The London Packet

15 F. Cas. 799 | U.S. Circuit Court for the District of Massachusetts | 1815

STORY, Circuit Justice.

The British ship London Packet was captured by the private armed brig Argus, Henry Parsons commander, on or about the 30th day of August, 1813, on a voyage from Buenos Ayres to London, and brought into Boston for adjudication. On the trial in the district court, the ship and all the cargo, excepting 0276 hides, was condemned as enemy’s property. The hides were claimed by the Spanish consul as Spanish property, and were finally restored, after an order for farther proof. ' Prom this decree of restoration, an appeal has been interposed to this court There were no invoices of the cargo brought in. but bills of lading only, and the master was released at sea, and put on board of another vessel. The preparatory evidence, therefore, is not of such confidential persons, as may be, and usually are, entrusted with the knowledge of the ownership of the property. There was also an irregularity in not bringing in all the papers found on board of tbe ship at tbe time of the capture. Some of tbe papers, -which are asserted to have been of a private nature, are shown to have been delivered back to the master; and we are left without any letters, or customary documents to explain the transaction of the voyage. It is not for captors to undertake to decide upon the materiality of papers, upon any opinion of their own. They, are bound to bring in all the papers, and leave the court to decide upon their real character and consequence. If they conduct themselves in a different manner, it is at their own peril; and they must expect to receive no countenance or assistance from the court, in aid of their own irregularity. I make this remark from an anxious desire to preserve the utmost exactness in prize proceedings, in as much as they not only affect the rights of our own citizens, but involve the most important interests of neutra' nations. It is equally due to our public cnar-acter as a belligerent nation, and to the integrity of our courts administering prize law, to discountenance every abuse, and every irregularity, which shall justly have a tendency, in the opinion of foreign sovereigns, to bring into doubt our scrupulous respect for the rights of neutrality, which on other occasions we have so strenuously maintained. Under all the circumstances of this case, I shall confirm the order of the district court for farther proof, and postpone a decision until that can be brought in.

At the succeeding term (May, 1815) the counsel of the claimant moved the court farther to postpone the cause, upon the ground, that by reason of the difficulty of communication, no return had yet been received to the commission sent out under the order for farther proof.

Mr. Blake, Dist. Atty., opposed this, contending that the claim of the consul, being without authority from the shipper, was not such a claim, as would protect the property from the operation of the rule, inflexibly observed in admiralty courts, that condemnation passes after a year and day.

STORY. Circuit Justice, granted the postponement, observing that this case differed from those, to which the rule of a year and day applied. There had been a claim. A consul was authorized to claim in behalf of subjects of his country. It was admitted in other countries, and he should be sorry, if a different rule were to prevail here. ’ It was also to be considered, that in this case, the captain had not been brought in, nor had all the papers. If they had been, a different case, perhaps, would have been exhibited.

At the present term, the farther proof having been brought in, the following decree was delivered:

STORY. Circuit Justice. The only question now before the court is, as to the proprietary interest of 6276 hides, claimed as the property of D. J. Marino, a Spanish subject, living at Buenos Ayres. The claim was ordered to farther proof in the district court, and after a considerable lapse of time, that proof has now been brought in. It establishes to my entire satisfaction the national character and domicil of the claimant, and that the hides were originally slipped by him. This however is but a very inconsiderable advance towards the establishment of the proposition, that the goods, during their transit, were at his risk, and on his account. The shipment was in an enemy's vessel, on a voyage to London, a port in the enemy’s country; and under such circumstances a legal presumption arises, that it belonged to an enemy, which presumption can be rebutted only by clear and distinct proofs of a neutral interest. The sole paper found on board at tbe time of capture, touching this shipment, was a bill of lading, which declares the hides to be shipped on account and risk of the claimant, consigned to Don Antonio Daubana, and, if absent, to William Hieland. There were no invoices, or letters of advice, respecting this, or indeed any other shipment to any of the consignees. This is a most extraordinary circumstance, and scarcely to be accounted for upon any other supposition, than that there has been a subtraction and concealment of the ship's papers by the enemy’s master, or by some other person. At all events, it called upon the claimant to offer the most explicit and decisive proofs of the integrity of his claim. And if the proofs should be doubtful, it could not but authorize the most unfavorable presumptions.

What then is the state of the farther proof now offered to the court? There is not any affidavit by the claimant, or his confidential agent or clerk, at the time of the shipment, of his interest in the cargo. This is the usual, and I had almost said the universal document, expected and required by prize tribunals. Its absence unavoidably throws a suspicion over the cause; and as it is wholly unaccounted for, it authorizes me to believe, that there has been a voluntary, if not a studied, omission on the part of the ■claimant. The only paper in support of the claim is a paper purporting to be a copy Of an original letter, which accompanied the shipment. But it is not a little remarkable, that this document stands altogether naked-of any attestations of genuineness by the claimant himself or by any confidential clerk in his counting-room, or by any comparison by a public officer of its contents with the original letter-book of the claimant. It is simply stated by a gentleman, calling himself the general attorney and conductor of the house of the claimant, to be a true copy. This may be true, and yet the paper, from which it is copied, might have been the spurious production of the same day. Something more was surely necessary to entitle it to credit. It ought at least to have been proved, when the original was -written, by what vessel it was transmitted to the consignee, and from what paper the present copy was made, with the other usual attestations of its genuineness, by persons conversant with the transactions at the time when the shipment was made.

[NOTE. At February term, 1817, this cause was heard in the supreme court, and upon the hearing ordered to further proof, with a direction to produce the original documents referred to in the proofs before the court. 2 Wheat. [15 U. S.] 371. Additional evidence was thereupon adduced, consisting of documents from the customhouses at Buenos Ayres, of the testimony of the consignee in London, and the affidavit of Mr. Marino. These documents establishing satisfactorily the fact that the proprietary interest in the hides was at the time of shipment and of capture in the claimant, Mr. Justice Livingstone, delivering the opinion of the court, rendered a decree reversing the sentence of the circuit court, and restoring the hides to the claimant. In consideration of the captors’ great expenses, however, caused by the delay of the claimant in producing evidence, it was ordered that the claimant pay to the libelants their costs and expenses in this suit. 5 Wheat. (IS U. S.)

Under such circumstances, I cannot say that the presumption arising from the shipment in an enemy’s vessel is so far repelled, that restoration of the property ought to be made. I therefore decree condemnation of the hides, as good and lawful prize to the captors, with their costs and expenses.

After the above decree was pronounced, and an appeal entered therefrom, the claimant, stating that he was now in possession of the affidavit of Marino showing the property to be in him, prayed that the case might again be opened; at least so far as to make this evidence a part of it.

STORY, Circuit Justice, said, if the decision here were final, he should think it reasonable to open the case, and to examine the farther evidence; and after an appeal, he considered it competent for the court to allow the evidence to be placed on the record with a memorandum, that it was brought in after the appeal. An order was accordingly entered, that the affidavit be placed on file, and transmitted with the record to the ■ supreme court de bene esse, subject to the order of that court.