The opinion of the court was delivered by: Johnson, J. delivered the opinion of the Court as follows:
APPEAL from the sentence of the Circuit Court for the
district of Connecticut, restoring the property to the Claimants.
The American ship Fanny, was laden at Greenock, in Scotland, with a cargo of British goods, the property of citizens of the United States, and sailed from thence on the 4th day of July, 1812, after the repeal of the orders in council, and before the war between Great Britain and the United States was known in Greenock. The orders to the captain were to proceed to New York; but unless he was perfectly sure of being allowed an entrance for ship and cargo at New York, he was not to go into the waters of the United States, but to send up a pilot boat with his letters, so that the consignees might fix upon a port of discharge. The master had no knowledge of the war until his arrival on the coast, when he received it off Montaug point, from a pilot boat, who also informed that several British frigates were off Sandy Hook, capturing American vessels. Whereupon he despatched the pilot boat, with letters for his owners by the way of New London. Soon afterwards it became calm and the ship drifting too near the shore he dropped anchor. In the course of the night it came on to blow a gale, and finding it impossible to lay there he attempted to get under weigh and stand off, but before he could get up the anchor and make sail he drifted so far in that he could not fetch Montaug point, and the pilot informing him that there was good anchorage ground in Fort-pond-bay, and that it would not be safe to keep out, he proceeded with the ship to that bay, intending to stand out as soon as the storm abated. Having there cast anchor and rode out the gale, his crew refused to get underweigh to go out of the waters of the United States, alleging that they understood he had a British license, and was going to put his ship under the protection of British ships of war and they were afraid of being impressed. He then determined to come out into the sound and there wait for orders, without going into any port. He did so, but was boarded about half way from Fort-pond-bay to the race, Fisher's island bearing north, and seized by a revenue cutter, who carried him into New London, where the cargo was libelled for having been shipped in Great Britain with the knowledge of the master, with intent to be imported into the United States, contrary to the provisions of the non-intercourse act of 28th June, 1809, vol. 10, p. 13. In the district Court the cargo was condemned, but was restored by the Circuit Court. From this sentence the United States appealed.
The cause was argued by JONES, for the United States, and DAGGETT, for the Claimants, in the absence of the reporter.
March 1st. Absent. TODD, J.
This case bears every feature of fairness. The voyage was undertaken upon the repeal of the orders in council. The vessel was laden in the short space of four days, and sailed without a knowledge of the war. Her destination was alternative–to New York, if she could enter; if not, to a British port. Upon arriving off Montaug, she receives notice of the war, and of the danger of capture in prosecuting her voyage to New York. A pilot boat is then dispatched to New London by the captain with notice to his owners of his situation, and a request for instructions.
To call off for instructions was fair and justifiable; and to obtain them it was necessary that he should await the return of the pilot boat. Thus circumstanced, a calm obliges him to drop anchor to prevent his drifting on shore and a storm forces him into a bay for shelter. Whilst there his crew mutiny, and prevent his leaving the bay, in order to lie off and await the return of his messenger; and whilst plying in the waters between Montaug and New London, he is seized by the revenue cutter, and forced into the latter port. We are of opinion that there was nothing either in action or intention which subjected this vessel to municipal forfeiture. A condemnation is claimed on no other ground; and the decree of of the Circuit Court must, therefore, be affirmed.
The claims of the several parcels of merchandize seized in the Fanny, rest on the same circumstances, and must likewise be restored.
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