16 U.S. 236 | SCOTUS | 1818
the opinion of the court. Both vessel and cargo, in this case, are claimed in behalf of M,' & J. Krause, Russian- merchants, resident at .Riga, %The documents and evidence exhibited Martin-Krause as the proprietor of the ship, but • the captain swears that he considered her as the property of the house óf M, & J.'Krause,- from their having exercised the ordinary acts of ownership over 'her ; and. in this belief he is supported by the fact that his contract k made with John Krause, by whom he appears to have been put in command of the ship.
In all its prominent features, this case bears a strikA y mg resemblance to the case of the St. Nicholas. A vessel,- documented as Russian, is placed under the ^solute controul of a British house, is dispatched under the orders of that house to the Havanna, where ■she is loaded under the directions of an individual of the name of Muhlenbruck, who assumes the character of agent of the Russian owners ; she is then ostensibly cleared out for Riga, but with express orders ’to call at a British port, and terminate her voyage under the orders of the same house, under the auspices of which .the adventure .had originated and been so far conducted.
Under these circumstances, it was certainly incumbent upon the claimant to show the previous correspondence of the British with the Russian house, and -thé immediate dependence of the agent at the Havanna, upon the Russian house for authority, instructions, and resources. When we come to compare the correspondence of Muhlenbruck with that of Smith, the agent in the St. Nicholas; we find here, also, a striking similitude. In that case, the supposed correspondence with the Russian principal is inclosed under cover
The material facts on which the court relies, in making up its judgment on the claim of the cargo, are the following:.
In the first place, there is a general shade of suspicion cast over the whole case, by the fact that all material papers relating to the transaction were mysteriously concealed in a billet of wood. Had there been nothing fraudulent intended, these papers ought to have been delivered along with the documentary evidence. But they were not discovered until betrayed by one of the crew. It is upon the investigation of these papers, principally, that, the circumstances occur which discover the true character of- this voyage.
Secondly. There is no evidence thaí this adventure was ever undertaken under instructions, from M. & J. Krause. But there is evidence - that every , ; . in - thing is set m motion at the touch of Bennet & Co. of London. And although they affect to act in the capacity of agents of the Russian house, even the 1 rules of the common law would constitute them principals, in a case in which they cannot exhibit the authority under which they assume the character' of agents. Again; there is no evidence that' any funds were furnished, by the Russian house for the purchase of this cargo. But there is evidence, and
Lastly; there is no evidence that Muhlenhruck was agsnt of M.-& «L Krause, and there is abundant evidence of his being the avowed and confidential agent 0f tha British house. "We see in the midst. of the anxiety to keep up the character of agent to the Russian house, this g'entleman,' without being awarG °f it, does an act which at once shows to whom he holds himself accountable. In his letter to Bennett & Co. of flie &4th of March, he requests them to inform the Russian house, that he has made certain advances on account of the ship; But why request Bennett & Co. to do this,- if he was himself in immediate connection apd correspondence with the Russian house ? The tact is, his correspondence with the Russian house'was fictitious, and his object was to inform Bennett and’ Co. in reality, whilst he feigned to address himself ip M. & J. Kráuse, and thus the letters to the latter house, covering the invoice and bill of lading, although of the same date with that to Bennett &' Co. omits this piece ■of information,'which, in a real correspondence, would be groundwork of a credit to himself, and contains ■nothing but the most general information, just enough
With regard to the vessel, it would be enough to observe, that. if a neutral ship-owner will lend his name to cover a fraud with regard to the cargo, this circumstance alone will subject him to condemntioh. But'in this case -there are, also, many circumstances to , _ . . , maintain a supicion that the vessel was British property, or at least not owned as claimed. Although this court, from extreme anxiety to avoid subjecting a neutral to condemnation-, has relaxed its rules in allowing time for. further proof in a case where there was concealment-of papers,,yet nothing has been brought forwaid to support the neutral character of the ship. No
Upon the whole,'we are satisfied that it is a case for condemnation both of ship and cargo.
Decree affirmed.
Translation of Exhibit, 287. A. “ On iha following conditions have I given to Captain Henry Behrens, the command of the ship Fortuna, under Russian colouis, lying at presenf in Riga.
1,-Captain Behrens shall' have 25 Alberts dollars monthly wages.
2. The whole cabin freigBt fcas been allowed him.
3, He is (o receive 6 per cent, primage,
4. Travelling expenses for the benefit of the vessel, as, • likewise, victualling expense* for (he use of the ship in port, consistent • with moderation, have been allowed to the captain.
Captain Behren-, on Bis part,'promises to watch the interest of his owner in every re
■ For the fulfilment Of the-present contract! bind myself by my signature.
Riga, the 12th of August, 1813.
Per Proc. John Krause, (Signed) Schultz.”
“London, 18th Nov. 1813. Capt. Henry, Behrens,
As we have settled your ship’s accounts by paying you a balance of 206Z. IBs. lid. up to November 13th, we now agree that the arrangement made with Messrs. M. fy J. Krause, when you weie last at Riga, shall continue in force, for the pending voyage, as far as relates to your pay and primage, and we agree to pay youta'gratuity of one hundred pounds (1001.) sterling at the exchange current, whenever your voyage shall end', and likewise to allow you your cabin freight at the rate which the ship receives for her cargo. We have ordered Mr. J. F. Muhlenbruck to supply you with the cash necessary ¡for your expenses in the Havanna when arrived out, which we beg may be as little as possible, And in cáse of your wanting any aid in Portsmouth, apply to ‘Mr. Andrew Lindergreen,. or in Plymouth, to Messrs. Fuge &. Son, or in Falmouth to Messrs. Fox Sf Son,- who will supply you on showing this letter. We desire tiiat you’will, with your ship Fortuna, as speedily as possible, join the West India convoy now laying at Portsmouth taking sailing instructions, and proceed with • the same Convoy to the Ilavonna, whfere you will apply to Mr. J, F Muhlenbruck, at Messrs. Ychazo & Carricabura, merchants there. You will receive at the Havanna Mr. J. F. Muhlenbruck’s instructions which you will follow implicit • ly. Mr. J. F. Muhlenbruck goes out to the Havanna on board the Robert Bruce, or' some other vessel in the convoy, if the Robert Bruee is too late. Should any accident’befal him in the vessel on board if which he goes, so that it is ascertained that Mr. J. F. Muhlenbruck cannot arrive at the Havanna, or if he should not. be- arrived there sixty
On your arrival at Leith apply to Ogilvie & Patterson.
’■Havannafiith March, 1815. Messrs. Eennet&Co. London
Gentlemen,
I have the honour to refer you to my last letters of 21st of February, and the 1st of March, of which I have sent you by different apportunitie* triplicates. ri he first letter principally contained to request tfie favour of your opening me a credit in Jamaica or
I have the nonour,- &e. (Signed^)
J. F. MUHLENBRUCK,’’
(Translation)
<tHavanna,'2iih March, 1814. Messrs. M.&I. Krause,Riga.
• With the present I have thehonour to send-you (he invoice and bill of lading of a cargo of Sugars 'foi you» esteemed account in the .Fortuna., Captain H. Behrens. The -sb8p could not take more than 1520 boxes white, and 600 •brown, with Cam peachy wood which was necessary for stowing ; together $57,-517- 4, for which you will please give me ■credit. The sugars are of the .new crop bought at a moderate price, and of a very good -quality. And I hatter myself you will be content with the fulfilment of your kind commission. As there is a convoy leaving this place to-morrow for Bermuda, I found it advisable for the Fortuna to join ‘ the same, and wish her a very quick ánd safe passage. Of the above documents I shall send yod duplicate» when 5 have the honour of witting you again. The prices of Bussian articles are at present — Raven’s Duck, $ 16, Canvas$42. Iron can only be sold whh a loss, and in small quantities, as the price has fallen, &.C-.
(Signed,)
J. F, MUHLENBRUCK”