Hollingsworth v. Betsey

12 F. Cas. 348, 2 Pet. Adm. 330, 1795 U.S. Dist. LEXIS 7

• Court: District Court, D. Pennsylvania
• Decided: April 7, 1795
• Status: Published

Opinion

PETERS, District Judge.

The brigantine Betsey, the property of the libellants, who are citizens of the United States, was, in pursuance of their orders, let on freight by the captain of the said brigantine, about the seventh of May, 1793, at the island of St. Bartholomews, to P. H. and A. Runnals, subjects of the king of Sweden and burghers of that island. The vessel being at St. Eus-tatius when chartered, a few hogsheads of sugar were purchased there and taken on board, as part of her cargo, agreeably to the charter-party, and the said brig sailed therewith from St. Eustatius to St. Barthol-omews, where she completed her cargo, consisting of sugar, coffee and a few hides, which belonged to the freighters, P. H. and A. Runnals. The brig having thus completed her cargo, set sail from St. Bartholo-mews bound to Hamburg, agreeably to charter-party, on the 28th of the same month of May; on the 15th of the following June the vessel and cargo, when proceeding on her voyage aforesaid, were captured by the French privateer Sans Culottes of Marseilles, and on the 22d of July in the same year, brought into the port of Philadelphia. This privateer was under Spanish colours, and is a xebeek, whose fashion and appearance were peculiarly alarming. The circumstances happening at the time of capture will appear in the exhibits filed in this cause. On the 13th of June, 1794, after a minute investigation and severe scrutiny, in which even the books and private correspondence of the libellants had been repeatedly submitted to the council and other persons on the part of the respondents, the said council abandoned all further controversy respecting the property of the brigantine, and agreed that the cargo was protected from capture by the treaty between the United States and France.— Whereupon and on consideration of the evidence produced, a decree for restitution was passed, but the point of damages was reserved. On the hearing of this point, it was contended by the advocates for the respondents, that the circumstances occurring at the time of capture justified the bringing into port, and amounted to such probable cause as will, agreeably to the general laws of nations and the ordinances and regulations of France particularly, repel any claim to damages for the capture and detention.

I have maturely weighed the evidence on which the arguments of the advocates for the respondents were founded, and taken into consideration the authorities by them produced, yet I am nevertheless of opinion, that although the circumstances appearing to the captors at the time of capture might probably excuse an examination on the spot, yet they did not amount to a justification of their conduct in compelling the vessel to deviate from her lawful voyage in a manner so ruinously injurious to the owners of both vessel and cargo. Whatever may be the opinions of individual nations, having arms in their hands and of course the power to enforce such opinions, it is at least questionable whether neutrals are bound to submit to searches, however prudent it may be that they should, sometimes, yield in this particular. There are very respectable authorities which assert, that “a neutral ship is not obliged to stop to be searched;” ² although there áre others, holding the contrary doctrines³

No one nation has, however, the right to dictate in this or any other particular to the rest, by its own ordinances, what shall be law of nations, the principles whereof must be founded in justice and established by common usage and consent If a belligerent party captures and detains neutral property, he does it at his peril. Should the capture and detention, on investigation turn out to be unwarranted by the general law of nations, or forbid by particular treaty, he is bound by every rule of law and reason to make ample compensation. It appears clear that the capture of the Betsey and cargo was in every view of it unlawful, and being of opinion, that the circumstances relied on for probable cause, do not justify the detention and bringing into port—

I do decree, adjudge and order, that the respondents pay to the libellants the damages sustained by them by the unlawful capture and detention of the said brigantine Betsey and her cargo, with costs. And to the end that the said damages may be truly and justly ascertained, I do hereby order and direct the clerk of this court to associate with him ■three intelligent and disinterested merchants of this district, who, or any two of them with the clerk, shall examine into all circumstances relative to the vessel and cargo and the losses and damages consequent thereon, and ascertain the amount thereof, according to justice and good conscience, and the clerk is hereby directed to make report of the doings herein at the next court day.

Conformable to a decree pronounced by RICHARD PETERS, Esq., judge of the said court, in the above cause, on the eighteenth day of March last past, the clerk reports:

That having associated with him James Yard, Robert Ralston, and-Daniel Smith, of the city of Philadelphia, merchants, the said clerk and his associates have examined into all circumstances relative to the capture of the said brigantine Betsey and her cargo, and the losses and damages consequent thereon, and are of opinion, that according to justice and good conscience, the said libellants Jehu Hollingsworth the younger, and John Shall-eross, owners of the said brigantine, by reason of the capture and detention thereof, have sustained damage to the amount of four thousand two hundred and seventy-seven dollars and forty-nine cents, and that P. H. Run-nails, and A. Runnalls, the owners of the cargo, and charterers of the said brigantine, by reason of the capture and detention aforesaid, have sustained damages to the amount of two thousand four hundred and eighty-five dollars, and twenty-nine cents.

James Yard.

Robert Ralston.

Daniel Smith.

Samuel Caldwell,

Clerk of the District Court.

And now, to wit, this seventh day of April, in the nineteenth year of the independence of the United States, the clerk having agreeably to a former decree, reported—

“That having associated with him James Yard, Robert Ralston, and Daniel Smith, of the city of Philadelphia, merchants, the said clerk and his associates having examined into all circumstances relative to the capture of the said brigantine Betsey and her cargo, and the losses and damages consequent thereon, and are of opinion, that according- to justice and good conscience, the said libellants Jehu Hollingsworth the younger, and John Shallcross, owners of the said brigantine, by reason of the capture and detention thereof, have sustained damage to the amount of four thousand two hundred and seventy-seven dollars and forty-nine cents: and that P. H. Eunnalls, and A. Eunnalls, the owners of the cargo, and charterers of the said brigantine, by reason of the capture and detention aforesaid, have sustained damages to the amount of two thousand four hundred and eighty-five dollars, and twenty-nine cents.”

And the said report being read, and duly considered by the court, it is adjudged, ordered and decreed, that thfe respondent Joseph Moulinary, pay the libellants Jehu Hol-lingsworth the younger, and John Shallcross, the sum of four thousand two hundred and seventy-seven dollars and forty-nine cents, for their damages by them sustained by reason of the capture and detention of the said brigantine Betsey. And that the said respondent also pay to the said libellants, at-tornies in fact to P. H. and A. Eunnalls, the further sum of two thousand four hundred and eighty-five dollars and twenty-nine cents, for their damages by them sustained by reason of the capture and detention aforesaid.-

Ordered&emdash;That this decree be absolute, unless cause is shewn in four days.

2 See the case of Saloucci v. Johnson, Parker, 364, 365, for the opinions of the English common law judges, Willes, Ashurst and Bnller (Lord Mansfield absent) all agreeing on this point. Also, that a neutral firing on a belligerent appearing under false colours is not a breach of neutrality.

3 It seems to be a settled principle now, that neutrals are bound to submit to searches, and the modes of conducting such searches are the only subjects of dispute. Our nation has acknowledged this right by entering into arrangements in several treaties and conventions, as to the manner of effecting it. In the above case, testimony was taken (and had due attention paid to it) to shew that there was ground for apprehension on the part of the American master and crew, that the privateer was a cruizer belonging to one of the Barbary powers. The privateer was a xebec, and the colours under which she first appeared were false and suspicious. The fashion and appearance of the vessel created alarm in the minds of the captain, supercargo and crew, and induced some preparation for flight or concealment and destruction of papers, which however were not executed. Minute investigation was made as to the property which was suspected to belong to Dutch merchants, France and Holland being then at war; and the books and clerks of the owners were submitted for examination. The right of search and subjects connected with it are discussed in 2 Azuni, pt. 2, c. 3, and notes, as well as in other writers. This and some other cases determined here, shew that I have always considered it justifiable to examine into the claims of our own citizens, and to restore property indubitably neutral, when within our jurisdiction. In the cases of Findlay v. The William [Case No. 4,790], and Moxon v. The Fanny [Id. 9,895], I would not take cognizance of captures made by one enemy from another, under my ideas of the impropriety of the examination by judicial authority; afterwards I yielded to legislative injunctions and decisions upon this point. Modern authorities support the principle recognized by the act of congress, giving jurisdiction to the courts in cases of captures within our territorial limits; but no neutral sovereign or state has the right to examine into questions concerning prizes under other circumstances, though brought within its ports or jurisdictional limits, when such questions affect only belligerent nations. “The prerogative which exempts a ship of war or privateer from the jurisdiction of the sovereign into whose port the prize is carried, ought to have effect only in the case where the prize may belong to an enemy, or the subject of an enemy, and not when the sovereign of the port into which it is carried, or some other neutral power, is interested in the prize; or where it belongs wholly to a neutral, which is a different case.” — 2 Azuni, M. L. of Europe.