Mr. Justice Johnson delivered
the opinion of the court. Both vessel and cargo, in this case, are claimed in behalf of M,' & J. Krause, Russian- merchants, resident at .Riga, %The documents and evidence exhibited Martin-Krause as the proprietor of the ship, but • the captain swears that he considered her as the property of the house óf M, & J.'Krause,- from their having exercised the ordinary acts of ownership over 'her ; and. in this belief he is supported by the fact that his contract k made with John Krause, by whom he appears to have been put in command of the ship.
. , . Analogy 4ween this case St. Nicholas, •417!’7°** *’P"
In all its prominent features, this case bears a strikA y mg resemblance to the case of the St. Nicholas. A vessel,- documented as Russian, is placed under the ^solute controul of a British house, is dispatched under the orders of that house to the Havanna, where ■she is loaded under the directions of an individual of the name of Muhlenbruck, who assumes the character of agent of the Russian owners ; she is then ostensibly cleared out for Riga, but with express orders ’to call at a British port, and terminate her voyage under the orders of the same house, under the auspices of which .the adventure .had originated and been so far conducted.
Under these circumstances, it was certainly incumbent upon the claimant to show the previous correspondence of the British with the Russian house, and -thé immediate dependence of the agent at the Havanna, upon the Russian house for authority, instructions, and resources. When we come to compare the correspondence of Muhlenbruck with that of Smith, the agent in the St. Nicholas; we find here, also, a striking similitude. In that case, the supposed correspondence with the Russian principal is inclosed under cover [239]*239to. the British ho usé, with a request that they .¡would forward it. In. this case'the letters covering, the invoice and bill of lading, and directed .to M. & J. Krause, is confided to the captain, but with express instructions to forward it to the British house, and await itheir orders.
nEfnUg?romnthB
dence of the claima,,t» and„ existence of evidence b of rest?y*lint*'
The material facts on which the court relies, in making up its judgment on the claim of the cargo, are the following:.
In the first place, there is a general shade of suspicion cast over the whole case, by the fact that all material papers relating to the transaction were mysteriously concealed in a billet of wood. Had there been nothing fraudulent intended, these papers ought to have been delivered along with the documentary evidence. But they were not discovered until betrayed by one of the crew. It is upon the investigation of these papers, principally, that, the circumstances occur which discover the true character of- this voyage.
Secondly. There is no evidence thaí this adventure was ever undertaken under instructions, from M. & J. Krause. But there is evidence - that every , ; . in - thing is set m motion at the touch of Bennet & Co. of London. And although they affect to act in the capacity of agents of the Russian house, even the 1 rules of the common law would constitute them principals, in a case in which they cannot exhibit the authority under which they assume the character' of agents. Again; there is no evidence that' any funds were furnished, by the Russian house for the purchase of this cargo. But there is evidence, and [240]*240we think conclusive evidence, to ‘show that it was purchased on - funds of the British house, remitted through the medium of the cargo of the Robert Bruce,, a ship loaded by Bennet' & Cot, and despatched about'the same time for the Havanna. in tne letter of instructions of the 18th of March, 1813,a the [241]*241captqin is told to proceed to the Havanna and await the arrival of Muhlenbruck, in the Robert Bruce, for ordej^},-arid in ease of any accidents befalling that vessel..'-to apply to the Spanish house of Ychazo & Carricabura,. at. the Havanna, for farther instructions. And in" a letter to the house of Lorent Steinwitz of Charleston, Bennet & Co. inform them, that the Fortuna is despatched to the Havanna to the address of Ychazo - and Carricabura to obtain a freight for the Baltic, and request Lorent & Steinwitz to advise that house, if they could obtain a freight for her to any port in Europe., This correspondence is explained thus: the cargo of the' Robert Bruce would probably be sufficient to load this ship with colonial produce.; if she arrives in. safety, the original adventure can then proceed, but should she be captured or lost, some return freight must then be fc und for the Fortuna. And accordingly we find in the letter to Bennet & Co. of the 24th March,a Mphlenbruck soli[242]*242cits a credit on Jamaica or Cadiz as he expresses if? te to be able .to settle the surplus of the amount al~veady shipped which may be left out,of the proceeds'of the outward bound shipment of the Robert Bruce.”' Now the. only shipment he had then made was by the Fortuna; and this letter gives advice of that [243]*243s&ipment, as also of the arrival of the Robert Brace, and the progress he had made in disposing of her cargo. The passage quoted means, therefore, (although somewhat obscurely expressed,} “It is possible that the outward cargo of the Robert Bruce may not be sufficient to .pay for the shipment already made by the Fortuna, [244]*244and you must, therefore, furnish me with a ciedit to make úp .the deficiency,” Ychazo and Carricabura no doubt advanced for the purchase of the cargo of sugars upon the credit of the cargo of the Robert Bruce, and according y we find that house charging a commission for advancing. On these facts we are satisfied that the cargo was purchased with British funds.
Want of MuMenbraolf was the agent of the ciQimants, and proofs that he o?th^enemy house.
Lastly; there is no evidence that Muhlenhruck was agsnt of M.-& «L Krause, and there is abundant evidence of his being the avowed and confidential agent 0f tha British house. "We see in the midst. of the anxiety to keep up the character of agent to the Russian house, this g'entleman,' without being awarG °f it, does an act which at once shows to whom he holds himself accountable. In his letter to Bennett & Co. of flie &4th of March, he requests them to inform the Russian house, that he has made certain advances on account of the ship; But why request Bennett & Co. to do this,- if he was himself in immediate connection apd correspondence with the Russian house ? The tact is, his correspondence with the Russian house'was fictitious, and his object was to inform Bennett and’ Co. in reality, whilst he feigned to address himself ip M. & J. Kráuse, and thus the letters to the latter house, covering the invoice and bill of lading, although of the same date with that to Bennett &' Co. omits this piece ■of information,'which, in a real correspondence, would be groundwork of a credit to himself, and contains ■nothing but the most general information, just enough [245]
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Mr. Justice Johnson delivered
the opinion of the court. Both vessel and cargo, in this case, are claimed in behalf of M,' & J. Krause, Russian- merchants, resident at .Riga, %The documents and evidence exhibited Martin-Krause as the proprietor of the ship, but • the captain swears that he considered her as the property of the house óf M, & J.'Krause,- from their having exercised the ordinary acts of ownership over 'her ; and. in this belief he is supported by the fact that his contract k made with John Krause, by whom he appears to have been put in command of the ship.
. , . Analogy 4ween this case St. Nicholas, •417!’7°** *’P"
In all its prominent features, this case bears a strikA y mg resemblance to the case of the St. Nicholas. A vessel,- documented as Russian, is placed under the ^solute controul of a British house, is dispatched under the orders of that house to the Havanna, where ■she is loaded under the directions of an individual of the name of Muhlenbruck, who assumes the character of agent of the Russian owners ; she is then ostensibly cleared out for Riga, but with express orders ’to call at a British port, and terminate her voyage under the orders of the same house, under the auspices of which .the adventure .had originated and been so far conducted.
Under these circumstances, it was certainly incumbent upon the claimant to show the previous correspondence of the British with the Russian house, and -thé immediate dependence of the agent at the Havanna, upon the Russian house for authority, instructions, and resources. When we come to compare the correspondence of Muhlenbruck with that of Smith, the agent in the St. Nicholas; we find here, also, a striking similitude. In that case, the supposed correspondence with the Russian principal is inclosed under cover [239]*239to. the British ho usé, with a request that they .¡would forward it. In. this case'the letters covering, the invoice and bill of lading, and directed .to M. & J. Krause, is confided to the captain, but with express instructions to forward it to the British house, and await itheir orders.
nEfnUg?romnthB
dence of the claima,,t» and„ existence of evidence b of rest?y*lint*'
The material facts on which the court relies, in making up its judgment on the claim of the cargo, are the following:.
In the first place, there is a general shade of suspicion cast over the whole case, by the fact that all material papers relating to the transaction were mysteriously concealed in a billet of wood. Had there been nothing fraudulent intended, these papers ought to have been delivered along with the documentary evidence. But they were not discovered until betrayed by one of the crew. It is upon the investigation of these papers, principally, that, the circumstances occur which discover the true character of- this voyage.
Secondly. There is no evidence thaí this adventure was ever undertaken under instructions, from M. & J. Krause. But there is evidence - that every , ; . in - thing is set m motion at the touch of Bennet & Co. of London. And although they affect to act in the capacity of agents of the Russian house, even the 1 rules of the common law would constitute them principals, in a case in which they cannot exhibit the authority under which they assume the character' of agents. Again; there is no evidence that' any funds were furnished, by the Russian house for the purchase of this cargo. But there is evidence, and [240]*240we think conclusive evidence, to ‘show that it was purchased on - funds of the British house, remitted through the medium of the cargo of the Robert Bruce,, a ship loaded by Bennet' & Cot, and despatched about'the same time for the Havanna. in tne letter of instructions of the 18th of March, 1813,a the [241]*241captqin is told to proceed to the Havanna and await the arrival of Muhlenbruck, in the Robert Bruce, for ordej^},-arid in ease of any accidents befalling that vessel..'-to apply to the Spanish house of Ychazo & Carricabura,. at. the Havanna, for farther instructions. And in" a letter to the house of Lorent Steinwitz of Charleston, Bennet & Co. inform them, that the Fortuna is despatched to the Havanna to the address of Ychazo - and Carricabura to obtain a freight for the Baltic, and request Lorent & Steinwitz to advise that house, if they could obtain a freight for her to any port in Europe., This correspondence is explained thus: the cargo of the' Robert Bruce would probably be sufficient to load this ship with colonial produce.; if she arrives in. safety, the original adventure can then proceed, but should she be captured or lost, some return freight must then be fc und for the Fortuna. And accordingly we find in the letter to Bennet & Co. of the 24th March,a Mphlenbruck soli[242]*242cits a credit on Jamaica or Cadiz as he expresses if? te to be able .to settle the surplus of the amount al~veady shipped which may be left out,of the proceeds'of the outward bound shipment of the Robert Bruce.”' Now the. only shipment he had then made was by the Fortuna; and this letter gives advice of that [243]*243s&ipment, as also of the arrival of the Robert Brace, and the progress he had made in disposing of her cargo. The passage quoted means, therefore, (although somewhat obscurely expressed,} “It is possible that the outward cargo of the Robert Bruce may not be sufficient to .pay for the shipment already made by the Fortuna, [244]*244and you must, therefore, furnish me with a ciedit to make úp .the deficiency,” Ychazo and Carricabura no doubt advanced for the purchase of the cargo of sugars upon the credit of the cargo of the Robert Bruce, and according y we find that house charging a commission for advancing. On these facts we are satisfied that the cargo was purchased with British funds.
Want of MuMenbraolf was the agent of the ciQimants, and proofs that he o?th^enemy house.
Lastly; there is no evidence that Muhlenhruck was agsnt of M.-& «L Krause, and there is abundant evidence of his being the avowed and confidential agent 0f tha British house. "We see in the midst. of the anxiety to keep up the character of agent to the Russian house, this g'entleman,' without being awarG °f it, does an act which at once shows to whom he holds himself accountable. In his letter to Bennett & Co. of flie &4th of March, he requests them to inform the Russian house, that he has made certain advances on account of the ship; But why request Bennett & Co. to do this,- if he was himself in immediate connection apd correspondence with the Russian house ? The tact is, his correspondence with the Russian house'was fictitious, and his object was to inform Bennett and’ Co. in reality, whilst he feigned to address himself ip M. & J. Kráuse, and thus the letters to the latter house, covering the invoice and bill of lading, although of the same date with that to Bennett &' Co. omits this piece ■of information,'which, in a real correspondence, would be groundwork of a credit to himself, and contains ■nothing but the most general information, just enough [245]*245in fact to glps» over the transaction, and give it the aspect of reality."a
Neutral ship ¿£ ™r “h(fr^!g subjects tl ship to ooi demnation.
Relaxation cou™'in aííc p^oofhfa'caBe’ of concealment
With regard to the vessel, it would be enough to observe, that. if a neutral ship-owner will lend his name to cover a fraud with regard to the cargo, this circumstance alone will subject him to condemntioh. But'in this case -there are, also, many circumstances to , _ . . , maintain a supicion that the vessel was British property, or at least not owned as claimed. Although this court, from extreme anxiety to avoid subjecting a neutral to condemnation-, has relaxed its rules in allowing time for. further proof in a case where there was concealment-of papers,,yet nothing has been brought forwaid to support the neutral character of the ship. No [246]*246charter-party, no original correspondence, nothing, in fact, ..but those formal papers which never fail to accompany a fictitious,, as well as a real, transaction. On the contrary, we find the captain, without any instructions from his supposed owners, submitting implicitly to the orders of Bennett & Co. in every thing ; and the latter assuming even a control over the contraCt which he exhibits with h;. supposed owner in Riga, and expressing a solicitude about his expenses, which could only have been suggested by a consciousness that the house of B. & Co. would have- to pay those expenses.
Upon the whole,'we are satisfied that it is a case for condemnation both of ship and cargo.
Decree affirmed.
Translation of Exhibit, 287. A. “ On iha following conditions have I given to Captain Henry Behrens, the command of the ship Fortuna, under Russian colouis, lying at presenf in Riga.
1,-Captain Behrens shall' have 25 Alberts dollars monthly wages.
2. The whole cabin freigBt fcas been allowed him.
3, He is (o receive 6 per cent, primage,
4. Travelling expenses for the benefit of the vessel, as, • likewise, victualling expense* for (he use of the ship in port, consistent • with moderation, have been allowed to the captain.
Captain Behren-, on Bis part,'promises to watch the interest of his owner in every re[238]*238spect, and do the best he can for the benefit of the vessel.
■ For the fulfilment Of the-present contract! bind myself by my signature.
Riga, the 12th of August, 1813.
Per Proc. John Krause, (Signed) Schultz.”