Haee, D. J. ’
The libel, in this case, al ’ ' ledges that this ship, owned by British subjects, and having; then come from a port or place, in a . . . colony or territory of his Britannic Majesty, (to wit, Falmouth in Jamaica) which, by the ■,. , „ ,. • i i , ordinary laws ot navigation, is closed ag-vessels owned by citizens of the United States, did attempt to enter the port of New-Orleans. contrary to the act of congress, entitled “ an v ,• . 7 concerning navigation.”
It appears that this vessel sailed from London in January, 1819, bound to South America, and to return to any port in England, or for any port she might have a cargo for. She sailed and arrived at' Margarita, having on board a considerable number of men, intended to be employed in the service of the revolutionary government in Venezuela. She remained there some months, and on the 8th of November last, sailed ; it is alledged on the part of the United States, that she sailed for Jamaica, and by the [714] claimant that, her intended port was New-Or-_ , , . . „ . leans ; but that want of provisions compelled the master, captain Coats, nine days after leaving Margarita, to stop a few days off Falmouth, in Jamaica, which port he visited, in his boat ; that the vessel never entered ti e port, but sailed off and on, waiting the return of the master, and that, while at Falmouth, he purchased some provisions and then sailed for New-Orleans.
In support of the libel, the log book is referred to. The entry made on the 9th November is in these words, u Francis and Eliza, captain Coats, from island of Margarita to Jamaica.” The next is “ Francis and Eliza towards Jamaica.” On Tuesday, the 16th of November, the following entry is made, “ capt. Coats dfe-termined to send the boat ashore for provision ; at 10 hove too with head to the westward ; at day light made all possible sail ; at 11, pilot came on board and shewed us the harbour of Falmouth ; bore up, and at noon captain Coats went ashore with the passenger.” On the 18th the next entry is “ captain Coats came on board and made all possible sail : at IS, captain Coats went ashore, and passenger left the ship. On the 20th, captain Coats sent the skiff aboard with four bolts of canvass, and two small casks pork, and boat to return. On the 24th, the [715] boat came aboard with captain and one passen- „ ⅝ . ' ⅜ . , ger. ’ On the Soth, the log book is headed, “ Francis and Eliza, captain Coats, towards New-Orleans”.
In farther support of the libel, is a pass from admiral Biron, dated at Juan Griago, November 8, 1819, granting permission tocapt. Coats, in the English ship Francis and Eliza, to proceed to the colonies friendly to the republic ; requiring those under his jurisdiction not to interrupt him, and requesting others to aid. and respect him.
It appears also from a document in evidence, that while ashore on the ÍBth November, 1819, captain Coats made application to the officers of the customs at Falmouth, to have his register endorsed, which was refused him, unless the vessel came into port ; and the notary certifies, that captain Coats considers it best (considering the great expense and detention |that should arise) to proceed to New-Orleans, and there report láscase to the British consul in order to get his name endorsed on the register. Martin Thomas, a witness, says that he sailed with Coats from Margarita, bound to Falmouth in Jamaica ; heard they were bound to Fal-mouth from the people on board : heard nothing about New-Orleans, till they came heré : [716] lay about four miles from Falmouth, but did not anchor. This witness has had a quarrel with captain Coats.
Captain Loomis, of the revenue cutter, in passing down the river, hailed the Francis aad Eliza, and asked where she was from ; the answer was, Jamaica ; asked captain Coats, what he was doing off Jamaica. He said he went in to get his name endorsed on the register, and to get a freight to England, but the crops not coming in, he did not get one ; he then determined to make for New-Orleans for freight. Captain Loomis told him, he would be under the necessity of seizing the vessel under the navigation law ; the captain then said he went in for provisions. Falmouth is a port closed to American commerce. On his cross examination, he says he does not know that it was the captain who answered his hail, though, he thinks it was, as it is a matter of course for the captain to answer, and it was not afterwards contradicted. He asked captain Coats if he would not have taken a freight at Jamaica, who said he would have done the best for his owners. Captain Loomis further says, that in nautical language touching at a place is, standing in close to the land, and sending a boat ashore, and a vessel is said to be where her papers are ; [717] and when her papers are in the custom house, 1 ' _ she is considered as in port.
Lieutenant Taylor says (he was an officer on board of the revenue cutter) captain Loomis . hailed the Francis & Eliza, she answered from Jamaica. Witness understood from the captain that he had put in at Falmouth for a freight; he heard nothing of distress, but understood from the captain, that not being able to get a freight at, Jamaica he had come here for it. Mr. Chew, the collector of this port, vs as on board the revenue cutter on the 6th of December last when the Francis & Eliza was hailed by captain Loomis and answered from Jamaica and repeated it: heard no other answer.
On the part of the claimants, Peter Heinds, first mate of the ship, was examined and says they first arrived in Margarita with about 170 or 180 passengers; continued at Margarita and along that coast till November, when they sailed for New-Orleans ; that provisions were very scarce there, and could not procure enough for-a voyage to New-Orleans; got a barrel of beef off St. Domingo from an American vessel; had a crew of 25 ; the beef went little way to support the wants of the crew, they were without bread; nothing aboard fit to eat but the barrel of beef$ [718] between St. Domingo and the east end of Jamaica, fell in with a brig solicited supplies, but could not obtain any : proceeded on the voyage for New-Orleans, arrived off Falmouth which was in the course of the voyage ; the captain went ashore to get provisions procured two barrels of pork, one of flour and some yams, and returned next day; went ashore again for more provisions ; remained three or four days ; he brought fowls, pigs, &c. and a small quantity of spirits, four or five gallons; and sailed immediately for New-Orleans. The island of Jamaica was the first land they could make with convenience and safety to get provisions ; they could get nothing at Margarita, and lived on fishing, &c. about three weeks; he says there was no communication between Falmouth and the ship; did not cast anchor, but stood off and on. The provisions procured at Falmouth were barely sufficient to reach New-Orleans. When pilot came on board had scarcely any. The first captain from London, was Stone, who died on the passage; he was succeeded by the first mate*, who died at Margarita ; he does not know the ultimate object of the voyage; he signed articles for South America; did not go to Jamaica for any other purpose but to procure provisions to his knowledge ; they did not go [719] into Falmouth, because they were not bound there ; that they could not go in if they wished, being to leeward and having no pilot.
Mr. Hanson says he wrote the 'los under . the direction of the chief mate, the entries were made every morning; it would have been dangerous to enter Falmouth ; it could not have been done in the then state of the weather; the accounts (see evidence) show the amount of provisions gotten at Falmouth: were greatly distressed for provisions at Margarita, they eat ship's bread at Jamaica: sometimes pork and beet, which were difficult to be procured : could not get provisions at the island.
George Glover says, the agent gave him a passage to New-Orleans, where he intended to come ; he is an Englishman, and did not intend to go to Jamaica ; his intention was to go from JSTew-Orleans to London ; he came in this vessel from London, and if he could not have got another vessel, he would have worked his passage back to London.
John Drixon was a seaman on board. On the 8th November last, sailed for this port; had nothing but salt herrings to eat at Margarita : Took two passengers at Jamaica, and landed » doctor of some sort. When they arrived off Falmouth, were in great distress for provisions, [720] cbuld not with safety have made New-Orleans with their stock ; they made St. Domingo after leaving Margarita.
John Kein says they continued a lone time . at Margarita ; had but little provisions the latter part of the time ; they were not on allowance at all on the voyage : made St. Domingo : got a barrel of beef off St. Domingo or Cuba. He believes the captain went ashore for provisions, and they were as hear in, as they could get when the boat went ashore: they had always something to eat, but the provisions were had.
Charles Jones Salmond was in Falmouth when the ship hove in sight; pilot boat returned and reported that she was bound to New-Orleans. Captain Coats came ashore and went to a tavern kept by a relation, a Mr. Preston. He heard from the land waiter and searchers of the customs, that she was from Margarita, was an armed vessel and bound to New-Orleans.
The same day, the captain purchased some provisions, which he saw taken to the wharf; captain went aboard with Preston, and returned to Falmouth next day ; that the captain and witness attempted to go aboard, but could not. Next morning about 10, he descried the vessel from the upper part of a house, and supposed [721] I er to be off Montego bay, about twenty -five miles ; they got a boat and boarded about S, of the same day, and immediately made sail for New-Orleans. The ship never entered Fal-mouth, nor was nearer, than about four or five miles. He was on the quarter deck of the ship when hailed by captain Loomis; the pilot answered the hail that she was from Margarita and Jamaica; captain Coats was below. The revenue cutter sent her boat aboard with the lieutenant, who asked witness where she was frota; witness answered from Margarita, but the boat went ashore at Jamaica. The only part of the conversation he heard was, captain Loomis asked Coats, if he would not have taken freight at Jamaica. The captain laughed and replied « Yes.”
■Ae-charles Emlin, embarked at Margarita to work his passage to New-Orleans, as he was told*; did not .hear that she was destined for any other port; that they were short of provisions ; he heard captain Coats say on the voyage, that he Would put in at any port to get provisions, there, being no provisions to be got, at„Marpa: Thu, but bad flour.
Capita Thomas Coats, says the ship' in which he came from England, was sold ; tbaf the owners of that vessel, were interested in [722] the house of Hanning & Richardson, to whom the Francis & Eliza belonged; that they were both under the control of Gold, the agent, Who desired witness to take command of the Francis §* Eliza, which he did on the 1st October, at Margarita; that the agent gave him orders to proceed to New-Orleans. The agent died and she was obliged to remain to arrange his affairs : he did not sail from Margarita, till 8th November. Prior to that, if he had been loaded with money, he could not have got provisions froni the shore. Every morning the boat went á fishing; and in fine weather, went ashore with muskets to procure provisions. Left Margarita with 15 pieces of beef; gave the people part of his own stores. Got one cask beef from an American vessel, and gave an order on R, D. Shepherd, of New-Orleans. When off Jamaica, had not more than would last three days; hove too off Falmouth, refused a pilot, saying he only wanted provisions : went ashore an.fj returned with a relation to see the ship ; was not able to make arrangements for ship’s provisions on account of the smallness of the bill on London ; returned to Falmouth: ship was blown off and did not see her for tvy® days : when he saw her, she vyas to the leeward of Montego bay, where he joined lier* and came [723] here. He was ordered by Gold to take freight at New-Orleans for England or the continent. At Margarita, he obtained a letter for II. D. Shepherd & co. which he delivered here. When hailed by the cutter, the pilot answered froto Margarita and Jamaica. Does not know the original destination of the ship ; his object in coming here was provisions and freight.
Did not enquire for freight at Jamaica; if he had taken freight, he would have violated hil orders ; if freight had been offered thinks he would have done the best for his owners; he had no written instructions from Gold, but was verbally directed to proceed to J\Tew- Orleans. (see evidence) He took a pássenger from Margarita and landed him at*Falmouth ; the passage was intended for New-Orleans. He took a nephew at Falmouth, at the request of his cousin, and another young man who was out of employ. He says that by the navigation laws of Great Britain, the captain is obliged to have his register endorsed on change of master at the first port the ship arrives ; it can’t be done at a foreign port; the certificate exhibited contains all the declaration he made at Falmouth.
Before we proceed to the examination of the merits of this case,*it is proper to observe that [724] -the .law upon which the libel is founded is a retaliatory law. It is intended to produce a great political effect ; one of much importance to the trade and navigation of the United States. It is calculated so to operate upon Great Britain, as to induce her to relax from her strict and rigid exclusion of American commerce and navigation from her ports on this continent, and in the West Indies. In the construing of this law, Great Britain cannot take it amiss, if we apply in this case her own principles and rules of decision on similar subjects. In the case of the Beaver, (B8th April, 181S, Dodson 155) Sir W. Scott observes, “ one cannot help feeling that in cases of this kind, innocent parties may be exposed to gfeat hazard and inconvenience ; at the same time it must be recollected that, the navigation laws are of great importance, and very inflexible in their nature. The national benefit must take precedence of the profit of individuals. The law presumes too, that the party damnified has a remedy against him whose fault has caused the loss, and although it may sometimes happen that the person* from whom the remedy is to be sought, is not in point of solvency able to make satisfaction, still that circumstance can make no difference in thelegal principle* which remains;linsbakeo.5* [725] Qn a subsequent dav Sir- William observes, ¾ ’ . t . ’ (t Aere are circumstances ⅛ this case, that would induce the court to regard it in the most favorable light, and to stretch as far as possible to give relief to the owners of this cargo; the parties have, I think, made cut a case of perfect innocence of intention. Under these circumstances, it is impossible not to feel a desire to relieve from the penalties affixed by law upon illegal importation ; but at the same time, no door must be left open for the violation of the high interests which the navigation act wás intended to protect.” He further observes, “ it was considered I presume, that the object of the statute could not otherwise be attained than by imposing these penalties. The sacred rights of British navigation could not be upheld if these penalties could be avoided under the plea of ignorance. 1 am therefore, clearly of opinion, if the strongest possible case of innocence were made out, it could not avail to protect the parties from the penalties imposed by this statute.” We here plainly discover that, the policy of Great Britain is, to secure to herself the monopoly of trade and navigation of her colonies. The policy of the United States in passing this law, is no less obvious ; it is to cut off and prevent all communication between [726] the colonies of Great Britain and the United States, until she shall consent to a mutual intercourse. It was not merely to prohibit the in-Iroduction of her produce from the islands and her other colonies, that this measure was adopted, but to affect her navigation and Hade. The law makes no difference whether the vessel be loaded or not, “ all British vessels coming or arriving from any port op place in a colony or territory of Great Britain that is, or shall be by the ordinary laws of navigation, closed against vessels of the United States, such vessel shall be forfeited.”
This being the evident intention of the law, let us examine the evidence that has_ been given.
That the Francis & Eliza sailed from Margarita for Jamaica, I think, is pretty clearly shewn.
The first entry in the log book after leaving Margarita, is “ Francis Sf Eliza, captain Coats, from Margarita to Jamaica the next, “ from Margarita, towards Jamaica.” Now, it appears from the testimony of William Hanson, who kept the log book, that it was kept under the direction of the chief mate ; indeed, this is always the case. This entry then, could not have been made without the direction of the chief [727] mate, and he must have received his directions from captain Coats. Notwithstanding Ais, Mr. Heinds, the chief mate, swears that they ^sailed from Margarita to New-Orleans : so much for Mr. Heinds. The next circumstance which goes to prove that the intention in the first place, was to try some of the West India ports, is the pass received from admiral Brion. It is an order and request of Brion, to all the revolutionary cruisers, to respect the Francis & Eliza, going to the “ colonies friendly to the republic.” Now, if the real intention of captain Coats was, to come to New-Orleans immediately, the pass would not have been to the friendly colonies, but to the United States alone.
Martin Thomas, who was a seaman on board, says he sailed with captain Coats from Margarita ; were bound to Falmouth in Jamaica. He heard they were bound to Falmouth, from the people on board. He says on his cross examination, that he never beard the captain say, they were bound for Falmouth. It is to be obv served, that a quarrel has taken place between the captain stud this man, and perhaps bis single unsupported testimony, would not establish the fact of idte&tiou ; but taken in connexion [728] with other circumstances, it 'may have some . , ,
The next circumstance to shew the deslination of the vessel for Falmouth is, the directness of the course for that port. The log book on the 9th November, first announces the intention to proceed for Jamaica. Their course is X. E. E. E. N E. ígc. ; on the 12th, St. Domingo was in sight; on the 15th, east end of Jamaica, S. W. by W. distance 6 leagues ; people employed unbending small bovver bable. On Tuesday 16th, took in all small sails, captain Coats determined to send the boat ashore for provisions. At 2, hove to, with her head to the north. At day light, made all possible sail. At It, pilot came aboard and showed us the harbor of Falmouth; bore üp, and at noon captain Coats went ashore with the passenger. On the 17th, captain was on shore. At 7 on the 18th, captain came aboard, arid made all sail. At 11, captain went ashore, and the passenger left the «ship. On 20th, captain Coats came on board with 4 bolts of canvass, and two smalt casks of pork ; boat to return. On 2 lth> captain Coats came o;ri board with a nasSéJÉ&t¿. St was then, that Captain* Coats dét$irií^p$$0 proceed to New-Orleánsj for on the da^ ⅜⅛, the log [729] book begins, Francis & Eliza, captain Coats, towards New-Orleans.
Another circumstance to show that it was the object of captain Coats, to proceed from Margarita to Jamaica, is the conversation between him and captain Loomis and lieutenant Taylor.
Captain Loomis says when he hailed, the answer was from Jamaica : when on board he asked the captain what he was doing ofl' Jamaica; he said he went in to hav^e his register endorsed asnd for a freight. Crops not being in, he determined to proceed to New-Orleans. After he was informed that the vessel must be seized he endeavoured to explain. He thinks the captain answered the hail; there seems to be some doubt as to this fact. Mr. Salmon says he is sure the pilot answered, and that the answer was Margarita and Jamaica. Mr. Salmon statés also, that when captain Loomis asked captain Coats if he would not have taken freight from Jamaica, he answered laughing “ Yes.”
Lieutenant Taylor says the answer to the hail was, “ from Jamaicawitness understood the master of the Francis & Eliza that he had püt into Falmouth for a freight. The captain said nothing of distress; understood from the [730] captain that not finding a freight at Jamaica, lie . came here.
The collector says he was on board the revenue cutter and heard the answer to the hail, it was “ from Jamaica,” and was repeated; he heard no other. John Keen says they were as close in shore as they could get when the boat went ashore. That distress did not compel captain Coats to proceed to Falmouth can, I think, be easily shown : from the testimony and circumstances that I have detailed, it appears that he had views and motives to visit Falmouth: there is another circumstance which is a link in the chain: he had relatives in Falmouth, be lodged at his cousin’s, and brought from Fal-mouth a nephew, with an intention to carry him to England.
1 find no entry in the log book as to want of provisions on the voyage to Falmouth : it is only observed on the ITth of November, captain Coats saw an American schooner, went on board and purchased one cask of beef. To establish the fact of distress Mr. Heinds is examined ; he says provisions were scarce and could not get enough to proceed to New-Orleans : says they were without bread; had Bothing aboard fit to eat; that between east end of Jamaica and St. Domingo, fell in with a brig [731] and solicited supplies, which were refused-No mention of the latter circumstance is in the log book.
It is stated in the log book of Monday, 15th of November, “ at noon boarded the brig Mary áf Jane from Jamaica hound to London, several more vessels in sightnow it is to be recollected that this happened the day after they procured a cask of beef from the American schooner: no mention is made of the object of going on board, or that it was for provision \ but the ingenious Mr. Heinds has positively sworn that they boarded for provisions, and that they were refused. If provisions had been their object, why did they not try some of the other vessels which were in sight ? Some of their captains might not have been so uncharitable as the captain of the Mary & Jane. The true object of the visit was to make inquiry as to Jamaica, the east eftd of which was only six leagues off at day light.
John Keen says, in contradiction of Mr. Heinds’ statement, that although they had very little provision, during the latter part of the time at Margarita, yet they were not at all al-lowanced on the voyage.
Mr. Heinds is again contradicted by one of the seamen, Win. B. Hanson. Heinds says [732] they had no bread on board, and nothing fit to-v eat, but the cask of beef they got from the American schooner. Keen says they eat ship’s bread at Jamaica, sometimes salt pork and beef; he says they could not get provisions at the island.
The witnesses do not agree: one says they had nothing but salt herrings. Charles Eiplin says there were no other provisions at Margarita than bad flour. Heinds says they had no bread : Hanson says they eat ship’s bread ; he too says that about a week before they left Margarita they were on half allowance. No mention is made of this in the log, or by the other witnesses. Now in opposition to this, it appears that captain Coats, with a large crew, takes on board from mere motives of benevolence a Doctor Blair, to come to New Orleans ; but arriving at Jamaica, the doctor was put ashore, got employment there, and tjvo more passengers were brought for New-Orleans.
But, if the necessity was so great, why did he not enter any of the friendly islands, for which he had a permission from admiral Brion ? Many of them were much nearer Margarita than Jamaica, which was the most distant in his rout to New-Orleans except Cuba; St. Domingo was in sight, three days after leaving [733] Margarita, two days* before they met the American ship. No — it was not* distress that drove him there. Was it to have his register endorsed ; to endeavour to procure freight; at • • T the same time to visit his connexions ? — I need not say that this plea of distress by mariners is always examined with a most scrutinizing eye; no instructions in writing are produced. The distress which will excuse is well defined by Sir Wm. Scott in the case of the Eleanor in Edward’s. “ It must be urgent distress; it must be something of grave necessity ; when the party justifies the act upon plea of distress ; it roust not be a distress created by himself, by putting on board an insufficient quantity of water or provisions for such a voyage ; for there the distress is only part of the mechanism of the fraud, and cannot be set up in excuse for it. The same doctrine is held by the supreme court of the United States in the case of the JSfew-Fork, 8 Wheaton.
Distress being out of the question in the present case, let us enquire whether, or not this voyage being intended by captain Coats from Margarita to Jamaica; bis going in as close as he could get; his entering into the harbour with his boat ; bis landing a passenger there; his remaining there six days; his application ta [734] have the register endorsed there, and his actual- , , . . ■ , , • ly bringing two passengers from there to this place, do not bring this vessel within the meaning of the law, which declares that any vessel owned by British subjects coming or arriving from any port or place in a colony of his Britannic Majesty closed against the United States, shall be subject to forfeiture. The captain must have considered the voyages as two distinct voyages. The log book stating the first from Margarita to Jamaica, and after leaving there for New-Orleans. Jamaica then was the point of departure ; so he answered when hailed. I have already stated Jhat the policy of this law is, do induce Great Britain to allow the United States to trade with her colonies : to effect this we say, your colonies shall have no communication with us, until you change your system : you shall not import any produce to us, you shall bring no passengers to us in your ships.
In this case, it appears that captain Coats' brought two passengers from Jamaica. Suppose these passengers were asked, from whence came you, or from where did you arrive? Their answer would be, from Jamaica. In what ship did you come? In the Francis & Eliza; but she did not come from Jamaica. How so ! you came in her from Jamaica, and she has not [735] come from Jamaica? No ! she was laving; off, J ,P and we went aboard in the boat. Shall tliis be an excuse to evade our navigation laws ? Suppose they had brought from thence a cargo of .... ° sugar, which had been put aboard from lighters and small vessels three leagues from the shore, would this have excused her? Does not the navigation of a country derive sometimes, as much advantage from the carrying of a passenger, as from carrying a cargo ? Suppose captain Coats had heard that there were 200 more patriots at Jamaica anxious to join their compatriots at New-Orleans, and he had brought them to this place, together with his nephew Charles Alexander, 8f Jones Salmond, who were both landed here, would this be no violation of our navigation law ? If th® British bad permitted American vessels to visit their colonial ports, our navigation might have shared perhaps the honour and profit too of conveying ' half of this patriotic band.
Upon the whole it is ordered, adjudged and decreed that said vessel, her tackle, furniture, &c. be forfeited tb the United States.