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THE ATLANTA.–Foussat Claimant.

March 4, 1818

THE ATLANTA.–FOUSSAT CLAIMANT.


APPEAL from the circuit court for the district of Georgia. This ship, being a British armed vessel, was captured in the year 1814, on a voyage from Bordeaux to Pensacola, by the sloop of war Wasp, and sent into Savannah, in Georgia, where she was libelled, and condemned in the district court as prize of war. The cargo, which was claimed for M. Foussat, a merchant domiciled at Bourdeaux, was also condemned. On appeal to the circuit court as to the cargo farther proof was ordered, and restitution decreed to the claimant. The cause was then brought by appeal to this court. The vessel was owned by Messrs. Barclay, Salkeld & Co. of Liverpool, who were also owners of large cotton plantations near Pensacola. She sailed from Liverpool on the 14th of August, 1814, for Bordeaux, laden with a cargo, part of which, about equal in value to the cargo subsequently taken in at Bordeaux, belonged to the owners of the ship; and the documentary evidence showed that her ultimate destination was Pensacola or the Havanna. A few days after the arrival of the vessel at Bordeaux she was chartered by the claimant, who then had a vessel of his own lying unemployed in that port, and the cargo claimed was put on board in September, 1814. One Pritchard, who sailed in the vessel, was a British subject, and according to some of the testimony, acted as supercargo. At the time of the capture, the master and Pritchard were taken out of the vessel and carried on board the Wasp, which ship has never since been heard of, and is supposed to have been lost at sea. The proceedings in the district court were extremely irregular; no examinations of the prisoners on the standing interrogatories having been taken, and witnesses having been examined in the first instance, who neither belonged to the captured nor the capturing vessel. The farther proof produced by the claimant in the court below consisted of an affidavit of the claimant, swearing to the property in himself, and a certificate of two royal notaries at Bordeaux, that the copy of a letter from the claimant to Vincent Ramez, the consignee at Pensacola, dated the 28th of August, 1814, and stating the object of the adventure, was truly extracted from the claimant's letterbook. Mr. Berrien, for the appellants and captors, argued, that the cargo was liable to condemnation, 1st. As being laden on board an enemy's armed vessel: and, 2dly, on account of the defects in the proofs of proprietary interest. That, although the doctrine inculcated in the case of the Nereide,*fn1 tended to show that the circumstance of the cargo being found on board an armed enemy's vessel was not, in itself, a substantive cause of condemnation, the principle had not been decided by a majority of the court; Mr. Justice Johnson's opinion limiting it to the case of a neutral at peace with all the world.*fn2 This was not the case of Mr. Pinto, but it was the case of M. Foussat. Just before the decision of the Nereide, Sir William Scott had held the contrary doctrine,*fn3 and decreed salvage for the recapture of neutral goods previously taken by one of our cruizers, on board an armed British ship, upon the ground that the American courts might justly have condemned the property. But even supposing this circumstance not to be a substantive cause of condemnation, it inflames the suspicions of hostile interests, arising from the other circumstances of the case, and does not admit of an explanation consistently with the pretended neutral character set up by the claimant. The inconvenience of exposing himself to these suspicions must have been compensated by the protection afforded by an armed force, or that protection would not have been resorted to. The case is, in that respect, distinguished to its disadvantage from the whole class of cases, including the St. Nicholas and others,*fn4 where fraud, and not force was resorted to, in order to evade, instead of directly resisting belligerent rights. The principle of reciprocity, as a doctrine of prize law, has been overruled by the court*fn5 and, therefore, it cannot be contended that the rule of the French prize code, by which the having an enemy's supercargo on board is a cause of condemnation, is to be retaliated upon the claimant. But this fact increases the improbability that a Frenchman, who must have known the law of his own country in this respect, would have exposed his property to the risk of confiscation in the courts of a country whose prize law he could not know, because it was still unsettled. All the other circumstances of the case tend to the conclusion that it was not his property, but that of the British ship owner. Mr. Sergeant, contra, contended, that the case of the Fanny, even if it were not contradicted by that of the Nereide, was not directly in point. Sir W. Scott there goes on the ground of the probability or danger of condemnation in our courts, as affording a reason far giving salvage. Besides, the Fanny was a commissioned, as well as armed vessel; which the Nereide and the Atalanta were not. But it must be confessed that the decision in the Fanny was a very careless, not to say superficial, judgment. The judge agrees that the Portuguese flag was an inadequate protection, and yet holds the neutral liable to condemnation for taking shelter under a belligerent force. With all due respect to the great man by whom it was pronounced, it may be said to be tinctured with some of those peculiarities which mark the conduct of the tribunals of a great maritime country, bent on the assertion of its pretensions by its overwhelming naval power. At all events, it does not form a law for this court, any more than the principle of retaliation which has been already repudiated by the court. The proceedings in the present case have been marked by irregularities subversive of that justice which is due to neutrals, and by a neglect of those forms which are a part of the silent compact by which they agree to submit to the exercise of the harsh and inconvenient prerogative of search. The cause was not heard in the court of first instance upon the ship's papers and the preparatory depositions, before extraneous testimony was let in, by an order for farther proof. The salutary principles of prize practice, which afford a security to neutrals in a trial in the courts of the captor, that would otherwise be grossly oppressive, have been wholly disregarded. It is a rule of justice in admiralty courts, whether of instance or prize, that where the original evidence appears to be clear, the court will not indulge in extraneous suspicions.*fn6 If the employment of an armed enemy's vessel be innocent, no unfavorable inference can legally be drawn from it any more than from the employment of an unarmed belligerent carrier. Both this circumstance and the employment of an English supercargo (if he was employed) would rather show that no fraud was intended, since the annals of the prize court do not afford a single instance of a fraudulent case which was not entirely covered with the neutral garb. The Attorney-General, in reply, insisted, that the fact of the cargo being captured on board an armed belligerent ship, raised a strong presumption, throwing the onus probandi on the claimant with more than usual weight. The only evidence to relieve this presumption, was the oath of the claimant himself, unsupported by that of any other witness, or by any documentary evidence; and that too under an order for farther proof; a mere test affidavit, without which a claimant can in no case receive restitution, but which is no evidence, or next to none, in a case of the least doubt or difficulty. March 4th.

The opinion of the court was delivered by: Mr. Chief Justice Marshall, delivered the opinion of the court.

This vessel was captured on a voyage from Bordeaux to Pensacola by the sloop of War Wasp, and sent into Savanna in Georgia, where she was libelled and condemned as prize of war. The cargo was claimed for Mons. Foussat a French merchant residing at Bordeaux. In the district court the cargo was condemned as enemy's property, avowedly on the principle that this character was imparted to it by the vessel in which it was found. On an appeal to the circuit court, farther proof was directed, and this sentence was reversed, and restitution decreed to the claimant. From this decree the captors appealed to this court.

It has been contended, that this cargo ought to be condemned as enemy's property, because, 1st. It was found on board an armed belligerent.

2d. It is, in truth, the property of British subjects.

On the first question, the case does not essentially differ from that of the Nereide. It is unnecessary to repeat the reasoning on which that case was decided. the opinion then given by the three judges is retained by them. The principle of the law of nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be changed, or so impaired as to leave no object to which it is applicable; but so long as the principle shall be acknowledged, this court must reject constructions which render it totally inoperative.

2d. Respecting the proprietary interest, much doubt is entertained. In addition to the extraordinary fact of employing a belligerent carrier, while a neutral vessel belonging to the alleged owner of the cargo lay in port, there are circumstances in this case calculated to awaken suspicion, which the claimant ought to clear up, so far as may be in his power.

The return cargo of the Atalanta was to be in cotton, and Berkley, Salkeld & Co., the owners of the vessel, were also owners of large cotton plantations, the produce of which might be readily shipped from Pensacola. The papers show that the Atalanta sailed from Liverpool, where her owners reside, with a cargo for Bordeaux, a part of which, about equal in value to the cargo taken in at Bordeaux, belonged to Berkley, Salkeld, & Co., and that her ultimate destination, at the time of sailing, was Pensacola, or the Havanna.

Within a day or two after her arrival at Bordeaux, she was chartered by the claimant for the voyage on which she as captured, and the cargo he now claims was put on board. A Mr. Prichard sailed in the vessel, who was a British subject, and who has been represented in some of the testimony as a supercargo.

There are, undoubtedly, circumstances to diminish the suspicion which must be excited by those that have been mentioned. The proceedings have been very irregular; no examinations in preparatorio have beer taken. The captain, and probably the mate with the alleged supercargo, were carried on board the Wasp, and have perished at sea, and Mr. Foussat, whose character is unexceptionable, has sworn positively to his interest. Yet, this interest can be, and therefore ought to be, proved by other testimony, and it is in the power of Mr. Foussat to explain circumstances, which, as they now appear, cannot be disregarded. The court, therefore, requires farther proof, which Mr. Foussat is allowed to produce, to the following points:

1st. To his proprietary interest in the cargo. To show how and when it was purchased.

2d. To produce his correspondence with Barclay, Salkeld & Co., if any, respecting this voyage.

3d. To explain the circumstances relative to the original destination to Pensacola, when the Atalanta sailed from Liverpool.

4th. To explain the character of Mr. Pritchard, and his situation on board the Atalanta.

5th. To establish the genuineness of the letter of the 28th of August, and say by ...


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