The Solidad Cos. THE SCHOONER SOLIDAD COS AND CARGO. Cargo condemned, as enemy property, and also for an attempt to violate the blockade. (Before BETTS, J., December, 1861.) BETTS, J.: This vessel was captured September 11, 1861, off Galveston bar, by the United States vessel-of-war South Carolina, ostensibly bound on a voyage from Vera Cruz to Matamoras or Key West. The owners of the cargo resided in Texas or Louisiana, and went out and returned on board the vessel. They sailed with her from Galveston in August previous, owning the outward cargo of cotton she carried. The vessel was in charge of her owner, who acted as mate. He had resided six years in Texas with his family. A sham sale was made by him of the vessel in Tampico, in order, as it appeared, upon the proofs in preparatorio, to put her in the name of a Mexican owner, for the proposed voyage or adventure. No consideration was paid by the purchaser, and he took an engagement from the vendor, that, on the return of the vessel to him at Tampico, his notes for the purchase money should be restored to him, and the vessel be returned to her American owner. All on board the vessel knew that the Gulf ports were blockaded when they left Galveston, and the vessel ran the blockade, in going out, by avoiding the main channel and making her exit through a different and obscure one. The mate testified, on his examination, that the vessel, at the time of her capture, had received no notice of the war, or of the blockade at that port, and that he had pursued his voyage for Matamoras or Key West, and had not attempted to enter any blockaded port. Another of the ship's company proved that the vessel had passed Matamoras when she was taken, and had not attempted to enter that port, and did not steer for it or Key West, but made a course to enter some of the American Gulf ports. The vessel, when captured, was found unseaworthy, or so feeble that she could not be safely sent to a northern port, and her cargo was taken out and transmitted on the United States brig Delta to this port, where it has been libelled. Upon the facts in proof, this cargo was manifestly enemy property when arrested, and is liable to condemnation as such. It was also intended, by the master of the vessel, to take it into some one of the blockaded ports, and this endeavor must be presumed to have been The Albion. known and acquiesced in by the owners of it on board, if not directed by them. Upon either ground, accordingly, that the cargo is enemy property, or that it was intended to carry it into a blockaded port, in violation and fraud of the blockade, the cargo is subject to forfeiture. (Jecker v. Montgomery, 18 How., 110.) The pretence of the actual owner of the vessel that he was ignorant of the blockade at Galveston, because he had not been warned off or had personal notice of the same, or of the existence of the war, is shown, by the other proofs, to be deceptive and untrue. Judgment of condemnation of the property seized. THE SCHOONER ALBION. Vessel and cargo condemned as enemy property, and for a violation of the blockade. (Before BETTS, J., January, 1862.) BETTS, J.: The return into court of the proof taken by the prize commissioners having been opened by order of the court, and judgment of condemnation of the vessel and cargo being moved thereon by the United States attorney, and no person appearing to oppose the same, an interlocutory order of condemnation, pursuant to the motion, was granted. On the submission of the proof so brought in for the consideration of the court, the same were examined and showed the case to be this: The vessel was captured with her cargo, by the United States ship-of-war Penguin, on the 25th of November, 1861. She was first discovered making for a port six or seven miles off North Edisto, in South Carolina, and twelve or fifteen miles southeast of Charleston; but on being pursued by the Penguin, veered her course northerly, in the direction of New York. She exhibited to the captors a certificate of British registry to Pembroke Saunders, of Nassau, N. P., merchant, executed November 13, 1861, and a certificate of the due clearance of her cargo by the receiver general at that port, November 16, and an affidavit taken before the British consul there resident, of Henry R. Saunders, to the verity of the invoice of the cargo. With these documents were bills of parcels of the cargo shipped, and the shipping articles purporting to have been executed by the master and crew of the schooner, on the 15th of November, for a voyage from Nassau to New York, and back to the port of Nassau. The Albion. On the 23d of November the schooner was boarded by Lieutenant Wiltse, of the United States navy, from the ship-of-war St. Lawrence, off the coast of Georgia, who indorsed on her register a warning not to enter any port south of Hampton roads, on account of the blockade. Two of the seamen, examined in preparatorio, testified that they had no knowledge of any attempt or design on the part of the schooner to enter a blockaded port, nor any actual knowledge that Charleston or the contiguous ports were blockaded, and supposed she was truly performing a voyage from Nassau to New York. One of them, however, admits that the vessel had run so near the South Carolina coast, and headed so directly towards it, as to render her movements suspicious. The other witness, however, on his examination before the prize commissioners, made an unreserved and apparently ingenuous and credible exposure of the enterprise. He was the mate of the vessel and part owner of her and the cargo. He states that he and her master, and the other owners of the vessel and cargo, have for very many years been residents, with their families, in Savannah, Georgia. The vessel was furnished by them solely with their own funds, as was the cargo. The voyage commenced from Savannah to Nassau. The vessel was there laden with cargo owned by them, and sailed for their benefit. They had long known of the blockade of Savannah and Charleston, and of the southern coast generally. Her voyage was to be from Savannah to Nassau, and back from Nassau to Savannah, or some such blockaded port as they could get her into; and, after she departed from Nassau she was never directed towards New York, nor intended to make that course, further than that, on discovering that she was chased by the United States war-ship which captured her, she assumed a course towards New York, hoping to escape the pursuit. It is needless to detail the testimony further. There are no facts produced in contradiction of this evidence, and it is conclusive of the criminality and confiscability of the vessel and cargo, both as showing it to be wholly enemy property, and as demonstrating that if it could successfully wear a neutral cloak, it was procured, shipped, and transported for the purpose of evading the blockade it was attempting to run when captured. Judgment and condemnation as lawful prize of vessel and cargo. The Hannah M. Johnson. THE SCHOONER HANNAH M. JOHNSON AND CARGO. (Hearing on further proofs.) Enemy property, shipped by an enemy, from an enemy port to his creditor to be applied on a debt, but which, before it came to the creditor's hands, was captured at sea, continues to be enemy property. The transfer to the creditor cannot be carried into effect after the intervention of the legal rights of the captors. (Before BETTS, J., January, 1862.) BETTS, J.: The decision in the above cause, on the hearing upon the pleadings and the proofs in preparatorio, concludes, after condemnation of the cargo, with costs, as being enemy property, with the provision following: "Leave, however, being given to the respective claimants thereof to produce further proofs that the cargo, when shipped, belonged to neutral or loyal owners, such further proofs are to be furnished at the cost of the claimants, and are to be given within ten days from the entry of this decree, unless further time be allowed therefor by the court or by stipulation of the libellants." On the 8th of January instant the counsel submitted further proofs taken upon their mutual attendance before a commissioner of the United States courts, with their respective arguments to the court thereon. This attempt to protect the cargo was, however, limited to the claim of ninety-nine hides in behalf of Leopold Lithauer, to which some further proofs were produced and addressed, and nominally also, to the claim interposed in behalf of C. C. & H. Faber, of New York, to sixty bales of cotton. That claim was not upheld before the court after the further proofs were introduced, but I understand, from extraneous suggestion, that it was the understanding of counsel, that the court should consider and pass upon the further proofs in this respect also, as part of the matter submitted for the judgment of the court. The hides were shipped by Wiener, in his own name, and continued to be his property to the time of capture. They never came to the hands of Lithauer by actual or symbolical delivery from the New Orleans owner. They were designed, no doubt, in the process of negotiation and arrangement between Wiener and Lithauer, to be remitted by the former, and were expected to be accepted by the latter, in credit upon an open account in their mutual dealings, but had never, in the transition, so changed hands as to become the property of Lithauer, or to operate as an acquittance to their value of the liabilities of Wiener to him. They remained, in point of law, the property of the New Orleans merchant, and must have continued so, without his consent had been procured to indorse the bill of lading to Lithauer, or The Hannah M. Johnson. otherwise transfer the merchandise to him. It was, no doubt, a mental understanding and purpose with Wiener that the goods should go to Lithauer, but that design, if existing, failed of being carried into effect, and, by the rules of prize law, could not be done after the intervention of the legal rights of the captors. (Wheat. on Captures, 85, sec. 16; The Abo, 1 Spinks' Prize Cases, on appeal, 46.) Accordingly, the hides left New Orleans in the ownership of a trader resident there for many years, and after the war between that State and the United States was set on foot, and when seized were enemy property. The master of the vessel has alone intervened and claimed the hides in the character of owner and carrier; but he shows no proof of any right of property in the hides in himself. It accordingly follows that the exportation of them from New Orleans was by the shipper for his own interest. The claimants, Faber & Co., in the testimony given on the further proofs prove that, in June last, they received the sixty bales of cotton shipped in the Hannah M. Johnson, as consignees and cotton-brokers. No bill of lading accompanied the shipment. The master's manifest, attested at New Orleans the 14th of May last, and his freight list of the same date, represent the cotton as shipped at New Orleans by F. M. Fish. It was remitted, through the agency of Jacob Barker, for Mr. Fish, who was at the time a resident also of New Orleans. The order to deliver the goods to Barker was made on the drayman's receipts of the cotton on board the vessel before she sailed from New Orleans, May 14, and Fish's letter addressed to Barker in New Orleans, May 22, shows that Fish still continued to act as owner of the goods, and directed their consignment in New York to Faber & Co. Mr. Barker subsequently, on the 23d of July, by letter of that date to New York to Faber & Co., recognizes Fish's ownership of the cotton, and directs them to deliver it, or the avails of it, to Hendrickson, of Rhode Island. Mr. Barker never made any advances to Fish upon the assignment of the cotton to him, and Fish continued to act as the sole owner of it until the time it, or its avails, went to Hendrickson, which was not until July last. Mr. Fish still continues a resident of New Orleans. The further proofs introduced by these parties have no way varied the case as it stood upon the original evidence, and the decision before pronounced must now be made final in respect to those portions of the cargo also. Judgment accordingly |