock; that the vessel (one of 1500 tons burden) had been built in 1855 as a war vessel for the Portuguese government, and at the time of the sale had been employed in the British transport service; that her marine engines were six feet below the water line; that three days after the sale, i. e., on the 27th April, the new purchasers chartered her to Duranty & Co., 'for the conveyance of lawful merchandise between Liverpool and Mexico and any other lawful ports; ''the vessel not to attempt to break any blockade. No injurious cargoes to be shipped'' as ordered by the charterers;' that Henry & Co. had shipped upon her a general cargo; gambier, sumac, boots in cases, bar, wrought, and hoop iron, baled goods, and a number of axes; that the vessel began to unlade and relade at the same time. When captured she had on board her a keg (25 lbs.) and a flask of gunpowder, 72 cannon cartridges, 48 rifle cartridges, 24 blue lights, 16 rockets, 47 muskets ready for action, 4 boarding pistols, 11 tomahawks for boarding, 46 boarding cutlasses, and several other military accoutrements placed in the companion-way or in a room amidships; also among the dunnage, partly hidden, a lot of solid round shot, and a quantity of grape-shot loose, and between decks two casks of iron rings used for artillery harness. These articles, it was testified by one or more of the persons above mentioned, had been on the ship when in the transport service, and had followed her as she passed to the new owners. The captain testified that there was 'no other warlike material aboard; that when the vessel was loaded at Liverpool everything like contraband had been excluded; and that Corry & Laycock owned the ship, and Henry & Co. the cargo; that all the owners were Englishmen, and had always lived at home; that the voyage was from Liverpool to Matamoras and back; that the outward cargo was to be delivered to Milmo & Co., a firm of Matamoras, for the benefit of Henry & Co.'

It appeared also, from the testimonies just mentioned, that the vessel cleared from Liverpool direct to Matamoras, but had stopped, as the mate testified (the captain saying nothing about this), at Jamaica to take in coal; and that she arrived at the mouth of the Rio Grande, the dividing river between Mexico and the United States, June 24, 1863, and anchored well on the Mexican side; that she began to unlade her outward cargo and to take a return cargo cotton at the same time; the outward cargo being discharged in lighters and taken by steam from thence to Matamoras, about thirty miles from the mouth of the river; the return cargo of cotton being brought down in lighters and so put on the Sir William Peel; and that, about 950 bales being on board, the vessel was captured. That the ship's papers had been given to her consignees at Matamoras, and were therefore not on board, the vessel not being yet fully laden or ready to return.

In addition to this testimony of the captain, mate, and seaman, the testimony of two other persons, loyal citizens of the United States, one resident in Brownsville, a place in the State of Texas, and then in possession of the Confederacy; the other a mate of a merchant vessel of New York, then at anchor near the Peel, was taken, in preparatorio, along with that of the witnesses from the ship. The testimony of these witnesses went to prove that the rebel authorities or rebel citizens were interested in the vessel and the cargo both outward and return.

On the case coming to hearing, the court, on motion of counsel of the captors, excluded the testimony of such of the witnesses as were not found on board the captured vessel, but subsequently gave leave to both parties to take further proofs. Further testimony, including that of one of the persons whose evidence had been excluded, as taken in preparatorio, was accordingly taken on both sides. It was contradictory.

On the one hand it was testified that the consignees, Milmo & Co., of Matamoras, had the general reputation of being agents of the Rebel Confederacy, that they had a branch house in Brownsville, nearly opposite, in Texas, and were engaged in receiving cargoes from Europe which they disposed of to the military authorities of the Confederacy, receiving and lading, in return, cotton which the Confederacy had seized, and over which it exercised the right of property.

'I crossed over (from Texas to Mexico) between five and six hundred bales, Confederate cotton, that was to go on to the Sir W. Peel, but I cannot swear that it went on board her.'. . . 'This cotton had been turned over by a Confederate States agent to Milmo & Co., for account of the Confederate government. . . . Milmo & Co. hurried me up, as they were anxious to ship it on the Sir W. Peel.' 'I shipped the cotton even during nights and on Sundays.' 'I was fully confident at the time that this cotton was shipped for the Peel, and had no doubt of it whatever.'

Another witness of the captors, resident for many years in Brownsville and its vicinity, testified:'It was generally known in Matamoras that the Peel was at the mouth of the Rio Grande. This public notoriety was as to her size; second, as to the cargo she had; and third, as to the disposition to be made of that vessel after having the port of Matamoras. Her size was unusual for a vessel in those waters; her cargo, comprising arms and munitions of war. It was the general rumor that she was to receive her cargo of cotton, go to Havana and Nassau, and there discharge her cargo, and then become a privateer. I very often met with Texan and rebel officers. I remember two with whom I had conversations with regard to the Peel. The adjutant, Dr. Riley, at the time of the seizure of cotton by the Confederacy, told me, when I inquired of him the cause of this impressment of cotton, that certain vessels had arrived from England belonging to parties with whom he had contracts, and they found it necessary to impress cotton if they were to receive these cargoes; accordingly the cotton was impressed, in order that they could receive these cargoes.

'The Sir William Peel was spoken of in connection with these cargoes in a conversation with J. K. Spear, quartermaster's clerk in Brownsville, in reference to the amount of arms the people of Western Texas had. He stated that they received all the arms they desired from vessels at the mouth of the Rio Grande, and that for a week previous he had been engaged in crossing arms for the quartermaster. I inquired of him where he had the arms from, whether from the Mexican shore or direct from the Gulf. He answered he got them in both ways, direct from vessels and from the other side, the Mexican shore. At the same time he stated that a particular friend of his was interested in the Sir William Peel, and that he had been receiving goods from the Sir William Peel.'

On the other hand, the testimony of one of the partners of the firm of Milmo & Co. was as follows:

'The vessel belonged and still belongs to Messrs. Corry & Laycock, merchants, living in Manchester, England, and British subjects.

'The cargo on board the vessel when captured, was and is the bona fide property of Henry & Co., residing in Manchester, British subjects, purchased by us in this port for them; the cargo landed here belonged to the same parties. I derive this knowledge from the consignment, and correspondence relative to the consignment of the said cargo to us, by the said Henry & Co. Their ownership was absolute and exclusive of all other interest.

'We had full instructions to invest the entire proceeds of the inward cargo in cotton, and to fill up the Sir William Peel for Liverpool. If the proceeds did not furnish cotton enough, then to take any freight offering for that port, sufficient to load the vessel at the ruling rate of freight. We accordingly had ready for the Sir William Peel, three thousand bales of cotton, the quantity thought to be necessary to fill her. Our instructions also directed us to give her as quick despatch as possible for Liverpool; and her cargo was engaged for, and the nine hundred and four bales on board were destined for that port.'

The instructions referred to by this witness were not produced.

The further proofs showed that there was machinery aboard, apparently not on the manifest, which had been landed; bales of blankets, &c., &c., and also tended to show that the vessel when first anchored, was in American water; but that she had shifted her position to the spot at which she was captured.

The testimony as a whole, satisfied the mind of the court below that the vessel was captured when anchored south of the line dividing the waters of the Rio Grande, and when, therefore, she was in neutral waters. On that ground, it decreed her restitution; but entertaining grave doubts as to the object of her voyage, 'so grave, indeed, that but for this consideration that she was captured in neutral waters, the court should have decreed her condemnation, it ordered that the costs and charges consequent upon the capture, be paid by the claimants, and that damages be refused.' Both parties appealed.

Messrs. Evarts and Marvin, with whom was Mr. A. F. Smith, for the claimants:

I. The order made in the court below, granting to the captors time to procure further evidence, was improper; the captors not being entitled, under the circumstances of the case, to any such order; and, particularly, not entitled to an order granting them leave to produce further proof in the case generally, without specifying any particular matter or point to which the further proof should be directed.

The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken, viz., the papers on board, and the examination, on oath, of the master and other principal officers. If there do not appear from thence ground to condemn as enemy's property, or contraband goods going to the enemy, there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful that it is reasonable to go into further proof. The claimant is often allowed to supply further proof of his neutral ownership. The captor is rarely allowed to produce other proof than what is furnished by the ship's papers, and the testimony of persons on board; and when he is allowed to produce further proof, the order should confine such proof to a particular point or matter.

We assert, therefore, that the cause shall be heard and decided in this court, as it ought to have been in the court below, upon the claim itself, upon the papers found on board the vessel, and the depositions of the master and persons on board the vessel at the time of the capture; that is to pay, in this case, of the master, the mate, one seaman, and none others.

On these testimonies it is impossible to find justification even of seizure.

II. (Mr. Evarts.)-1. The claimants in this case are neutrals, subjects of Great Britain, and as such have a persona standi in the prize court to allege, according to the regular procedure of the prize jurisdiction, whatever is pertinent and significant on the question 'of lawful prize of war,' under the law of nations, as bearing upon the sentence of restitution or condemnation to be passed in the cause. Whenever, therefore, upon the contestation of these competent litigants, any fact appears to the court exhibiting the capture to be unlawful and void, that fact is to have its consequence in a sentence of restitution, as necessarily as upon any other form of presentation to or cognizance by the court of the fact in question. It is impossible for the court to ignore such fact, for it is alleged and proved by a litigant, to whom it is open to allege and prove whatever is pertinent and is true, bearing upon the question of prize or no prize. If the fact thus before the court, under the rules of the law of nations, requires the restitution of the prize, sentence of condemnation cannot pass without a violation of the law of nations.

2. The Sir William Peel with her cargo, when lying at anchor within the neutral territory of Mexico, was captured, in violation of the absolute immunity from belligerent visitation, search, or capture, enjoyed by neutral property within neutral territory.

Upon this fact appearing, the capture is, by the law of nations, illegal and void, carrying no rights to the captors, involving the neutral property or its neutral owners in no amenability to the prize jurisdiction on the merits, and exposing the captors to exemplary damages from the justice of the prize court, and to personal punishment from their belligerent government, which their misconduct has compromised with the neutral nation of the injured neutral owners, not less than with the neutral nation whose territory has been violated.

As between belligerents, the rights of war are substantially measured by their power. But as between neutrals, the mere power of the belligerents carries no right whatever. The whole scope and measure of the rights of a belligerent towards neutrals, are determined by the conceded or adjusted rules and limits of interference fixed by the law of nations. These rules and limits relate either to the theatre or region within which any rights whatever are conceded to the belligerents towards neutrals, or to the restrictions upon such rights within the theatre or region where, to any degree, such rights are conceded.

By the law of nations, within the region invaded by this belligerent capture, the belligerent had no right whatever as towards or against neutral nations, nor the property of their subjects. 'The rights of war,' says Mr. Wheaton, 'can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties.'

'The maritime territory of every state extends to the ports, &c. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the state. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of any other nation.'

Every exercise of belligerent right, whether of visitation, search, or capture, within neutral territory, is absolutely unlawful, and every capture within such territory is absolutely void. 'There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.' 'All captures made by the belligerent within the limits of this (neutral) jurisdiction are absolutely illegal and void.' 'When the fact is established,' says Lord Stowell, 'it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding it may actually belong to the enemy; and if the captor should appear to have erred wilfully, and not merely through ignorance, he would be subject to further punishment.'

The government of the United States, in the most definite and vigorous manner, and in the most public and authentic form, recognized these limitations of belligerent rights, and enjoined upon our cruisers a strict observance of them, under penalty of its displeasure. Upon a suggestion from the British minister, that the cruiser Adirondack had pushed the chase of a British vessel within the line of neutral maritime jurisdiction, the Secretary of State, under date of August 14, 1862, communicated to the Secretary of the Navy the views of the government in the following terms:

'The President desires that you ascertain the truth of this fact with as little delay as possible, since, if it be true, the commander of the Adirondack has committed an inexcusable violation of the law of nations, for which acknowledgment and reparation ought to be promptly made. To guard against any such occurrence hereafter, the President desires that you at once give notice to all commanders of American vessels of war, that this government adheres to, recognizes and insists upon the principle that the maritime jurisdiction of every nation covers a full marine league from the coasts, and that act of hostility or of authority within a marine league of any foreign country, by any naval officer of the United States, are strictly forbidden, and will bring upon such officer the displeasure of his government.'

Indeed, the commission to cruisers, by the law of nations and by the practice of our government, accepts and enforces these limitations on belligerent rights towards neutrals. Thus, the 'instructions to private armed vessels,' during the last war with Great Britain, enforced this limitation:

'The tenor of your commission, under the act of Congress, entitled 'An act concerning letters of marque, prizes, and prize goods,' a copy of which is hereunto annexed, will be kept constantly in your view. The high seas, referred to in your commission, you will understand generally to refer to low water mark, but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and with the United States. You may, nevertheless, execute your commission within that distance of the shore of a nation at war with Great Britain, and even upon the waters within the jurisdiction of such nation, if permitted so to do.'

Accordingly, the Secretary of the Navy, in a communication to the Secretary of State, in answer to the remonstrance of the British minister against the violation of the law of nations by this and other captures in neutral waters, as made known to the Secretary of the Navy by the Secretary of State, expressly disclaims either the right or the purpose to make such captures. He said:

'I do not understand our government to claim the right of, &c., nor the right of capturing ships in Mexican waters, or in any neutral waters.'

'It is not improbable that the commanders of some of our cruisers in the Gulf are not accurately informed of the extent of the national rights herein referred to, and the department will lose no time in placing the matter properly before them.'

3. As, then, the capture was made in the neutral waters of Mexico, and upon that mere statement, was—

a) In excess of the cruiser's commission from our government;

(b) In excess of exercise of belligerent rights, conceded and submitted to by the neutral nation whose subjects are the owners of the captured property;

As it had been—

(a) In terms 'strictly forbidden' to our cruisers, and brings upon the captors 'the displeasure of the government;'

(b) Pronounced by the government 'an inexcusable violation of the law of nations, for which acknowledgment and reparation ought to be promptly made--'

The vessel and cargo are not lawful prize of war, and the decree of restitution must be affirmed.

The prize court is but a judicial scrutiny or inquisition, in behalf of the government, to ascertain and adjudicate whether the res is subject to condemnation, as captured within and in pursuance of the belligerent right of the government, conformably to the law of nations.

When the contrary appears, restitution follows, and in no case can the treasury be enriched, and the captors rewarded, by condemnation, when the capture is 'an inexcusable violation of the law of nations, for which reparation must be promptly made,' and brings upon the captor 'the displeasure of his government,' provided this character of the capture is before the prize court.

4. It is submitted that no case can be found in which the property of neutral claimants, admitted to allege and prove the invalidity of a capture in neutral waters, has been condemned. The case of The Lilla (in Sprague's Decisions), in the District Court of Massachusetts, is no exception to this proposition. The court held the fact not made out, and the very brief observation of the court, that, if made out, the objection was not open of the neutral claimant, was but obiter.

5. The rule, supposed to be established, and the cases in support of it, that, though actual enemy property captured in neutral waters is not good prize, and must be restored, upon that fact appearing, yet the enemy owner cannot be heard to make the objection, but only the neutral nation whose waters have been entered, rest upon the reason that no wrong can be done to an enemy, and no allegation can be heard in his behalf. In other words, that in the case of enemy's property, the fact of invalid capture cannot come before the prize court, except upon the representation of the neutral nation. 'It is a technical rule of the prize courts,' says Mr. Wheation, 'to restore to the individual claimant, in such a case, only on the application of the neutral government whose territory has been thus violated. This rule is founded upon the principle that the neutral state alone has been injured by the capture, and that the hostile claimant has no right to appear for the purpose of suggesting the invalidity of the capture.'

The Anne, the only case in this court upon the question, was of an enemy ship, and so far from disturbing, confirms the position contended for in behalf of neutral claimants. 'A capture made within neutral waters,' said Story, J., in that case, 'is, as between enemies, deemed, to all intents and purposes, rightful.' 'The enemy has no rights whatsoever; and if the netural sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors.' This case is subject to the further criticism, as an authority on this point, that the facts show, and the court so hold, that the protection of neutrality had been forfeited by the captured ship having commenced hostilities against the captor, so that no claim by the neutral sovereign could have been interposed.

The Richmond, was the case of a municipal forfeiture of a vessel of the United States, the seizure having been made in St. Mary's River, within the Spanish territory of Florida.

On such a case, it is obvious that the violation of Spanish territory could never come in issue, judicially, nor could it in anywise protect the vessel against the municipal justice of its own government.

Upon an examination of the decisions of Sir William Scott, it will be found that the cases in which condemnation has passed, for want of the intervention of the neutral government, have been upon actual enemy's property where no claimant could appear.

III. If, however, this neutral property represented by neutral claimants, shall be held amenable to the prize jurisdiction upon the merits, it is apparent that neither the vessel nor the cargo captured is good prize of war.

1. As to the VESSEL.

Its sincere and permanent neutral ownership is unquestionable, either upon the preparatory, or the further proofs. The 'general rumors' to the contrary come to nothing in the face of the positive testimony.

It had violated, or attempted to violate no blockade. Matamoras could not be, and Brownsville was not, blockaded.

The Navy Department expressly excluded Brownsville from the blockade-of Taxas. 'The whole coast of Taxas, except such part as may be necessary for access to the port of Brownsville, is to be regarded as under blockade.'

If its inward cargo included any contraband, it had all been landed before the capture, and so the ship was free from interference on that ground.

But if contraband had been found on board, the ship would not have been involved in condemnation therefrom. There was no connection between the ship or its owners and the cargo or its owners, except that of carriers under the charterparty.

But further. Upon the proofs it is impossible to contend that contraband formed any part of the inward cargo.

Again. If any part of the inward cargo was contraband in its nature, as the voyage was between neutral ports in its project, and was consummated by the delivery of the whole cargo at Matamoras, no offence is predicable of a trade in contraband not seeking an enemy port.

2. As to the CARGO.

The inward cargo captured was neutral property, and was not contraband.

Its value was so trivial as to deserve little attention, and the outward cargo consisted of 904 bales of cotton, and as it was not contraband in its nature, and, whatever its nature, it could not be contraband from its outward destination; as, besides, it was not being exported in violation of blockade, it can be condemned only as enemy property.

Upon the proofs it is impossible to contend that any imputation goes beyond the fact, that some undesignated and unmeasured part of this cotton had been, before lading, enemy property. But as trade by neutrals with the enemy, and the purchase of enemy property, except in violation of blockade, are wholly lawful, no consequence of condemnation, from enemy origin, can be pretended.

Finally. The capture was wholly unjustifiable, and the restitution decreed should have been attended with damages and costs.

The innocence of the vessel and her voyage and cargo, was apparent upon visitation, and there was no justification for suspicion or surmise to their prejudice.

When captors thus intercept an open prosecution of an apparently lawful trade, and visitation exhibits every trait of honest neutrality, and the commerce thus indicated is not only lawful, but is constantly engaged in by our own vessels, the integrity of the prize courts demands the infliction of damages and costs as a check to the speculative cupidity of captors.

The features of this case are not distinguishable from those of The Labuan, intercepted in her trade at Matamoras, and brought into New York. She was promptly restored, the diplomatic claim for damages immediately recognized, and an adjustment proceeded with.

The decree of restitution should be affirmed, and the decree charging the claimants with costs and refusing them damages, should be reversed.

Mr. Ashton, Assistant Attorney-General for the United States, and Mr. Eames, for the captors, contra:

I. We could argue, perhaps, that the testimony of all the witnesses taken in preparatorio might, in the discretion of the court, have been well received in furtherance of justice. One of them was a person stationed on a New York vessel, temporarily in the harbor, and could not be subsequently procured. We need not so argue. But undoubtedly the further proofs must be heard. There was enough in the mere character of an armed vessel to excite suspicion, even if the court had no right to look at all the depositions.

II. The locality of the capture, admitting it to have been made in Mexican waters, is unimportant. Mexico makes no remonstrance; in no way objects. We admit the ingenuity and force also of the opposing argument made by Mr. Evarts. But all the authorities agree that capture within neutral territory can only be averred in support of a claim for restoration by the accredited agent of the government whose neutral immunity has been thus infringed. Neither the enemy claimant, who has no standing in the prize courts, nor the citizen claimant, who has made his property liable to condemnation in prize for unlawful trading with the enemy, nor the neutral claimant, who, at the time of capture, is found in the predicament of having laid aside his neutral character, and having, by unneutral conduct, made himself pro hac vice an enemy, can set up for defence against decree of condemnation so incurred, the fact of capture within neutral limits. No case has been or can be produced giving warrant for such allegation. All the adjudged cases state, with equal explicitness and emphasis, first, that the claim of neutral immunity, when properly pleaded by the aggrieved neutral government, is conclusive and effectual in all cases as a defence against a decree of condemnation, and, secondly, that such claim on such ground can be made only by and in behalf of such government whose territorial rights have been infringed.

In The Purissima Concepcion, the leading British case upon the subject, Lord Stowell stated, in the plainest words he could use, that 'it is a known principle of this court that the privilege of territory will not itself enure to the protection of property, unless the state from which that protection is due steps forward to assert the right.'

The same doctrine is maintained in the other British cases, and in The Anne, in our own.

In no one of these cases does the court attempt to make any distinction between the case of a captured non-combatant enemy and a captured neutral who has forsaken his neutrality, and by his conduct made himself liable to be captured and condemned as an enemy.

The order issued by the Navy Department to our naval vessels on the 14th of August, 1862, prohibiting the capture of any vessel within the territorial waters of a friendly nation, has no application to a case like this, where the captors proceeded upon the best observations which could be made, and so determined the position of the prize to be such as to make her capture not only lawful, but obligatory upon them in the performance of their duty. The order is intended to protect the territorial immunity of neutral nations, and not to save blockade-runners and contrabandists, in doubtful positions near the neutral line, from the lawful and rightful penalty of their conduct.

III. The testimony brings out the fact made known in other cases, that the whole system of traffic during our rebellion between Matamoras and the British ports, was but a fraudulent pretence of honest and legitimate neutral trade, and that the plan and scheme of the voyages were organized with the purpose of concealing enemy property, and in a manner peculiarly offensive both to the belligerent and the sovereign rights of the United States.

As matter of public law, any neutral vessel engaged and arrested in the prosecution of a traffic so suspicious and demoralizing as that with a neutral along the line of a river on which lay a blockaded and suffering enemy, should be held in a prize court to conclusive proof of her innocence. In the absence of such proof, the inference must be that she is guilty.

The selection of a steamer of the size, strength, and armament of the Peel for the Matamoras trade; the touching at Jamaica,-suppressed by the master, but confessed by the mate, material, when the ship is afterwards found clandestinely discharging machinery, no machinery being upon the manifest; the universal belief at Matamoras that the vessel and carge were owned by rebel parties, and that the former was not meant to return to Liverpool, but was intended, after discharging her cotton at Havana and Massau, to be turned into a rebel privateer; the munitions, arms, and cannon she had on board, suitable only for war service, and not at all excused, but the contrary, by the fact that they were on board when the vessel was bought; the admissions by rebel agents that they had goods aboard; the unexplained failure of Milmo & Co., testifying through their partner, under the order for further proof, to produce the instructions from Henry & Co. as to the disposition of the outward cargo and purchase of the return cargo; the employment by Henry & Co., claimants, of Milmo & Co. to act as their agents, when they were the notorious and advertised commercial agents of the rebel authorities in Texas, known to have little, if any, other business than the obtaining of cotton from those authorities for exportation, as return cargo, through the port of Brownsville, where they had a branch house,-all mark a dishonest purpose on the part of those concerned in this adventure; and the decree of restoration in the court below should be reversed, and both ship and cargo condemned.

They would, indeed, have been so but for the idea of the judge below, that the capture in neutral waters saved them; an idea which, though so ably supported on the other side, we have shown has no foundation in law.

The CHIEF JUSTICE delivered the opinion of the court.

Regularly in cases of prize no evidence is admissible on the first hearing, except that which comes from the ship, either in the papers or the testimony of persons found on board.

If upon this evidence the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or upon motion and proper grounds shown, to introduce additional evidence under an order for further proof.

In the case now before us some testimony was taken, preparatory to the first hearing, of persons not found on board the ship, nor, indeed, in any way connected with her. This evidence was properly excluded by the district judge, and the hearing took place on the proper proofs.

Upon that hearing an order for further proof was made, allowing the libellants and captors, on the one side, and the claimants, on the other, to put in additional evidence; and such evidence was put in accordingly on both sides.

The preparatory evidence on the first hearing consisted of the depositions of the master of the ship, the mate, and one seaman. No papers were produced, for none were found on board; a circumstance explained by the statement of the master, that all the papers belonging to the vessel, except the lightermen's receipts for the cargo, were with the English consul and the consignees of the ship at Matamoras.

The depositions established the neutral ownership of the ship and cargo. They proved that the Sir William Peel was a British merchantman; that she had brought a general cargo, no part of which was contraband, from Liverpool to Matamoras; that this cargo, except an inconsiderable portion, had been delivered to the consignee at the latter port; that the cotton found on board was part of her return cargo; that it was owned by neutrals, and had a neutral destination; and that the ship, when captured, was in Mexican waters, well south of the boundary between Mexico and Taxas.

This proof clearly required restitution. The order for further proof was, probably, made upon the rejected depositions, which, though inadmissible as evidence for condemnation, may have been allowed to be used as affidavits on the motion for the order.

The further proof, when taken, was conflicting.

The weight of evidence, we think, put the vessel, at the time of capture, in Mexican waters; but if the ship or cargo was enemy property, or either was otherwise liable to condemnation, that circumstance, by itself, would not avail the claimants in a prize court. It might constitute a ground of claim by the neutral power, whose territory had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral, acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters.

We must, therefore, look further into the case.

There is some evidence which justifies suspicion. Several witnesses state facts which tend to prove that the Peel was in the employment of the rebel government; and that part, at least, of the cotton laden upon her, as return cargo, was in fact rebel property.

There are statements, on the other hand, which make it probable that the Peel was in truth what she professed to be, a merchant steamer, belonging to neutral merchants, and nothing more; that her cargo was consigned in good faith by neutral owners for sale at Matamoras, or to be conveyed across the river and sold in Texas, as it might lawfully be, not being contraband; that the cotton was purchased by neutrals, and on neutral account, with the proceeds of the cargo or other money.

In this conflict of evidence we do not think ourselves warranted in condemning, or in quite excusing the vessel or her cargo. We shall, therefore, affirm the decree by the District Court, and direct restitution, without costs or expenses to either party as against the other.

AFFIRMANCE AND DIRECTION ACCORDINGLY.


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United States v. Pico (72 U.S. 536)

THIS was a proceeding for the confirmation of a claim to lands in California acquired under the Mexican government. The claim was for two tracts, one of which was designated as the Rancho of San Margarita and San Onofre; and the other as the Rancho of Las Flores.

The Rancho of San Margarita and San Onofre was acquired under a grant made in May, 1841. It describes the land as 'bordering to the north on the point called El Ballicito and La Tenega, to the west on the point of San Mateo, to the south on the boundaries of the Pueblo de las Flores and El Moro, and to the east on the land of the Cajon, according to what is shown is the sketch annexed to the expediente;' and the testimony in the case showed that these boundaries were well known in the country and easily traced. In 1842, juridical possession was given to the grantees, when the land was measured, and its boundaries established, and ever since it has been occupied, cultivated, and improved by the grantees or parties claiming under them. In 1845, the concession was approved by the departmental assembly. The resolution of approval, after reciting the concession, and that it was made in conformity with the requirements of the laws, is as follows:

'It approves of the concession made by the superior government of the department in favor of the native-born Mexican citizens, Pio Pico and Anders Pico, of the locations known by the names of San Onofre and Santa Margarita, in extent twelve square leagues (sitios ganada mayor), in entire conformity with the law of the 18th of August, 1824, and article fifth of the regulations of 21st of November, 1828.'The tract known as the Rancho of Las Flores was acquired by purchase from an Indian pueblo or town of that name. The record showed the existence of the pueblo and the assignment to it of the land in question by the officers of the Mexican government, and that subsequently the was transferred to the Picos, under the supervision and with the sanction of the local authorities.

The District Court confirmed the claim to both ranches, stating in the decree that the tract confirmed contained twenty square leagues, and giving its boundaries specifically. From this decree the United States appealed.

Mr. Stanbery, A. G., and Mr. Wills, for the appellants, and Mr. Coffey, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: United States v. Pico (72 U.S. 536)


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United States v. Pico (72 U.S. 536)/Opinion of the Court

By the decree of the District Court, which is the subject of appeal in this case, the respondents obtained a confirmation of their claim to two tracts of land, containing together an area of twenty square leagues.

One of the tracts is designated as the Rancho of San Margarita and San Onofre, and is described in the concession of the governor by specific boundaries. The testimony shows that these boundaries were, at the time, well known in the country, and easily traced. The concession was made in May, 1841, and within the year following juridical possession of the land was given to the grantees; and from that time until the present day it has been occupied, cultivated, and improved by them, or parties claiming under them.

In July, 1845, the concession was approved by the departmental assembly. The resolution of approval, after designating the tract ceded, adds, 'in extent twelve square leagues;' and these words are supposed by the appellants to create a limitation upon the quantity granted.

It is evident, however, that the words are not used for any such purpose, but merely indicate a conjectural estimate of the quantity. The concession of the governor, with its specific description, is referred to in the proceedings of the assembly, and is stated to have been made in conformity with the requirements of the law. No objection is suggested to the boundaries given, nor is an intimation made of any intention to exclude from the concession any portion of the land they embrace or to restrict the concession in any particular.

When, in Mexican grants, boundaries are given, and a limitation upon the quantity embraced within the boundaries is intended, words expressing such intention are generally used. Thus, in the Fremont case, the boundaries stated embraced many leagues more than the quantity intended to be granted, and the grant provided for the measurement of the designated quantity and the reservation of the surplus. In the absence of terms of similar import, the extent of the grant is only subject to the limitation upon the power of the governor, imposed by the colonization law of 1824.

Were there any doubt of the intention of the governor to cede all the land contained within the boundaries designated by him, it would be removed by the jurisdical possession delivered to the grantees. This proceeding involved an ascertainment and settlement of the boundaries of the lands granted by the appropriate officers of the government, specially designated for that purpose, and has all the force and efficacy of a judicial determination. It bound the former government, and is equally binding upon the officers of our government.

Such is the purport of the recent decision in the case of Graham v. United States. In that case the survey made by the Surveyor-General of the grant confirmed did not conform to the measurement of the land as shown by the record of juridical possession, and the District Court, for that reason, set the survey aside and ordered a new survey, which should correspond with the measurement, holding that the action of the officers of the former government, upon the delivery of possession, furnished insuperable objections to any other course. In affirming this decision, this court expressed its concurrence with the views of the District Court, and held that a proceeding of that character must control the officers of the United States in the survey of land claimed under a confirmed Mexican grant. In other words, the case decided that the juridical possession was conclusive as to the boundaries and extent of the land granted.

The other tract included in the confirmation is designated as the Rancho of Las Flores, and was acquired by the claimants by purchase from the Indians of the pueblo of that name. The existence of the pueblo and the assignment to it of the land in question by the officers of the Mexican government are fully established by the documentary evidence in the case. The objection of the appellants is founded upon the absence of any transfer of the title to the pueblo by deed or other writing. But such transfer was not essential, nor was it usual. A pueblo once formed and officially recognized became entitled, under the laws of Mexico, to the use of certain lands, for its benefit and the benefit of its inhabitants, and the lands were, upon petition, set apart and assigned to it by the government. No other evidence of title than such assignment was required, nor was any other given.

The disposition of the lands assigned was subject at all times to the control of the government of the country. The pueblo of Las Flores was an Indian pueblo, and over the inhabitants the government extended a special guardianship. The transfer of the land to the Picos was made in conformity with the existing regulations established for the protection of the Indians, under the supervision and with the approval of the local authorities, and appears to have been satisfactory to all parties.

The decree of the District Court must be affirmed, and it is

SO ORDERED.


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Insurance Company v. Ritchie

THIS was an appeal from a judgment of the Circuit Court for Massachusetts, dismissing a bill in equity, filed by the Merchants' Insurance Company, a corporation created by the laws of Massachusetts, and having its place of business in the city of Boston in that State, against James Ritchie, and E. L. Pierce, the assessor and collector of internal revenue for the third collection district of that same commonwealth, and both citizens of it, praying that they might be enjoined from the distraint and sale of the complainant's property for non-payment of a certain tax. The defendants demurred, for the reason that the bill disclosed no ground for equitable relief. The demurrer was sustained, and the bill dismissed.

Coming here, the case was elaborately argued by Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the assessor and collector, and by Messrs. S. Bartlett and F. W. Palfrey (by brief) for the Insurance Company; the argument turning chiefly on the matter of public policy on the one hand, in allowing officers of the government to be embarrassed in the prompt collection of its revenues by the strong and summary process of injunction; and on the other hand, on the matter of private rights of the citizen in precluding him from adequate remedy against clearly illegal proceedings of government agents in the assessment and collection of these revenues.

But a preliminary question, the question namely, whether the suit as an internal revenue case could, under the statutes of the United States as now existing, be maintained at all,-the parties all being citizens of the same State,-cut off decision on these points, and renders a report of the principal argument irrelative.

The CHIEF JUSTICE delivered the opinion of the court.

title: Insurance Company v. Ritchie


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Insurance Company v. Ritchie/Opinion of the Court

We meet upon the threshold of this cause a question of jurisdiction.

The record discloses a suit in equity by the Merchants' Insurance Company, a corporation under the laws of Massachusetts, having its place of business in the city of Boston, against James Ritchie and E. L. Pierce, assessor and collector of internal revenue in the third collection district of that commonwealth. The corporation constructively, and Ritchie and Pierce actually, are citizens of Massachusetts. And the question is, Whether this suit, as a revenue case, can be maintained by a citizen of Massachusetts against citizens of the same State?

The Judiciary Act of 1789 limited the jurisdiction of National courts, so far as determined by citizenship, to 'suits between a citizen of the State in which the suit is brought and a citizen of another State.' And, except in relation to revenue cases, this limitation has remained unchanged.

In 1833 an attempted nullification of the laws for the collection of duties on imports led to the enactment of a law, one of the provisions of which conferred on the Circuit Courts jurisdiction of 'all cases in law or equity arising under the revenue laws of the United States for which other provisions had not been already made.'

Until the passage of this act no original action by a citizen of any State against a citizen of the same State could be maintained in a National court, at law, or in equity, for injuries arising from the illegal exaction of duties by collectors of revenue. Redress of such injuries could be obtained only in the State courts, and the revisory jurisdiction of this court could be invoked only under the twenty-fifth section of the Judiciary Act.

The act of 1833 made the right of action to depend not altogether, as previously upon the character of the parties as citizens or aliens, but also on the nature of the controversy, without regard to citizenship or alienage. Under that act citizens of the same State might sue each other for causes arising under the revenue laws. A citizen injured by the proceedings of a collector might have an action against him for the injury, though a citizen of the same State with himself.

And the third section of the same act gave the right to collectors or others who might be sued in any State court, on account of any act done under the revenue laws, to remove the action by a proper proceeding into a National court.

The right to remove causes from State into National courts had been long before given by the Judiciary Act, but it was limited to certain classes of cases, which did not include those arising under the laws for the collection of duties.

After the act of 1833 many suits, brought in the State courts against collectors, were removed into the Circuit Courts. The cases of Elliott v. Swartwout and Bend v. Hoyt, were of this description. They were suits originally instituted in the Superior Court of New York, but removed to the Circuit Court of the United States for the Southern District, to recover from collectors of the port of New York duties alleged to have been illegally exacted.

Under that act suits in equity in proper cases, as well as actions at law, might have been maintained against collectors of customs by citizens of the same State; and upon the enactment, under the exigencies created by civil war, of the existing internal revenue laws, it became a question whether the general provisions of that act, giving jurisdiction of cases under the revenue laws, extended to cases under the new enactments.

This question was resolved by the internal revenue act of 1864, in the fiftieth section of which it was provided that the provisions of the act of 1833 should extend to all cases arising under the laws for the collection of internal duties.

It was while this section of the act of 1864 was in force that the suit in the present record was brought. Had it been suffered to remain in force the question of jurisdiction now under consideration could not have arisen.

But it was repealed by the act of 1866, without any saving of such causes as that before us. And not only was there no such saving, but it was expressly provided that 'the act of 1833 shall not be so construed as to apply to cases' arising under the act of 1864, or any amendatory acts, 'nor to any case in which the validity or interpretation of such act or acts shall be in issue.'

The case before us is a case under the act of 1864. It is a case of which, because of the fact that the appellants and appellees are citizens of the same State, we have no jurisdiction except under the act of 1833. And the act of 1866 declares that the act of 1833 shall not be construed so as to apply to such a case.

This is equivalent to a repeal of an act giving jurisdiction of a pending suit. It is an express prohibition of the exercise of the jurisdiction conferred by the act of 1833 in cases arising under the internal revenue laws.

It is clear, that when the jurisdiction of a cause depends upon a statute the repeal of the statute takes away the jurisdiction. And it is equally clear, that where a jurisdiction, conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction.

It is quite possible that this effect of the act of 1866 was not contemplated by Congress. The jurisdiction given by the act of 1833 in cases arising under the customs revenue laws is not taken away or affected by it. In these cases suits may still be maintained against collectors by citizens of the same State. It is certainly difficult to perceive a reason for discrimination between such suits and suits under the internal revenue laws; but when terms are unambiguous we may not speculate on probabilities of intention.

The rules of interpretation settled and established in the construction of statutes deny to us jurisdiction of the controversy in the record, because it is a suit between citizens of the same State, and the jurisdiction of such suits in internal revenue cases, conferred by the acts of 1833 and 1864, is taken away by the act of 1866.

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Insurance Company v. Ritchie/Opinion of the Court


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The Bird of Paradise

APPEAL from the Circuit Court for the Northern District of California, decreeing against a lien set up by ship-owners for freight, on libel filed against a cargo. The case was thus:

On the 16th March, 1863, Eccles, of Liverpool, chartered at that place from Taylor & Co., owners of the ship Bird of Paradise, that vessel, to carry a cargo of coal, of which Eccles was the owner, to San Francisco, California, at a rate agreed on per ton.

'The freight to be paid in Liverpool, on unloading and right delivery of the cargo, one-fourth in cash, one-fourth by the acceptance of Eccles, the charterer, at six months from the final sailing of the vessel, and the remainder by like bill, at three months from delivery, at charterer's office in Liverpool, of certificate of right delivery of cargo agreeably to bills of lading, or in cash, less five per cent., at freighter's option. The vessel to be addressed to the freighter's agent abroad. £500 to be advanced in cash at the port of discharge on account of the freight. ''The ship and her freight are bound to this venture. The penalty for non-performance of this agreement is to be the chartered freight in pounds sterling''.'

The master signed, and the freighter, Eccles, accepted, a bill of lading, in the usual form, for the cargo deliverable 'to order or assigns, he or they paying freight at the rate of _____, as per charter-party.'

The vessel sailed from Liverpool April 16, 1863, and arrived at San Francisco on the 26th December, 1863, a voyage of eight months and ten days.

The charterer, Eccles, paid the promised one-fourth of the freight before sailing, and gave his acceptance for the second fourth, at six months, falling due October 19, 1863, more than two months before the vessel arrived, but it was never paid, Eccles having failed in business, and remaining insolvent and a bankrupt. On the arrival at San Francisco, the £500 agreed to be advanced in cash at the port of discharge, was also paid; but the second acceptance, the one, to wit, for the residue of the freight, was not given, nor the amount paid in money.

The amount due for unpaid freight, regarding the first or dishonored acceptance as a nullity, was thus $7050.

The captain refused to deliver the cargo to the agents of Eccles, but kept control of it himself.

These agents accordingly filed their libel in the District Court for the Northern District of California against the cargo, to recover possession of it; the delivery being resisted under a claim of lien for freight.

That court considered that the claim was unfounded, and decreed accordingly, and the decree being affirmed by the Circuit Court, the correctness of such a view was now the question here on appeal.

Mr. Benedict, for the appellants, owners of the vessel:

I. This is an unconscionable action. The court will make all reasonable presumptions against the libellants.

Eccles chartered the vessel to carry a cargo of coal from Liverpool to San Francisco, a voyage of more than eight months. The vessel performed the voyage in safety, at the expense of the owners, and then finding the charterer bankrupt, refused to deliver the cargo to his agents, unless the freight was paid. The agents refused to pay the freight, and they brought this extraordinary action. Having had the use of the entire ship, without expense, for more than nine months, this bankrupt charterer demands the cargo free of freight, on the sole ground that he had given a written promise to pay the freight, which he neither had performed, nor, being as he was, a bankrupt, ever would or could perform.

A court of admiralty is a court of equity to the extent of doing justice and requiring justice; and it will, in a cause of possession, compel the libellants to do equity before it will transfer to him the possession. Freight is a most just demand.

Charter-parties are to be liberally construed.

II. The whole sum due-the entire balance of $7050-should have been paid before a delivery. The freight is a lien upon the cargo by the maritime law, and all presumptions are in favor of the lien. The ship is bound to the merchandise and the merchandise to the ship. This lien is not created by the act of the parties, but by the general maritime law, and is founded in public policy and the interest of commerce. The Kimball, in this court, is full to this effect. It gives to the owner and the shipper a responsible indorser and a responsible defendant in every port of the sea. And this rule-an elementary and cardinal one-is to prevail, unless the parties have intentionally excluded it-a thing to be inferred from plain language alone. Nothing can be inferred from silence. The burden is on the shipper to prove an absolute waiver of the lien. He has given no such evidence here.

Now, in this case, the freighter having failed-having become wholly bankrupt-there was no obligation to deliver, unless the whole amount due-we mean both that sum due on the protested draft, and that balance due after the £500 cash were paid at San Francisco-were paid in cash. There is in every contract for a payment by acceptances, when made in a case like this, a condition not the less fundamental because but implied-that the acceptor shall be solvent. This condition the law adds to the contract.

1. By the terms of the agreement, the giving an acceptance was 'non-performance' if it were not paid. It fell due before the end of the voyage, and not being paid at maturity, Eccles failed to perform his part of the contract. Moreover his bankruptcy demonstrated that he never could perform it.

2. So, too, the charter-party declares in substance, 'We have received your cargo, and it will be delivered to you if you pay as agreed in the charter-party. If you do not 'pay' it will not be delivered. We shall not deliver on dishonored acceptances-they are not payment.'

3. So, finally, by the now prevailing rules of commercial law, the rule at this day being, that a mere note or draft does not amount to a payment of a debt. Certainly, in cases of sales of goods conditionally, as for cash or indorsed paper, and the cash not paid or the notes not given and the property delivered the delivery is conditional, if the intent of either party that it should be so can be at all inferred from their acts and the circumstances of the case.

In a case very similar to this in New York, Comstock, J., said:

title: The Bird of Paradise


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188 whole, better governed himself than before, though not, indeed, to the degree of thinking it prudent to risk an articulate response.

"What do you remark? I respectfully repeat." But, as no answer came, only the low, half-suppressed growl, as of Bruin in a hollow trunk, the questioner continued: "Well, sir, if you will permit me, in my small way, to speak for you, you remark, respected sir, an incipient creation; loose sort of sketchy thing; a little preliminary rag-paper study, or careless cartoon, so to speak, of a man. The idea, you see, respected sir, is there; but, as yet, wants filling out. In a word, respected sir, the man-child is at present but little, every way; I don't pretend to deny it; but, then, he promises well, does he not? Yes, promises very well indeed, I may say. (So, too, we say to our patrons in reference to some noble little youngster objected to for being a dwarf.) But, to advance one step further," extending his thread-bare leg, as he drew a pace nearer, "we must now drop the figure of the rag-paper cartoon, and borrow one—to use presently, when wanted—from the horticultural kingdom. Some bud, lily-bud, if you please. Now, such points as the new-born man-child has—as yet not all that could be desired, I am free to confess—still, such as they are, there they are, and palpable as those of an adult. But we stop not here," taking another step. "The man-child not only possesses these present points, small though they are, but, likewise—now our horticultural image comes into play—like the bud of the lily, he contains concealed rudiments of others; that is,

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The Bird of Paradise/Opinion of the Court

'The analogies to be derived from the law of stoppage in transitu are perhaps not perfect, but they are sufficiently near to furnish a rule for the present case. When goods are sold to be paid for in the notes of the buyer, and he becomes insolvent before the delivery is complete, the seller may arrest the delivery and rescind the sale. There is nowhere in the terms of the contract any such condition. The law implies it, because the assumed ability of the buyer to pay for the goods was the inducement to the sale.'

But in this case we have the very terms of the contract. The charterer had failed to perform the charter-party on his part by not having paid his acceptance for the one-fourth. There was thus 'non-performance' of the agreement; and, by the terms of the contract, 'the penalty for non-performance of this agreement is to be the chartered freight in pounds sterling.' That is to say, in cash on delivery.

There were also in this case circumstances which aid in the construction of the contract. This, it must be remembered, was the longest voyage known to commerce, ending many thousands of miles from the parties; no security except the cargo; the cargo homogeneous, of great value and ready sale; the taking the bill of lading in addition to the charter-party; the making the acceptances fall due before the end of the voyage, so that, if not paid, the charterer would violate the charter-party and the master be entitled to enforce his lien for the whole freight by the bill of lading, and the improbability that any ship-owner would despatch his ship on such a voyage with no possible security for any freight: all these coincide with those provisions of the contract which provide for the usual lien.

III. But if this were not true as to the whole amount conceding that as to the second instalment the language of the charter-party ('the remainder by like bill at three months from delivery, at charterer's office in Liverpool, of certificate of right delivery') may place, as to that balance, the risk of solvency on the ship-owners-yet certainly as to the quarter for which the draft was given and not paid, the case is different. There has assuredly been no payment of that fourth; while payment of it was a condition precedent to delivery. In any view, by the terms of the contract, as well as by the now prevailing rule of commercial law, the giving of a worthless draft was no payment.

I. The provisions of the charter-party are inconsistent with any lien upon the cargo for the freight.

The freight was to be paid at Liverpool, the port of loading, not at San Francisco, the port of discharge. A payment to the master at San Francisco, therefore, would not protect the party making such payment. The freight was to be paid not concurrently with the delivery of the cargo, but partly in advance and partly three months after such delivery: 'One-fourth in cash and one-fourth by charterer's acceptance at six months from the final sailing of the vessel.' These payments were to be made in advance of any freight being earned, in consideration therefore not of having carried, but simply of agreeing to carry and of taking the cargo on board. 'The remainder, by like bill, at three months from date of delivery, at charterer's office in Liverpool, of the certificate of the right delivery of the cargo.' This portion was, therefore, payable also in Liverpool, and not payable there till a certificate should be produced at the charterer's office in Liverpool, that the cargo had been duly delivered in San Francisco, and then payable by bill at three months, or in cash, at charterer's option.

It is impossible to sustain a lien as for freight, under a special contract of this character, without disregarding the whole current of authority.

The lien exists only where the master has a right to demand the freight on unlading the cargo, or where the freight is payable so soon after the cargo is discharged as to imply a right in the master to detain for that short period; as in the case of The Kimball, in this court, relied on by opposite counsel, where the freight was payable, 'one-half in five, and one-half in ten days after discharge' of the cargo. There a distinction was drawn between a discharge of the cargo and the delivery of it, the period allowed being held 'only a reasonable one for examining the condition of the cargo.'

In the case at bar, however, the credit given was so long, and the provisions of the charter-party in reference to place of payment so inconsistent with any lien, as to make it quite clear that the contract was made upon the personal responsibility of the charterer and the consideration of the cash received in advance.

II. But the right of lien does not depend upon the solvency of the charterer. In fact, the lien is of importance to the owner only, as his remedies against the charterer are precarious. Accordingly, the cases on the subject are cases where the charterer was in default. In Raymond v. Tyson, there was a large arrear of charter-money. In The Kimball, the charterers had become insolvent, and though the lien was sustained, it was not on this ground. In Alsager v. The St. Katherine's Dock Co., the charterers were bankrupt, and the suit for the cargo was brought by their assignees, who were allowed to recover without paying freight. In Tamvaco v. Simpson, the acceptor for a portion of the freight in advance had become bankrupt.

The question whether there is a lien or not, depending as it does upon the charter containing terms as to payment, showing a credit given to the charterer inconsistent with a lien, must be determined by the charter itself, not by circumstances subsequently occurring. If, in fact, the owner has agreed to carry the cargo, without retaining a lien upon it, but looking to the personal responsibility of the charterers, whom he has agreed to trust for the freight, the charterer may sell the cargo in transit, as being free from freight, and his subsequent insolvency cannot charge it with a lien.

III. The common provision in a charter-party, binding the cargo to the ship and the ship to the cargo, is sometimes taken into consideration in determining whether the ship-owner intended to waive his lien for freight. It was so in The Kimball, cited on the other side. In this case, in lieu of such usual clause, the charter only binds the vessel and her freight, and does not bind the cargo. This unusual language is quite consistent with the provisions as to the time, manner, and place prescribed for the payment of the freight, which it is impossible to reconcile with any right to detain the cargo.

Mr. Justice CLIFFORD delivered the opinion of the court.

Assignees of the charter-party and of the bill of lading libelled the ship Bird of Paradise, her tackle, apparel, and furniture in a cause of contract, civil and maritime.

Breach of contract alleged in the libel is the refusal of the master of the ship to deliver the cargo as stipulated in the charter-party and bill of lading. Voyage was from Liverpool to San Francisco, and the cargo consisted of nine hundred and fifty-two tons of coal. Terms of the charter-party, material to the inquiry are, that the freight shall 'be paid in Liverpool on unloading and right delivery of the cargo,' at the rate therein prescribed, and in full of all other specified charges. 'Such freight is to be paid, say one-fourth in cash, and one-fourth by charterer's acceptance at six months from the final sailing of the vessel,. . . and the remainder by like bill at three months from date of delivery, at charterer's office in Liverpool, of the certificate of the right delivery of the cargo agreeably to bill of lading, or in cash under discount at five per cent. per annum, at freighter's option.' Other material clauses are, that the 'vessel shall' be addressed to the freighter's agent abroad, that five hundred pounds sterling shall 'be advanced in cash at port of discharge on account of the freight,' and that 'the ship and her freight are bound to this venture,' but it does not contain the usual clause that the cargo is bound to the ship. Bill of lading is in the usual form and contains the clause, 'they paying freight for the goods at the rate as per charter-party.' Sum advanced for first instalment of freight was subject to three months' interest, at five per cent. per annum, and cost of insurance. Charter-party was signed by the claimants, and the bill of lading was signed by the master. Ship was loaded by the charterer, and it is proved she arrived in safety at the port of destination with the cargo on board. Consignees demanded the goods, but the master refused to deliver the same unless the freight was paid contemporaneously with the delivery, placing the refusal upon the ground that the ship had a lien upon the cargo for the unpaid balance of the freight, but the libellants claimed that they were entitled to the delivery of the cargo without paying any freight except in the manner provided in the charter-party.

1. Proofs showed that the ship sailed on the sixteenth day of April, 1863, and that she arrived at the port of destination on the twenty-sixth day of December in the same year. Cash instalment of freight was paid as stipulated in the charter-party. Acceptance of the charterer given for the second instalment, payable in six months from date, was delivered to the claimants on the day the ship sailed from the port of departure. Before she arrived at the port of destination, the charterer failed in business, and became and is insolvent and bankrupt.

Payment of the acceptance was never made, and the proofs show that it is still held and owned by the claimants. Whole freight remains unpaid except the cash instalment paid before the ship sailed, and the five hundred pounds stipulated to be advanced in cash at the port of discharge. Amount due and unpaid is seven thousand and fifty dollars in gold, deducting the sum advanced at the port of discharge and including the residue of the last instalment and the unpaid and protested acceptance. Pending the suit, the cargo was delivered to the consignees under a stipulation that it should be returned to the master in case the claim of lien for freight should be sustained. Decree of the District Court was that the claim was unfounded; that the ship had no lien for freight on the cargo, and that the stipulation for the return of the cargo should be given up to be cancelled. Circuit Court affirmed the decree, and the claimants appealed to this court.

2. Equities of the case in view of the whole record are strongly with the ship-owner, but the questions presented for decision are questions of law and must depend upon the construction of the contract as expressed in the charter-party. Reference need not be made to the bill of lading, as it is in the usual form, and refers to the charter-party as the controlling evidence of the contract in respect to the matter involved in this controversy. Ship-owners, unquestionably, as a general rule, have a lien upon the cargo for the freight, and consequently may retain the goods after the arrival of the ship at the port of destination until the payment is made, unless there is some stipulation in the charter-party or bill of lading inconsistent with such right of retention, and which displaces the lien.

3. Such a lien is regarded in the jurisprudence of the United States as a maritime lien, because it arises from the usages of commerce, independently of the agreement of the parties, and not from any statutory regulations. Legal effect of such a lien is, that the ship-owner, as carrier by water, may retain the goods until the freight is paid, or he may enforce the same by a proceeding in rem in the District Court. But it is not the same as the privileged claim of the civil law, nor is it an hypothecation of the cargo which will remain a charge upon the goods after the ship-owner has parted unconditionally with the possession. Although the lien is maritime and cognizable in the admiralty, yet it stands upon the same ground with the lien of the carrier on land, and arises from the right of the ship-owner to retain the possession of the goods until the freight is paid, and is lost by an unconditional delivery to the consignee.

Parties, however, may frame their contract of affreightment as they please, and of course may employ words to affirm the existence of the maritime lien, or to extend or modify it, or they may so frame their contract as to exclude it altogether. They may agree that the goods, when the ship arrives at the port of destination, shall be deposited in the warehouse of the consignee or owner, and that the transfer and deposit shall not be regarded as the waiver of the lien; and where they so agree, the settled rule in this court is, that the law will uphold the agreement and support the lien.

4. Presumption is in favor of the lien as already explained, but it may be modified, or it may be excluded or displaced by direct words, or by the insertion of some stipulation wholly incompatible or irreconcilable with the existence of such a right. Contracts of affreightment, like other commercial contracts, where the language employed is ambiguous or of doubtful meaning, are subject to judicial construction, and it often happens that the terms of the instrument in respect to the payment of freight and the delivery of the cargo are so inaptly chosen that it gives rise to very close and embarrassing questions. Where the stipulation is, that the goods are to be delivered at the port of discharge before the freight is paid, without any condition or qualification, it seems to be agreed that the lien of the ship-owner for the payment of the freight is waived and lost, as the right of lien is inseparably associated with the possession of the goods. Unless the stipulation is, that the delivery shall precede the payment of the freight, and the language employed as applied to the subject-matter and the surrounding circumstances is such as clearly to show that the change of possession is to be absolute and unconditional, the lien is not displaced, as the presumption of law is the other way, which is never to be regarded as controlled, except in cases where the language employed in the instrument satisfactorily indicates that such is the intention of the parties.

5. Such precedent delivery, if absolute and unconditional, displaces the lien for freight, because it is repugnant to it and incompatible with it, but where the payment or security of payment is to be concurrent or simultaneous with the delivery of the cargo the lien exists in full force, and the ship-owner cannot be required to make the delivery until the payment of freight, or security, as the case may be, is tendered. Judge Story says the lien exists if it appears that the payment is to be made before or at the delivery of the cargo, or even if it does not appear that the delivery is to precede such payment.-(The Volunteer, 1 Sumner C. C. 571.) Accordingly, he held in that case, that the stipulation that the freight should be paid within ten days after the vessel returned to the port of departure, did not displace the lien on the return cargo, as the unlivery of the cargo might be rightfully postponed beyond the ten days after the return of the ship, when, by the terms of the charter-party, the freight would become due. Same defence, that is, the waiver or displacement of the lien by a clause in the charter-party giving credit for the payment of the freight, was set up in a subsequent case before the same court, in which the terms of the clause relied on afforded more color to the views of the respondent.

Terms of the stipulation in that case were, that the freight should be paid 'in five days after the vessel's return to, and discharge in, the return port of the voyage.' Argument of the respondent was, that the word discharge, as used in the clause, meant not merely the unloading of the brig, but the delivery of the cargo to the charterer or owner of the goods. Aided, however, by the terms of the bill of lading, which referred to the charter-party, the court came to the opposite conclusion, and held that the word discharge, as there used, meant merely the unlading of the cargo from the ship, without any reference to a delivery to the owner or consignee. Exactly the same rule was adopted and applied by this court in the construction of a similar clause of a charter-party in a case heard and decided at the last term.

Part of the charter-money, in that case, was agreed to be paid, and was paid, before the ship sailed, or during the voyage, and the stipulation was, that the balance should be paid, 'one-half in five and one-half in ten days after the discharge of the homeward cargo,' and the decision was, that the stipulation, construed in the light of another clause in the same instrument, which provided in effect that the ship should be bound to the merchandise and the merchandise to the ship, was not inconsistent with the right of the owner to retain the cargo for the preservation of the lien, as the clause was intended for the benefit of the charterer, giving him time to examine the goods and ascertain their condition, and to decide whether he would or would not take them and pay the freight. But the court remarked that the credit might be for so great a period as to justify the inference that the ship-owner intended to waive his right of lien; and it was decided, in an earlier case, that the lien may be waived without express words to that effect, if the charter-party contains stipulations inconsistent with the exercise of such a right, or where it clearly appears that the ship-owner meant to trust to the personal responsibility of the charterer.

6. Repeated decisions of the courts in Westminster Hall have adopted the same general rule, and in some decisions of very recent date the same principles have been applied in cases entirely analogous to the one now before the court. Settled doctrine of those courts is, that the law merchant gives to the ship a lien for the freight, or rather the right of the ship-owner to retain the goods until the freight is paid. They hold it to be a common law right, not cognizable in the admiralty; but they admit that special clauses in the charter-party, or bill of lading, inconsistent with it, operates as a waiver, and may destroy the right.

Unless, however, the special agreement is absolutely inconsistent with the retention of the goods, the waiver or displacement is not shown, and the right remains.

Recent decisions in that country put the principal question under consideration in a clear light, and leave no doubt, if the case were pending there, how it would be solved. Take, for example, the case of Alsager v. Dock Co., which was decided in the Court of Exchequer. Charter-party in that case contained two clauses material to be noticed. First clause was, that the vessel might discharge in any dock the shipper might appoint, 'on being paid freight' at the prescribed rate per ton. Second clause was, that the freight should be paid 'on unloading and right delivery of the cargo, two months after the vessel's inward report at the customhouse.' Conclusion of the court was, that the two clauses of the charter-party must be construed together; but they held that the freight was not payable until two months after the inward report, and that the ship-owner had not any lien on the cargo for the freight, because the delivery of the goods was required to precede the payment of the charter-money.

Terms of the charter-party in the case of Foster v. Colby, were substantially the same, so far as respects the principal question in this case. Freight was payable in that charter-party in three instalments, but the terms of the first two payments are unimportant. Material clause reads as follows, to wit: 'The remainder in cash, two months from the vessel's report inwards, and after right delivery of the cargo, or under discount at five per cent. per annum, at freighter's option.' Held, that the charter-party did not create any lien in respect of that part of the freight which was payable two months after the vessel's inward report, although the charter-party contained the stipulation that the owners of the ship should 'have an absolute lien on the cargo for all freight, dead freight, and demurrage.' Latter clause was intended, as the court held, not to enlarge the right of lien for freight, as generally understood, but to include dead freight and demurrage within the operation of the general provision.

7. Words of the charter-party in this case are that the third instalment shall be paid by 'bill, at three months from date of delivery at charterer's office, in Liverpool, of the certificate of the right delivery of the cargo, agreeably to the bills of lading.' Giving the usual meaning to language, it is plain that the intent of the parties was that the delivery of the goods should precede the payment of the freight, and it is equally clear that the delivery was to be without qualification and unconditional. Certificate of right delivery of the cargo could not be obtained until the vessel was discharged, and the cargo delivered, and, if forwarded by the next steamer, a month would elapse before it could be delivered at charterer's office in Liverpool, which would extend the credit to four months from the delivery of the cargo.

8. Appellants contend that, inasmuch as the charterer failed in business and became a bankrupt before the vessel arrived at the port of discharge, the case is taken out of the operation of those rules of law, even in respect to the last instalment. Basis of this argument is a supposed analogy between the ship-owner as against the shipper, and the vendor of merchandise as against the vendee, as exemplified in the law of stoppage in transitu, but it is not perceived that any such relation exists between the ship-owner and the charterer, or that there is any foundation whatever for the argument. Intention of the parties in the contract of affreightment, as in other commercial contracts, must be ascertained from the language employed, the subject-matter, and the surrounding circumstances, and it is clear that the question of construction cannot be affected in the smallest degree by the subsequent solvency or insolvency of one of the contracting parties. Credit was given in this case to the charterer for the payment of the last instalment of the freight of four months from the time when the goods were required by the terms of the instrument to be delivered to the consignee at the port of discharge, and it is too plain for argument that the subsequent insolvency of the charterer can neither erase that clause from the charter-party or shorten the term of the credit.

Insolvency of shipper occurring while the goods are in transit, or before they are delivered, will not absolve the carrier from his agreement as made, nor authorize him to retain the goods until the freight is paid, unless the lien exists independently of that occurrence.

9. Claim of the appellants, also, is that the ship in this case had a lien for the second instalment of the freight, secured by the charterer's acceptance, made payable in six months from date, and delivered to the ship-owner on the day the ship sailed. Acceptance became due, and the charterer also became a bankrupt before the vessel arrived at the port of discharge, and it is admitted that the acceptance is still held and owned by the ship-owner.

Established rule in this court is, that a bill of exchange or promissory note given for a precedent debt does not extinguish the debt or operate as payment of the same, unless such was the express agreement of the parties. Agreement of the parties filed in the case and made a part of the record, shows that the acceptance was presented to the bankrupt court, and that it has never been paid, and it is not pretended that it is of any value. Valueless as the acceptance is, the objection if made, that it had never been tendered to be cancelled, would be a mere technicality, but no such objection is made, and as the parties agree that it has never been negotiated it must be understood that any such objection is waived. Payment of that instalment of the freight therefore is not proved, and there is no evidence in the record tending to show that the lien for that instalment of the freight was ever waived. Ship-owner under the circumstances has a right to stand upon the original contract and to seek his remedy to that extent of his claim in the form to which it originally belonged as fully as if the acceptance had never been given.

Entire freight under this charter-party, except the small advance stipulated to be made at the port of discharge, was to be paid in the port of shipment. Port of shipment was also the port where the ship lay when the contract was made, and the terms of the contract afford the most plenary evidence that the parties regarded the charter-money stipulated to be paid at that port as freight in the usual and proper sense in which that word is understood in the maritime law.

10. Suppose, however, a different rule could be applied to the sum actually paid or advanced before the vessel sailed. Still that concession, if made, would not affect the question as to the second instalment in this case, because that instalment was not advanced in money, and has never been paid. Separated from the acceptance, which, under the decisions of this court, was not payment, it presents the ordinary case of a promise to pay freight and a failure to fulfil the contract, and in this point of view the case is clearly distinguishable from the decision in which it is held that sums stipulated in charter-parties to be paid in advance and not dependent on the carrier's contract do not have the incidents of freight, and are not protected by the lien of the ship-owner, unless by usage or special contract.

11. Foundation of those decisions is, that money advanced as freight cannot be recovered back, not even in case the ship is lost on the voyage, and the freight is never earned; because, as it is said, payment determines the lien, and anything accepted as an advance, such as a bill of exchange, is the same thing, unless there is an express agreement to the contrary. Undoubtedly an actual payment determines the lien to that extent, but it is not correct to say that a bill of exchange has the same effect, unless it be so agreed between the parties; and the settled doctrine in this country is, that freight paid in advance is not earned unless the voyage is performed, and that the shipper may recover it back, if for any fault not imputable to him the contract is not fulfilled.

12. Absence of the clause that the merchandise is bound to the ship cannot affect the question, as that is the presumption of the law-merchant, from the relation between the ship and the cargo, independently of any express stipulation, unless the presumption to that effect is negatived by the language of the contract. Whenever the owners of the ship constitute one party, and the owners of the cargo the other, the law of freight applies, and the fundamental rule, says Mr. Parsons, is that the rights of the respective parties are reciprocal, and that each has a lien against the other to enforce those rights, and the better opinion is, that the lien for freight commences as soon as the goods are delivered into the control of the master, or certainly as soon as they are put on board.

Usually the charter-party contains a clause binding the ship to the merchandise and the merchandise to the ship, but the law-merchant, as already explained, imposes that mutual obligation even if it be omitted.

Decree of the Circuit Court must be reversed with costs, and the cause remanded for further proceedings in conformity to this opinion. Libellants, upon the payment of the amount of the protested acceptance and interest and costs of suit, will be entitled to a decree that the stipulation given for the return of the goods shall be given up to be cancelled. Otherwise the libel must be dismissed.

DECREE REVERSED WITH COSTS.


text: Talk:The Bird of Paradise/Opinion of the Court


text:
United States v. The Commissioner

THIS was a writ of error to the Supreme Court of the District of Columbia.

The case in that court arose on a petition by McConnell for a mandamus to command the Commissioner of the General Land Office to cause to be prepared, signed, countersigned, recorded, and issued, a patent to him for the north part of the south half of section No. 10, T. No. 39 W., range 14 E., situate in the city of Chicago. There was a rule to show cause, and a return thereto by the Commissioner of the Land Office.

The right to the patent was founded upon a certificate of purchase by private entry at the register's office in Chicago, on the 15th June, 1836. The relator complained that he had been denied the patent, since the issuing of the certificate down to the present time, some twenty-eight years, though repeated applications had been made by him for the same.

The return set up that one Robert Kenzie entered this same land, under a pre-emption right, as early as the 7th May, 1831, five years before the relator's entry, and, that the letter's certificate of purchase on the 1st June, 1834, was cancelled on the 20th August thereafter, by the commissioner on account of this previous entry.

Several objections were taken to the legality of the entry by Kenzie, such as, that it was made in the wrong district, and, if in the right one, that the entry on this part of the south half of section No. 10 was in violation of law; which objections were answered by allegations that an act of Congress was passed confirmatory of the defective entry; and also, that the parcel entered and contested belonged to the north and not to the south part of the section.

It further appeard that a patent was issued to Kenzie 4th March, 1837, in pursuance of an act of Congress passed 2d July, 1836; but to this it was objected that the rights of the relator had become vested by the previous entry of 1st June, 1836.

The court below refused to grant the mandamus, and the case was now here for review.

Mr. McDougal, for the relator.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. The Commissioner


text: Talk:United States v. The Commissioner

title: Talk:United States v. The Commissioner


text:
United States v. The Commissioner/Opinion of the Court

Where the merit of the several objections and questions made in this case lie, we do not undertake to determine, nor can they be determined, understandingly, upon this record. Many of the acts of the parties, and of the officers, the registers, and commissioners of the Land Office, may be valid or void, depending upon the facts and circumstances attending them at the time, and which rest in parol, and are the proper subject of proofs. We have referred to them for the purpose of showing that this case is not one to which the remedy by mandamus can be applied. It calls for the exercise of the judicial functions of the officer, and these of no ordinary character. Indeed, however eminent, it is plain no intelligible decision could be made without the aid of facts not within his knowledge, nor attainable by proofs consistent with the proceedings in the case of mandamus. The duty is not merely ministerial, but involves judgment and discretion, which cannot be controlled by this writ. Besides, it appears that Kenzie was in possession when his entry was made in May, 1831, and was there in 1836; and, as the premises are situated in the settled part of the city of Chicago, it is but reasonable to presume that persons are at this time in possession of the same premises under his title who should have an opportunity to defend it. The relator has mistaken his remedy, for it his title under the certificate is valid, and presents a superior equity over the opposing title, as in the case of Lyttle et al. v. The State of Arkansas, and Lindsey v. Hawes, the appropriate remedy is by bill in equity.

Whether or not a mandamus will lie in any case to compel the issuing of a patent is a question not necessarily involved in this case; we have not therefore examined it, and express no opinion upon it. We have found no case in which this power has been exercised.

Patents are to be signed by the President in person, or in his name by a secretary, under his direction, and countersigned by the recorder of the General Land Office.

AFFIRMED.

Mr. Justice MILLER did not sit in the case.


text: Talk:United States v. The Commissioner/Opinion of the Court