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WILLIAM MALEY v. JARED SHATTUCK.

February 1, 1806

WILLIAM MALEY
v.
JARED SHATTUCK.



ON the 20th of August, 1804, Jared Shattuck exhibited his libel in the district court of the United States, for the district of Pennsylvania, in the following form:*fn1 To the honourable Richard Peters, Esq. judge of the district court of the United States, in and for the district of Pennsylvania. The libel of Jared Shattuck, merchant, most respectfully sheweth, That your libellant, being a subject of his majesty, the king of Denmark, sometime in or about the beginning of the month of May, in the year of our Lord 1800, at St. Thomas, one of his said majesty's West-India islands, loaded a certain schooner or vessel called the Mercator, being an unarmed merchantman, fitted out at St. Thomas aforesaid, for trade only, and being then and there bona fide the property of your libellant, with a cargo of merchandise, consisting of provisions, wines, and dry goods, for the sole and bona fide account of your libellant, said cargo amounting to 13,920 dollars, or thereabouts, on a voyage to Jacmel and Port-Republican, in the island of St. Damingo, which he consigned to Toussaint Lucas, also a Danish subject, then and there master of the said schooner Mercator, who was instructed by your libellant to dispose of the said cargo at Jacmel or Port-Republican aforesaid, to the best advantage, for account of your libellant, invest the proceeds in coffee of good quality, and return therewith to the said island of St. Thomas. And your libellant further saith, that on or about the 6th day of the said month of May, the said Toussaint Lucas sailed in the said schooner from the said island of St. Thomas, upon the said voyage for Jacmel and Port-Republican, having on board the said cargo, and also a private adventure belonging to the said Toussaint Lucas, together with all such necessary papers and documents, for ascertaining the property and neutrality of the said vessel and her cargo, as are usually carried by vessels belonging to Danish subjects; and proceeded on his said voyage until on or about the 14th day of the said month of May, when, in endeavouring to enter the said port of Jacmel, the said schooner Mercator was met with by a certain schooner, called the Experiment, a public armed vessel belonging to the government of the United States of America, and commanded by William Maley, a lieutenant in the navy of the said United States, who unlawfully, and in violation of the law of nations, took possession of the said schooner Mercator, and put on board of her a prize-master, and four seamen, who carried the said schooner Mercator, and her cargo, to places unknown to your libellant. And so it is, may it please your honour, that neither the said William Maley, nor any person or persons acting under him, have brought the said schooner Mercator, or her cargo, to legal adjudication in any court of the United States, having admiralty jurisdiction.

The opinion of the court was delivered by: To the end, therefore, that complete justice may be done to your libellant in the premises, may it please your honour to direct a monition to issue out of this honourable court, directed to said William Maley, Esq. commanding him forthwith to proceed in due form in this honourable court, against the said schooner Mercator, and her cargo, in order to obtain a legal adjudication of the same in due course of admiralty proceedings, or in default thereof, to appear before your honour, at such time and place as to your honour shall seem fit, to answer your libellant in the premises, and show cause why, by the said honourable court's final sentence and decree, he shall not be adjudged to make restitution in value, and pay to your libellant the whole amount of his loss aforesaid, with full damages and costs, and that such further justice may be done to your libellant in the premises, as to this honourable court shall ever seem meet, and your libellant shall ever pray, &c.

PETER S. DUPONCEAU, for libellant.

To this libel, Maley appeared,*fn2 and filed the protest following:

To the honourable Richard Peters, Esq. judge of the district court of the United States, in and for the district of Pennsylvania.

The protest of William Maley, Esq. late commander of the schooner Experiment, a public armed vessel of the United States of America, appearing here in court, to avoid all and all manner of contempt, contumacy and default, under this his protest, against the libel filed by Jared Shattuck, merchant.

This protestant, saving and reserving to himself all, and all manner of exception to the manifest uncertainties, imperfections and insufficiencies, in the said libel contained, and protesting that he ought not, in any wise, to be required to appear thereto, or to proceed against the schooner Mercator, and her cargo, as is therein prayed, nevertheless, for the reasons aforesaid, and as cause why the said libel should be dismissed without further appearance or answer, avers, propounds and says,

That true it is, that the said protestant, while commanding the said schooner Experiment, a public armed vessel of the United States of America, under a lawful commission and authority from the government of the said United States of America, did on or about the 15th day of May, 1800, meet on the high seas, and take possession of the said schooner called the Mercator, in the said libel mentioned, and put on board an officer and four seamen. But this protestant denies, that by so doing, he acted unlawfully and in violation of the law of nations; for he avers, propounds, and says, that since the passing of the act of the said United States of America, entitled, 'an act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof,' and before the said 15th day of May, 1800, that is to say, on the day of in the year 1799, the said schooner, called the Mercator, being an American registered vessel, owned, hired and employed by a person or persons resident within the said United States, or by citizens thereof, resident elsewhere, sailed and departed from the port of Baltimore, within the said United States, and at the time of her being met and taken possession of by this protestant as aforesaid, and before her return within the said United States, was proceeding directly, or from some intermediate port or place, to Jacmel, a port or place within the island of St. Domingo, within the territory or dependencies of the French republic. And this protestant further avers, propounds and says, that at the time of his meeting and taking possession of the said schooner Mercator as aforesaid, she was steering a direct course for the said port of Jacmel, and not for Port-au-Prince, whereas, the letter of instructions from the said Jared Shattuck, the libellant, and all the other papers exhibited to this protestant, by Toussaint Lucas, the master of the said schooner Mercator, or found on board thereof, falsely, fraudulenly, and colourably, represented and declared, among other things, that the said schooner was bound on a voyage from the island of St. Thomas to Port-au-Prince, a place then in the power and possession of the British troops, and not within the territory or dependencies of the French republic. And this protestant further avers, propounds and says, that at the time of his meeting and taking possession of the said schooner Mercator as aforesaid, the master thereof appeared to be a Frenchman (although this protestant has since heard, but does not admit, that he is an Italian) and the crew consisted chiefly of Portuguese and Italians, nor was there then, nor at any time before or since, exhibited to this protestant, any burgher's brief or briefs, or other evidence whatsoever, that the said master, or crew, or any part thereof, had become burghers of the said island of St. Thomas, or were otherwise naturalized subjects of the king of Denmark, without which this protestant avers, that the said master and crew could not lawfully command and navigate a Danish vessel, according to the laws and usages of Denmark. And this protestant further avers, propounds, and says, that the said Jared Shattuck, the libellant, alleging himself to be the owner of the said schooner Mercator and her cargo, and to be a burgher of the island of St. Thomas, (neither of which allegations is admitted by this protestant) was born in the state of Connecticut, one of the United States aforesaid, nor did it satisfactorily appear to this protestant, (considering the many other proofs and causes of suspicion to the contrary) at the time of his meeting and taking possession of the said schooner Mercator, as aforesaid, nor has it so appeared at any time since, that the said Jared Shattuck, the libellant, had, by any lawful act of expatriation, or otherwise, at any time, become a subject or citizen of any other government or nation, and ceased to be a citizen of the said United States, owing fidelity and allegiance thereunto; but admitting it to be true, that the said Jared Shattuck, the libellant, was an inhabitant of the said island of St. Thomas, this protestant did then, and does still, verily believe, that the said Jared Shattuck had repaired to the said island of St. Thomas, or remained there, for the purpose of carrying on an illicit and clandestine commerce with ports and places within the territory and dependencies of the French republic, during the hostilities which were then waged between the United States and the French republic, and also between the king of Great Britain and the said French republic. And this protestant further avers, propounds, and says, that believing, from all the appearances, circumstances, and reasonable and just causes of suspicion, herein before averred and propounded, touching the original American character of the said schooner Mercator, the voyage on which she was actually proceeding, the false destination declared and represented in the said letter of instructions, and other papers exhibited and found on board, the description of the master and crew, and the birth-place and original allegiance of the said Jared Shattuck, the libellant, that the said schooner Mercator, was a registered vessel of the said United States, voluntarily carried or suffered to proceed to a French port or place as aforesaid, and to be employed as aforesaid, contrary to the intent, and in defiance of the prohibitions of the said act of the congress of the United States, entitled 'an act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof.' This protestant, in obedience to the said act of congress, and to his official instructions, took possession of the said schooner as aforesaid, with a view to such further examination and proceedings as the law of nations, and the laws of the United States, should warrant, justify, and require. But this protestant avers that such possession was taken lawfully, upon the just and reasonable causes, motives, and designs, aforesaid, and with the utmost care, caution, and solicitude, that the said schooner Mercator and her cargo, should thereby suffer no injury, damage, or spoliation; and that the real national character, and the real commercial objects of the said schooner Mercator, of her pretended owner, and of the said master and crew, while prosecuting her said voyage, should be more fully examined, and satisfactorily ascertained, without any unnecessary detention or delay, this protestant, at the time of placing on board of the said schooner Mercator, an officer and four seamen, as aforesaid, did not remove, nor take therefrom, the said master and crew of the said schooner Mercator, or any of them, nor remove, take away, cancel, or destroy, any of the papers and documents of said schooner Mercator, and her cargo, but ordered the officer, so put on board of the said schooner, having on board her said master and crew, and all the documents and papers of the said schooner and cargo, to make the best of his way to Cape Francois, there to deliver all his letters to Silas Talbot, Esq. then commodore and commander of the public vessels of the said United States, upon that station, and to wait the orders of the said Silas Talbot, with express instructions, also, to pay particular attention to every thing belonging to the said schooner Mercator, and her cargo, seeing that nothing should go to waste, and to deliver the said schooner to the said master thereof, if the said Silas Talbot, commodore and commander as aforesaid, should clear her. And this respondent further avers, propounds, and says, that in a short time, not exceeding the space of six hours, or thereabouts, after the said schooner Mercator had parted from the said schooner Experiment, destined for Cape Francois as aforesaid, under the orders aforesaid, the said schooner Mercator was captured on the high seas, as prize, by a British private armed vessel of war, called the General Simcoe, commanded by Joseph Duval, who thereupon forcibly took the said schooner Mercator and her cargo, from and out of the possession, care, custody and controul, as well of the said master and crew, of the said schooner Mercator, as of the said officer and men who had been put on board of her, as aforesaid, by this protestant, and who were, thereupon, taken out of and removed from the said schooner Mercator, into, and on board of the said British privateer, and he said schooner Mercator and her cargo, sent to the island of Jamaica, under the charge of a prize master and men belonging to the said British privateer, without the assent, connivance, assistance, negligence, or fault, whatsoever, of this protestant, or of the officer and men whom he had put on board of the said schooner Mercator, as aforesaid, for the causes and with the intentions, aforesaid. And this protestant further avers, propounds, and says, that the said schooner Mercator and cargo, being so, as aforesaid, captured on the high seas, as prize, and sent to the said island of Jamaica, by the said British privateer, a libel, in due form of law was exhibited and filed by the said captors, in the court of vice-admiralty, lawfully established in the said island of Jamaica, (being a court of competent jurisdiction in all matters of prize) alleging, and charging, that the said schooner Mercator and cargo, were the property of France, or of the king of Spain, or of some person or persons being subjects of France, or of the king of Spain, or inhabiting within some of the territories of France, or of the king of Spain, and were good and lawful prize, inasmuch as hostility and war then notoriously subsisted between the king of Great Britain, on the one part, and the said French republic and the king of Spain, on the other part; and thereupon the said captors, in their said libel, prayed that the said schooner Mercator and her cargo, might be adjudged lawful prize, and be confiscated and condemned. And this protestant further avers, propounds, and says, that, notwithstanding the denial of the said Jared Shattuck, in his said libel contained, he, the said Jared Shattuck, received speedy and full notice, that the said schooner Mercator, and her cargo, were captured as prize, and sent into the said island of Jamaica, as aforesaid, and there prosecuted by the said captors as prize, in manner aforesaid; and, thereupon, a claim was exhibited, and a defence made, by and for the said Jared Shattuck, the alleged owner of the said schooner Mercator and her cargo. And upon hearing of the parties, by their respective advocates, and upon examining all the ship's papers and documents, together with other evidence and proofs in the cause, the judge of the said court of vice-admiralty, was pleased to adjudge and decree, that the said schooner Mercator, and her general cargo, were good and lawful prize, and did therefore adjudge, order, and decree, that the same be condemned and confiscated to the use of the said captors, &c. From which sentence, the said Jared Shattuck, the libellant, prayed leave to appeal, which was granted. But this protestant avers, that this appeal has not been duly prosecuted by the said Jared Shattuck, but has been altogether waived and abandoned.

And this protestant further avers, &c. that at the time of the capture of the said schooner and cargo, by the British privateer, as aforesaid, and at the time of the libel and of the condemnation, and of the appeal; as aforesaid, peace and amity notoriously subsisted between the United States of America, and the king of Great Britain and the king of Denmark; and also between the said king of Great Britain and the said king of Denmark, and their respective citizens and subjects: and, therefore, this protestant avers, that if the allegations contained in the libel of the said Jared Shattuck, had been true, sentence of condemnation and confiscation, as prize, could not, and would not, have been pronounced, as aforesaid, against the said schooner Mercator and her cargo, by the said court of vice-admiralty, having competent jurisdiction upon all matters of prize, as aforesaid, and therein proceeding according to the law of nations and the faith of treaties.

Wherefore, this protestant prays that the said libel may be dismissed with costs, &c.

A. J. DALLAS, for the protestant.

The replication of Shattuck, was as follows:

To the honourable Richard Peters, Esq. judge of the district court of the United States, in and for the district of Pennsylvania.

In the case of the schooner Mercator, and her cargo, Toussaint Lucas, master.

The replication of Jared Shattuck, late owner of the said schooner Mercator, and her cargo, to the protest of William Maley, Esq. late commander of the public armed schooner of the United States Experiment.

This replicant, not confessing or acknowledging any of the facts, matters, and things, by the said William Maley, in and by his said protest set forth, propounded and alleged, and also saving and reserving to himself all, and all manner of exception to the manifold uncertainties and insufficiencies in the said protest contained, and to the informality thereof, and protesting on his part, that the said William Maley ought to have appeared absolutely, and not under protest, and made direct answer, upon oath or affirmation, to the charges in this replicant's libel contained, or to so much thereof as he has been advised to be material for him to reply unto: Doth aver, allege, propound and say, that this replicant was born in the state of Connecticut, in the year 1774, and when he was between fifteen and sixteen years of age, viz. about the end of 1789 or beginning of 1790, the United States being then at peace with all the world, he migrated to the island of St. Thomas, one of the dominions of the king of Denmark and Norway, with a view to settle and establish his permanent residence in that island. That he served his apprenticeship there, with a mercantile house, for about six years, and from his first arrival, has constantly and permanently resided, and now continues to reside there. That on the 10th of April, 1797, the United States being still at peace with all the world, he became a naturalized Danish subject, and burgher of the island island, and shortly afterwards, intermarried with an inhabitant of that place, by whom he has several children, all living in that island. That he did acquire, and now holds real estate there, and is there permanently settled and established, and carries on the trade and business of a merchant.

The replication then goes on to deny, that he went or remained there for the purpose of illicit trade. It avers, that during the war between France and Great Britain, which terminated by the treaty of Amiens, he was largely concerned in trade, at and from St. Thomas to foreign ports, and had a number of vessels navingating under the Danish flag in the West-India seas. That several of his vessels were taken, as well by British as French cruisers, carried into their respective islands, and there acquitted, and his neutral character, and that of his property, was acknowledged by the tribunals of both nations.

That in May, 1800, he loaded the Mercator, as mentioned in his libel, and sent her on a voyage to St. Domingo, consigned to the said Toussaint Lucas, who was also a bona fide subject. That the original destination of the vessel was for Port-au-Prince, alias Port Republican, a place then in the power, and under the dominion of the negro general Toussaint, not of the British troops, as stated in Maley's protest. That at that time commerce was lawfully carried on between the United States and ports of St. Domingo, which were in the power of general Toussaint. That on the 3d of May, 1800, he gave written instructions to Lucas, to proceed with his vessel to Port-au-Prince, but as she was ready to sail, he was informed that the forces of general Toussaint had taken. Jacmel from general Rigaud, who held for the French republic. That Jacmel is a port of the island of St. Domingo, which lies between the island of St. Thomas and Port-au-Prince, and is in the way between the former and the latter. That the distance from Jacmel to Port-au-Prince, is by land only between thirty and forty miles, but by sea upwards of one hundred leagues. That conceiving it to be advantageous to try the market at Jacmel, before proceeding to Port-au-Prince, he gave verbal directions to Lucas for that purpose.

It denies that any thing false or colourable was intended, and that any of the Mercator's papers were false or colourable, and that he gave any orders to Lucas to deny or conceal his intention of going into Jacmel.

It admits, that after the passage of the act of congress, 'further to suspend,' &c. and before the 15th of May, 1800, the Mercator was an American registered vessel, owned by a citizen of the United States, and sailed from Baltimore, but denies, that when taken by Maley, she was navigating contrary to the laws of the United States.

It avers, that on the 26th of November, 1799, he purchased her bona fide at St. Thomas, for the sum of 8,500 dollars, which he had actually paid and took a bill of sale, which was on board at the time of her capture. That from the day of purchase until her capture, he was bona fide the sole owner, and that no other person had any interest in her or her cargo. That almost the whole shipping of the island of St. Thomas, consists of vessels built in the United States and in the island of Bermuda, and brought to the former island for sale.

That at the time of her capture, the Mercator was navigated as a bona fide Danish vessel, and had on board every paper and document which the law required to prove her neutrality; and especially that she had, 1st. The king's passport, in the usual form. 2d. The certificate of measurement. 3d. Her muster-roll, or official list of her crew. 4th. The bill of sale. 5th. The burgher's brief of her captain, Toussaint Lucas. 6th. Her clearance. 7th. The invoice and bill of lading of her cargo duly attested, as to the ownership and neutrality thereof. 8th. The captain's instructions or sailing orders; and 9th. A certificate, upon oath, of several respectable merchants of the island, attesting the fact of Schattuck's citizenship and residence in the island. That the crew consisted of eleven persons, viz. the master, the mate, seven seamen, the cook and a boy, who were all by birth Italian or Portuguese. That the master was a native of Leghorn, in Tuseany, was a Danish subject, and had resided seven years in St. Thomas. That very few Danish seamen are to be had in the Danish islands; and that, except the officers of government, there are very few Danes in the islands of St. Thomas and St. Croix, the inhabitants being chiefly native English and Americans, with some French and other foreigners.

It denies, that by the laws of Denmark, a vessel cannot be lawfully navigated by others than Danish or naturalized Danish sailors, and avers, that the crew may be subjects of any nation whatever, provided that in time of war, not more than one-third thereof be native subjects of one or other of the belligerent powers. It denies of one or other of the Mercator were subjects of any of the belligerent nations; and that at the time of her capture, there was any reasonable cause of suspicion that she was an American vessel carrying on an illicit trade. It submits to the court, whether Maley had a right, by the law of nations, to arrest a vessel on the high seas, sailing under the protection of his Danish majesty's royal passport, under pretence of a violation of a municipal law of the United States.

It suggests that Maley acted mala fide, and offers to prove that he was in the habit of violating the law of nations, and the instructions of his government, with respect to neutral vessels and property, and that he was dismissed from the service of the United States, principally on that account.

With respect to the capture by the British privateer, it admits that the Mercator was so captured, while under the protection of the United States, and their national flag, but does not admit that it was without the connivance or fault of Maley, or the officer whom he put on board. It admits the condemnation as prize, but avers that it was the duty of the officer and men to have resisted the capture, and to have demanded of the court of vice-admiralty, at Jamaica, restitution of the vessel and cargo, on the ground, that the same had been unlawfully, and in violation of the respect due to the national vessels of the United States, and to the flag thereof, taken from the possession, and from under the protection of the commander of one of the public vessels of war of the United States.

It admits that Lucas filed a claim for the vessel and cargo, before the vice-admiralty court at Jamaica, and that they were condemned as prize, but alleges that the sentence of condemnation was contrary to the evidence. It admits also, that an appeal was entered, and exhibits an exemplification of the proceedings. It denies that Lucas was bound to exhibit a claim, or to appeal from the condemnation, and that Shattuck was bound to prosecute the appeal, but avers that the whole should have been done by or in behalf of the United States, to whom alone the vessel and cargo would legally have been restored, as having been taken from their possession, and from under their protection.

It avers that Shattuck, as soon as he received notice of the capture and condemnation, gave information thereof to the governor-general of the Danish West-India islands, and to Richard Soderstrom, charged with the consular functions for the king of Denmark, in the United States, who communicated the information, without loss of time, to the government of the United States, and claimed reparation. That the government of the United States expressed a wish, that the appeal should be prosecuted, in compliance with which, Shattuck, without delay, forwarded the necessary papers to England; but when they arrived, he was informed by his proctors that it was useless to prosecute the appeal, because the prize-money had been distributed, and the prize agent had died insolvent.

It denies that the vessel and cargo would not have been condemned if they had been really and bona fide neutral property, and avers, that they really were such as stated in his libel, and does not admit that he is precluded by the sentence of the court of vice-admiralty of Jamaica, from showing the same.

It concludes, 'that for aught that has been said and alleged by the said William Maley, in his protest aforesaid, this replicant ought not to be precluded from obtaining the benefit of the praver of his said libel; he therefore prays, that the said William Maley may, by the interlocutory decree of this honourable court, be ordered to appear absolutely, and without protest, before your honour, so that further justice may be done by this honourable court in the premises, as to right shall appertain.'

(Signed) JARED SHATTUCK.

Jared Shattuck being duly sworn according to law, on his oath doth say, that all and singular the facts, matters and things, by him in the foregoing replication stated, as far as they relate to his own acts, and matters within his own knowledge, are true; and inasmuch as the same relate to the acts of others, he verily believes them to be true.

(Signed) JARED SHATTUCK.

Sworn before me the 26th of May, 1804.

(Signed) RICHARD PETERS.

The rejoinder of Maley was as follows:

This rejoinant saving and reserving to himself all, and all manner of exception to the manifold uncertainties and insufficiencies in the said replication contained, and not confessing or acknowledging any of the facts, matters and things by the said Jared Shattuck in and by his said replication set forth and alleged, but denying the same, saith, that the facts in this rejoinant's protest set forth, are true and sufficient to excuse him from further appearance and answer to the libel of the said Jared Shattuck.

(Signed)

A. J. DALLAS, for WILLIAM MALEY.

Whereupon it was adjudged, ordered and decreed, that the libel be dismissed with costs.

From which decree Shattuck appealed to the circuit court.

Upon the appeal, the circuit court*fn3 being of opinion that the appellant was entitled to restitution, with damages and costs, reversed and decree of the district court, overruled and rejected the protest of Maley, and ordered him to appear absolutely without protest, before the district court, to whom the cause was remitted for further proceedings.

In the district court, upon the remission of the cause, the following entry was made:

And now, to wit, this 9th day of August, 1805, the said William Maley, by Alexander James Dallas, his proctor aforesaid, having appeared absolutely as aforesaid, comes here into court, and for answer to the libel of the said Jared Shattuck, propounds and says, that the facts by this respondent in his said protest set forth are true, and to the intent that justice may be done in the premises, this respondent prays that the said Jared Shattuck may be called upon to declare, on his solemn oath, to whom and when, and in what manner, he paid for the said vessel called the Mercator, and whether the original American owner hath any interest therein, or in the restitution in value, by the said libel prayed for; and whether any correspondence, and what, took place between the said Jared Shattuck, and the captain of the said vessel, or any other person, after she was carried into Jamaica; and whether any correspondence, and what, took place between the said Jared Shattuck and any persons, and whom, relative to the prosecution of an appeal from the decree of condemnation in Jamaica; and whether the said Jared Shattuck made any, and what application, and when, to the American government, relative to the capture of the said vessel by this respondent, as aforesaid, &c.

A. J. DALLAS, for respondent.

And thereupon the said Jared Shattuck, under all legal protestations and reservations, for replication to the answer of William Maley, above-mentioned, saith, that all and singular the facts, matters and things by him this replicant in his libel, and in his replication to the answer under protest of the said William Maley, filed in this honourable court, are true. Without this, that the facts by the said respondent, in his said answer under protest set forth, are true.

He therefore humbly prays, that this honourable court, by its final decree in this cause, will be pleased to order, adjudge and decree, that the said defendant, William Maley, make restitution to this replicant of the value of the schooner Mercator, her rigging, tackle, apparel, &c. and of her cargo, at the time of her capture by the United States armed schooner Experiment, under the command of the said respondent; and that the said respondent pay to the said replicant the amount of the capture and loss of the said in consequence of the capture and loss of the said schooner Mercator, and her cargo; the said value and damages to be inquired of, estimated and ...


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