The Herald & Cargo , 11 F. Cas. 1194 ( 1862 )

CADWALADER, J.

The case of this vessel and that of her cargo are somewhat complicated with each other. As to the vessel — of which fifty-nine sixty-fourths, are of alleged British ownership — the principal questions are:

1. Should the case be ruled by the law of war?

2. Was Beaufort harbor effectively, blockaded?

3. Was there a breach of blockade?

4. Did the notification of the intended blockade of the ports of North Carolina render a vessel sailing afterwards, as this vessel did, for a port of that State from a port of the United, States, liable to capture and condemnation, independently of any question of actual blockade of the port of destination?

5. Independently of any question of blockade, ought she to be condemned either for the sole reason that her clearance at Boston, when she was bound for Beaufort, was falsified so as to represent a fictitious destination for a friendly foreign port, or on account of this and other facts considered in combination with one another, and also in connection with negative circumstances of the case?

I think that the law of maritime war should rule the case.

Beaufort harbor was not blockaded when this vessel entered it, on the 10th of June, 1861. Whether it was effectively blockaded on the 14th of July, 1861, when she left it, is an unimportant inquiry; because, if there was then a blockade, there was, according to the rules prescribed in the President’s previous proclamations, afterwards confirmed by Congress, no breach of blockade.

So far as the vessel is concerned, the voyage was, under the charter party, from Boston by way of Beaufort, to Liverpool; SO' that the primary destination to Beaufort, not less than the ulterior destination to Liverpool, must be considered. There had been a complete notification of the intended blockade; and the parties had actual knowledge of it before she left Boston. Whether, under the fourth question, the rule of decision should be the same as if the port of departure had been within a foreign jurisdiction, involves a point of great importance, which it is not necessary to decide, because the destination was falsified.

The master’s conduct is, in some respects, inexplicable, if the whole truth as to interests in the profits of the voyage has, at this time, even after the latitude of proof which has been allowed, been fairly disclosed. But if these obscurities are disregarded, the case of the vessel may be decided on either of two simple grounds, upon either of which further proof should, from the first, have been disallowed. She should be condemned, both because her destination was falsified at the port of departure, and because the master, in the preparatory examination, made false statements for the purpose of deception as to the ownership of the cargo.

The indulgence which, in matters of practice, has, in the earlier stages of the present hostilities, been extended in all cases of maritime capture, has, in this case perhaps, been extended rather too far in disregarding the defects in the test oath of the alleged owners of this vessel. The entry of the decree condemning her will be postponed for a few days, if they desire to file a suppletory test oath to go up in case of an appeal.

As to the cargo, the transactions in which Messrs. Williams and Parmelee were concerned require more satisfactory explanations than have been offered or sustained. The claim of Mr. Williams for the tar and resin and a portion of the spirits of turpentine cannot' be allowed. But, in rejecting it, I ought not, at once, to condemn the subjects of it. The bills of lading for this part of the cargo describe the shipper as agent of the Liverpool consignees. This indicates an ownership in parties who, according to the rule of proceeding, are allowed a year to prosecute their claim. Their ownership was moreover affirmed by the master in the preparatory examination. However this may have been contradicted by his own subsequent affidavit, and by the further proof which has been adduced on behalf of Mr. Williams, the contradiction does not affect these absent parties, or shorten the time which is allowed to parties not incapable of claiming.

The shipments of tobacco are, according to the respective bills of lading, for the account of other parties in England, to whom the like delay should be extended. The particular distinctions in the facts are attended with no such difference as excludes the application of the rule of practice. The claim interposed by the captain on behalf of other parties who are probably the true owners of the tobacco is rejected. They are parties incapable of any standing in this court as claimants. But its rejection, as in the other case, does not affect parties who are, as yet, unrepresented, however improbable it may seem that they will ever appear as claimants.

The several shipments of spirits of turpentine, which are not included in the claim of Mr. Williams, have been claimed by the master, on behalf of the respective owners. They are parties who can have no standing in court as claimants. These claims are rejected and the subjects of them condemned. But, as the vessel is of alleged foreign ownership and the cargo has not been unladen, the decree of condemnation will not be entered as to any part of it, until the formal condemnation of the vessel.

On all the questions of the case I have prepared a fuller opinion, which may, perhaps, be filed hereafter.

SENTENCE.

I, John Cadwalader, Judge of the District Court of the United States in and for the Eastern District of Pennsylvania, duly authorized under the Constitution and laws of the United States to hear and determine in the said district all causes and complaints as to ships or vessels and goods, etc., seized and taken as prize, having heard and considered the merits and circumstances of a certain cause or proceeding respecting the capture or seizure of a certain brig called the Herald, whereof William Folker was master, her tackle, apparel and furniture, and also against the goods, wares and merchandise laden on board the same captured as prize by the steamer St. Lawrence of the Navy of the United States on the high seas on the 16th day of July, 1861, and brought into the port of Philadelphia in the said district, which cause or proceeding was lately and still is depending before me; And the said cause having been heard upon the libel, and several claims, and upon the preparatory and further proofs, and having been agreed to by the Attorney of the United States, and by the respective advocates and proctors for the several claimants, and it appearing that at and before the time of the said capture civil war existed between the United States and certain enemies of the United States confederated for hostile purposes against them, and that the said vessel and the following portions of her cargo, that is to say 49 casks of spirits of turpentine marked “C,” 101 casks of spirits of turpentine marked C, 200 casks of spirits of- turpentine marked P, 7 casks of spirits of turpentine marked M, 10 casks of spirits of turpentine marked J, 3 casks of spirits of turpentine marked “A,” 7 casks of spirits of turpentine marked E, K, H, 27 casks of spirits of turpentine marked J. M. W., and 38 casks of spirits of turpentine marked P, 50 casks of spirits of turpentine marked “T,” 27 casks of spirits of turpentine marked “R,” 20 casks of spirits of turpentine marked D, and 20 casks of spirits of turpentine marked “J” t, 86 casks of spirits of turpentine marked H, and 18 casks of spirits of turpentine marked H; in all 655 barrels or casks of spirits of turpentine were then the property of persons respectively within the legal description of enemies of the United States in the said civil war, and as such or otherwise confiscable; I, the said Judge, on the 18th day of March, in the year 1862, rejected the claims of the several parties respectively praying restitution of the said vessel, and of the aforesaid 655 casks of spirits of turpentine, and pronounced the said brig and 655 barrels of spirits of turpentine to have belonged at the time of the capture and seizure aforesaid to enemies of the United States in the said civil war, and to be as such or otherwise subject and liable to confiscation and condemned the same as good and lawful prize, and on application of the Attorney of the United States ordered that the said brig, her tackle, apparel and furniture, and the said 655 barrels of spirits of turpentine, be publicly sold by the marshal according to the course and practice of the court, and that the proceeds of sale be brought into the registry of the court to abide its order and direction, and as to the residue of said cargo consisting of other spirits of turpentine, hereinafter mentioned, and resin, tar and tobacco, the several claims heretofore filed, were on the same day, upon consideration, rejected. But, forasmuch as the ownership of the said tobacco, tar and resin, and last mentioned spirits of turpentine, did not as yet certainly appear, the adjudication of the question of prize or no prize, was for the present postponed as to the same. Forasmuch however, as the said, remaining spirits of turpentine as to which adjudication is postponed as aforesaid, the same being in casks of the marks and numbers following, that is to say, P 40 barrels, “B” 50 barrels, “W” 29 barrels, and “R” 15 barrels, “D” 50 barrels, “S” 60 barrels, “J” 38 barrels, “L” 20 barrels, and N 6 half barrels (according to the bills of lading"), cannot remain longer on board of the said vessel, and from evaporation, which will increase as the hotter season approaches, will undergo loss and deterioration if it should remain longer unsold, therefore it was by the said judge at the same time ordered that the said remaining spirits of turpentine be sold as perishable, and that the marshal publicly sell the same according to the course and practice of the court and bring the proceeds into the registry of the court to abide its order and direction.