Summary
On the 20th of August 1804, Jared Shattuck exhibited his libel in the district court of the United States for the district of Pennsylvania, in the following form. (a)
*To the Honorable Richard Peters, Esq., judge of the district r*, court of the United States, in and for the district of Pennsylvania. *- The libel of Jared Shattuck, merchant, most respectfully showeth ;
That your libellant, being a subject of his majesty the King of Denmark, some time in or about the beginning of the month of May, in the year of our Lord, 1800, at St. Thomas, one of his said majesty’s West India islands, loaded a certain schooner or vessel called the Mercator, being an unarmed merchantman, fitted out at St. Thomas aforesaid, for trade only, and being then and there bond fide the property of your libellant, with a cargo of merchandise, consisting of provisions, wines and dry goods, for the sole and bond fide account of your libellant, said cargo amounting to $13,920, or thereabouts, on a voyage to Jacmel and Port Republican, in the island of St. Domingo, which he consigned to Toussaint Lucas, also a Danish subject, then and there master of the said schooner Mercator, who was instructed by your libellant, to dispose of the said cargo at Jacmel or Port Republican aforesaid, to the best advantage, for account of your libellant, invest the proceeds in coffee of good quality, and return therewith to the said island of St. Thomas.
And your libellant further saith, that on or about the 6th day of the said month of May, the said Toussaint Lucas sailed in the said schooner from the said island of St. Thomas, upon the said voyage, for Jacmel and Port Republican, having on board the said cargo, and also a private adventure belonging to the said Toussaint Lucas, together with all such necessary papers and documents, for ascertaining the property and neutrality of the said vessel and her cargo, as are usually carried by vessels belonging to Danish subjects ; and proceeded on her said voyage, until on or about the 14th day of the said month of May, when, in endeavoring to enter the said port of Jacmel, the said schooner Mercator was met with by a certain schooner, called the Experiment, a public armed vessel belonging to the government of the United States of America, and commanded by William Maley, a lieutenant in the navy of the said United States, who unlawfully, and in violation of the law *4601 nations, took possession of the said schooner Mercator, and put *on board of her a prize-master, and four seamen, who carried the said schooner Mercator, and her cargo, to places unknown to your libellant. And so it is, may it please your Honor, that neither the said William Maley, nor any person or persons acting under him, have brought the said schooner Mercator, or her cargo, to legal adjudication in any court of the United States, having admiralty jurisdiction.
To the end, therefore, that complete justice may be done to your libellant in the premises, may it please your Honor to direct a monition to issue out of this honorable court, directed to said William Maley, Esq., commanding him forthwith to proceed in due form in this honorable court, against the said schooner Mercator and her cargo, in order to obtain a legal adjudication of the same, in due course of admiralty proceedings, or in default thereof, to appear before your Honor, at such time and place as to your Honor shall seem fit, to answer your libellant in the premises, and show cause why, by the said honorable court’s final sentence and decree, he shall not be adjudged to make restitution in value, and pay to your libellant the whole amount of his loss aforesaid, with full damages and costs, and that such further justice may be done to your libellant in the premises, as to this honorable court shall ever seem meet, and your libellant shall ever pray &c.
Petee S. Du Ponceau, for the libellant.
To this libel, Maley appeared, (a) and filed the protest following :
To the Honorable Richard Peters, Esq., judge of the district court of the United States, in and for the district of Pennsylvania. The protest of William Maley, Esq., late commander of the schooner Experiment, a public armed vessel of the United States of America, appearing here in court, to ‘•'4611 avo^ a^> an<l all manner of contempt, contumacy and *default, under J this his protest, against the libel filed by Jared Shattuck, merchant.
This protestant, saving and reserving to himself all, and all manner of exception to the manifest uncertainties, imperfections and insufficiencies in. the said libel contained, and protesting that he ought not, in any wise, to be required to appear thereto, or to proceed against the schooner Mercator and her cargo, as is therein prayed, nevertheless, for the reasons aforesaid, and as cause why the said libel should be dismissed, without further appearance or answer, avers, propounds and says :
That true it is, that the said protestant, while commanding the said schooner Experiment, a public armed vessel of the United States of America, under a lawful commission and authority from the government of the said United States of America, did, on or about the 15th day of May 1800, meet on the high seas, and take possession of the said schooner called the Mercator, in the said libel mentioned, and put on board an officer, and four seamen. But this protestant denies, that by so doing, he acted unlawfully and in violation of the law of nations ; for he avers, propounds and says, that since the passing of the act of the said United States of America, entitled “ an act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof,” and before the said 15th day of May 1800, that is to say, on-day of-, in the year 1799, the said schooner, called the Mercator, being an American registered vessel, owned, hired and employed by a person or persons resident within the said United States, or by citizens thereof, resident elsewhere, sailed and departed from the port of Baltimore, within the said United States, and at the time of her being met and taken possession of by this protestant as aforesaid, and before her return within the said United States, was proceeding directly, or from some intermediate port or place, to Jacmel, a port or place within the island of St. Domingo, within the territory or dependencies of the French republic.
And this protestant further avers, propounds and says, that at the time of his meeting and taking possession of the said schooner Mercator as aforesaid, she was steering a direct course for the said port of Jacmel, and not for Port-au-Prince, whereas, the letter of instructions *from the said [*462 Jared Shattuck, the libellant, and all the other papers exhibited to this protestant, by Toussaint Lucas, the master of the said schooner Mercator, or found on board thereof, falsely, fraudulently and colorably represented and declared among other things, that the said schooner was bound on a voyage from the island of St. Thomas to Port-au-Prince, a place then in the power and possession of the British troops, and not within the territory or dependencies of the French republic. And this protestant further avers, propounds and says, that at the time of his meeting and taking possession of the said schooner Mercator as aforesaid, the master thereof appeared to be a Frenchman (although this protestant has since heard, but does not admit, that he is an Italian), and the crew consisted chiefly of Portuguese and Italians, nor was there then, nor at any time before or since, exhibited to this protestant, any burgher’s brief or brief, or other evidence whatsoever, that the said master or crew, or any part thereof, had become burghers of the said island of St. Thomas, or were otherwise naturalized subjects of the King of Denmark, without which this protestant avers, that the said master and crew could not lawfully command and navigate a Danish vessel, according to the laws and usages of Denmark.
And this protestant further avers, propounds and says, that the said Jared Shattuck, the libellant, alleging himself to be the owner of the said schooner Mercator and her cargo, and to be a burgher of the island of St. Thomas (neither of which allegations is admitted by this protestant), was born in the state of Connecticut, one of the United States aforesaid, nor did it satisfactorily appear to this protestant (considering the many other proofs and causes of suspicion to the contrary), at the time of his meeting and taking possession of the said schooner Mercator as aforesaid, nor has it so appeared at any time since, that the said Jared Shattuek, the libellant, had, by any lawful act of expatriation, or otherwise, at any time, become a subject or citizen of any other government or nation, and ceased to be a citizen of the said United States, owing fidelity and allegiance thereunto ; but admitting it to be true, that the said Jared Shattuek, the libellant, was an inhabitant of the said island of St. Thomas, this protestant did then, and does still, *4631 verily believe, that the said Jared Shattuek had repaired to the *said J island of St. Thomas, or remained there, for the purpose of carrying on an illicit and clandestine commerce with ports and places within the territory and dependencies of the French republic, during the hostilities which were then waged between the United States and the French republic, and also between the King of Great Britain and the said French republic.
And this protestant further avers, propounds and says, that believing, from all the appearances, circumstances and reasonable and just causes of suspicion, herein before averred and propounded, touching the original American character of the said schooner Mercator, the voyage on which she was actually proceeding, the false destination declared and represented in the said letter of instructions, and other papers exhibited and found on board, the description of the master and crew, and the birth-place and original allegiance of the said Jared Shattuek, the libellant, that the said schooner Mercantor was a registered vessel of the said United States, voluntarily carried or suffered to proceed to a French port or place as aforesaid, and to be employed as aforesaid, contrary to the intent, and in defiance of the prohibitions of the said act of the congress of the United States, entitled “ an act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof this protestant, in obedience to the said act of congress, and to his official instructions, took possession of the said schooner as aforesaid, with a view to such further examination and proceedings as the law of nations, and the laws of the United States, should warrant, justify and require. But this protestant avers, that such possession was taken lawfully, upon the just and reasonable causes, motives and designs aforesaid, and with the utmost care, caution and solicitude, that the said schooner Mercator and her cargo, should thereby suffer no injury, damage or spoliation; and that the real national character, and the real commercial objects of the said schooner Mercator, of her pretended owner, and of the said master and crew, while prosecuting her said voyage, should be more fully examined and satisfactorily ascertained, without any unnecessary detention or delay, this protestant, at the time of placing on board of the said schooner Mercator, an officer and four seamen as aforesaid, did not remove, nor take therefrom, the said master and crew of the said schooner Mercator, *. or any nor remove, take away, cancel or destroy, any of the -* papers and documents of said schooner Mercator and her cargo, but ordered the officer, so put on board of the said schooner, having on board her said master and crew, and all the documents and papers of the said schooner and cargo, to make the best of his way to Cape Frangois, there to deliver all his letters to Silas Talbot, Esq., then commodore and commander of the public vessels of the said United States, upon that station, and to wait the orders of the said Silas Talbot, with express instructions, also, to pay particular attention to everything belonging to the said schooner Mercator and her cargo, seeing that nothing should go to waste, and to deliver the said schooner to the said master thereof, if the said Silas Talbot, commodore and commander as aforesaid, should clear her.
And this respondent further avers, propounds and says, that in a short time, not exceeding the space of six hours, or thereabouts after the said schooner Mercator had parted from the said schooner Experiment, destined for Cape Frangois as aforesaid, under the orders aforesaid, the said schooner Mercator was captured on the high seas, as prize, by a British private armed vessel of war, called the General Simcoe, commanded by Joseph Duval, who thereupon forcibly took the said schooner Mercator and her cargo, from and out of the possession, care, custody and control, as well of the said master and crew of the said schooner Mercator, as of the said officer and men who had been put on board of her as aforesaid, by this protestant, and who were thereupon, taken out of and removed from the said schooner Mercator, into and on board of the said British privateer, and the said schooner Mercator and her cargo, sent to the island of Jamaica, under the charge of a prize-master and men belonging to the said British privateer, without the assent, connivance, assistance, negligence or fault whatsoever of this protestant, or of the officer and men whom he had put on board of the said schooner Mercator as aforesaid, for the causes, and with the intentions, aforesaid.
And this protestant further avers, propounds and says, that the said schooner Mercator, and cargo, being so as aforesaid captured on the high seas, as prize, and sent to the said island of Jamaica, by the said British privateer, a libel, in due form of law, was exhibited and filed by the said, captors, in the court of vice-admiralty, lawfully established in the *said p,. island of Jamaica (being a court of competent jurisdiction in all mat- *- ters of prize), alleging and charging, that the said schooner Mercator and cargo were the property of France, or of the King of Spain, or of some person or persons being subjects of France, or of the King of Spain, or inhabiting within some of the territories of France, or of the King of Spain, and were good and lawful prize, inasmuch as hostility and war then notoriously subsisted between the King of Great Britain, on the one part, and the said French republic and the King of Spain, on the other part; and thereupon, the said captors, in their said libel, prayed that the said schooner Mercator and her cargo, might be adjudged lawful prize, and be confiscated and condemned.
And this protestant further avers, propounds and says, that notwithstanding the denial of the said Jared Shattuck, in his said libel contained, he, the said Jared Shattuck, received speedy and full notice that the said schooner Mercator and her cargo were captured as prize, and sent into the said island of Jamaica as aforesaid, and there prosecuted by the said captors as prize, in manner aforesaid; and thereupon, a claim was exhibited, and a defence made, by and for the said Jared Shattuck, the alleged owner of the said schooner Mercator and her cargo. And upon hearing of the parties, by their respective advocates, and upon examining all the ship’s papers and documents, together with other evidence and proofs in the cause, the judge of the said court of vice-admiralty was pleased to adjudge and decree, that the said schooner Mercator, and her general cargo, were good and lawful prize, and did therefore adjudge, order and decree, that the same be condemned and confiscated to the use of the said captors, &c. From which sentence, the said Jared Shattuck, the libellant, prayed leave to appeal, ■ which was granted. But this protestant avers, that this appeal has not been duly prosecuted by the said Jared Shattuck, but has been altogether waived and abandoned.
And this protestant further avers, &c., that at the time of the capture of the said schooner and cargo by the British privateer as aforesaid, and at the time of the libel and of the condemnation, and of the appeal as aforesaid, peace and amity notoriously subsisted between the United States of America and the King of Great Britain and the King of Denmark ; and also between * «1 *the said King of Great Britain and the King of Denmark, and their J respective citizens and subjects : and therefore, this protestant avers, that if the allegations contained in the libel of the said Jared Shattuck had been true, sentence of condemnation and confiscation, as prize, could not, and would not, have been pronounced as aforesaid, against the said schooner Mercator and her cargo, by the said court of vice-admiralty, having competent jurisdiction upon all matters of prize, as aforesaid, and therein proceeding according to the law of nations and the faith of treaties.
Wherefore, this protestant prays that the said libel may be dismissed with costs, &c.
A. J. Dallas, for the protestant.
The replication of Shattuck was as follows:—
To the Honorable Richard Peters, Esq., judge of the district court of the United States in and for the district of Pennsylvania. In the case of the schooner Mercator and her cargo, Toussaint Lucas, master. The replication ■of Jared Shattuck, late owner of the said schooner Mercator and her cargo, to the protest of William Maley, Esq., late commander of the public armed schooner of the United States Experiment.
This replicant, not confessing or acknowledging any of the facts, matters and things, by the said William Maley, in and by his said protest set forth, propounded and alleged, and also saving and reserving to himself all and all manner of exception to the manifold uncertainties and insufficiencies in the said protest contained, and to the informality thereof, and protesting on his part, that the said William Maley ought to have appeared absolutely, and not under protest, and made direct answer, upon oath or affirmation, to the charges in this replicant’s libel contained, or to so much thereof as he has been advised to be material for him to reply unto ; doth aver, allege, propound and say, that this replicant was born in*the state of Connecti- -* cut, in the year 1774, and when he was between fifteen and sixteen years of age, viz., about the end of 1789, or beginning of 1790, the United States then being at peace with all the world, he migrated to the island of St. Thomas, one of the dominions of the King of Denmark and Norway, with a view to settle and establish his permanent residence in that island. That he served his apprenticeship there, with a mercantile house, for about six years, and from his first arrival, has constantly and permanently resided, and now continues to reside there. That on the 10th of April 1797, the United States being still at peace with all tbe world, he became a naturalized Danish subject, and burgher of the said island, and shortly afterwards, intermarried with an inhabitant of that place, by whom he has several children, all living in that island. That he did acquire, and now hold reals estate there, and is there permanently settled and established, and carries on the trade and business of a merchant.
The replication then went on to deny that he went or remained there for the purpose of illicit trade. It averred, that during the war between France and Great Britain, which terminated by the treaty of Amiens, he was largely concerned in trade, at and from St. Thomas to foreign ports, and had a number of vessels, navigating under the Danish flag, in the West India seas. That several of his vessels were taken as well by British as French cruisers, carried into their respective islands, and there acquitted, and his neutral character, and that of his property, was acknowledged by the tribunals of both nations.
That in May 1800, he loaded the Mercator, as mentioned in his libel, and sent her on a voyage to St. Domingo, consigned to the said Toussaint Lucas, who was also a bond fide subject. That the original destination of the vessel was for Port-au-Prince, alias Port Republican, a place then in the power, and under the dominion of the negro General Toussaint, not of the British troops, as stated in Maley’s protest. That, at that time, commerce was lawfully carried on between the United States and ports of St. Domingo, which were in the power of General Toussaint. That on the Sd of May 1800, he gave *written instructions to Lucas, to proceed with his p*. vessel to Port-au-Prince, but as she was ready to sail, he was in- *- formed that the forces of General Toussaint had taken Jacmel from General Rigaud, who held for the French republic. That Jacmel is a port of the island of St. Domingo, which lies between the island of St. Thomas and Port-au-Prince, and is in the way between the former and the latter. That the distance from Jacmel to Port-au-Prince is, by land, only between thirty and forty miles, but by sea, upwards of one hundred leagues. That conceiving it to be advantageous to try the market at Jacmel, before proceeding to Port-au-Prince, he gave verbal- directions to Lucas for that purpose.
It denied that anything false or colorable was intended, and that any of the Mercator’s papers were false or colorable, and that he gave any orders to Lucas to deny or conceal his intention of going into Jacmel.
It admitted, that after the passage of the act of congress, “ further to suspend,” &c., and before the 15th of May 1800, the Mercator was an American registered vessel, owned by a citizen of the United States, and sailed from Baltimore, but denied, that when taken by Maley, she was navigating contrary to the laws of the United States. It averred, that on the 26th of November 1799, he purchased her bond fide at St. Thomas, for the sum of $8500, which he had actually paid and took a bill of sale, which was on board, at the time of her capture. That from the day of purchase, until her capture, he was bond fide the sole owner, and that no other person had any interest in her or her cargo. That almost the whole shipping of the island of St. Thomas consisted of vessels built in the United States, and in the island of Bermuda, and brought to the former island for sale.
That at the time of her capture, the Mercator was navigated as a bond fide Danish vessel, and had on board every paper and document which the law required to prove her neutrality; and especially that she had, 1st. The ting’s passport, in the usual form ; 2d. The certificate of measurement; 3d. Her muster-roll, or official list of her crew ; 4th. The bill of sale ; 5th. *4791 -^16 burgher’s *brief of her master Toussaint Lucas ; 6th. Her clearance; 7th. The invoice and bill of lading of her cargo, duly attested, as to the ownership and neutrality thereof ; 8th. The master’s instructions, or sailing orders ; and 9th. A certificate, iipon oath, of several respectable merchants of the island, attesting the fact of Shattuck’s citizenship and residence in the island. That the crew consisted of eleven persons, viz., the master, the mate, seven seaman, the cook and a boy, who were all, by birth, Italian or Portuguese. That the master was a native of Leghorn, in Tuscany, was a Danish subject, and had resided seven years in St. Thomas. That very few Danish seaman are to be had in the Danish islands ; and that, except the officers of government, there are very few Danes in the islands of St. Thomas and St. Croix, the inhabitants being chiefly native English and Americans, with some French and other foreigners.
It denied, that by the laws of Denmark, a vessel could not be lawfully navigated by others than Danish or naturalized Danish sailors, and averred, that the crew might be subjects of any nation whatever, provided that, in time of war, not more than one-third thereof be native subjects of one or other of the belligerent powers. It denied, that any of the crew of the Mercator were subjects of any of the belligerent nations ; and that at the time of her capture, there was any reasonable cause of suspicion that she was an American vessel carrying on an illicit trade. It submitted to the court, whether Maley had a right, by the law of nations, to arrest a vessel on the high seas, sailing under the protection of his Danish majesty’s royal passport, under pretence of a violation of a municipal law of the United States. It suggested, that Maley acted maid fide, and offered to prove, that he was in the habit of violating the law of nations, and the instructions of his government, with respect to neutral vessels and property, and that he was dismissed from the service of the United States, principally on that account.
With respect to the capture by the British privateer, it admitted, that the Mercator was so captured, while under the protection of the United States, *¿<701 an<^ fbeir national *flag, but did not admit, that it was without the J connivance or fault of Maley, or the officer whom he put on board. It admitted, the condemnation as prize ; but averred, that it was the duty of the officer and men to have resisted the capture, and to have demanded of the court of vice-admiralty, at Jamaica, restitution of the vessel and cargo, on the ground, that the same had been unlawfully, and in violation of the respect due to the national vessels of the United States, and to the flag thereof, taken from the possession, and from under the protection, of the commander of one of the public vessels of war of the United States.
It admitted, that Lucas filed a claim for the vessel and cargo, before the vice-admiralty court at Jamaica, and that they were condemned as prize, but alleged, that the sentence of condemnation was contrary to the evidence. It admitted also, that an appeal was entered, and exhibited an exemplification of the proceedings. It denied, that Lucas was bound to exhibit a claim, or to appeal from the condemnation, and that Shattuck was bound to prosecute the appeal, but averred, that the whole should have been done by or in behalf of the United States, to whom alone the vessel and cargo would legally have been restored, as having been taken from their possession, and from under their protection.
It averred, that Shattuck, as soon as he received notice of the capture and condemnation, gave information thereof to the governor-general of the Danish West India islands, and to Richard Soderstrom, charged with the consular functions for the King of Denmark, in the United States, who communicated the information, without loss of time, to the government of the United States, and claimed reparation. That the government of the United States expressed a wish that the appeal should be prosecuted, in compliance with which Shattuck, without delay, forwarded the necessary papers to England ; but when they arrived, he was informed by his proctors, that it was useless to prosecute the appeal, because the prize-money had been distributed, and the prize-agent had died insolvent.
*It denied, that the vessel and cargo would not have been con- r^.*, demned, if they had been really and bond fide neutral property, L and averred, that they really were such as stated in his libel, and did not admit, that he was precluded by the sentence of the court of vice-admiralty of Jamaica from showing the same.
It concluded, “that for aught that has been said and alleged by the said William Maley, in his protest aforesaid, this replicant ought not to be precluded from obtaining the benefit of the prayer of his said libel; he, therefore, prays, that the said William Maley may, by the interlocutory decree of this honorable court, be ordered to appear absolutely, and without protest, before your Honor, so that further justice may be done by this honorable court in the premises, as to right shall appertain.”
(Signed) Jared Shattuck.
Jared Shattuck, being duly sworn according to law, on his oath, doth say, that all and singular the facts, matters and things, by him in the foregoing replication stated, as far as they relate to his own acts, and matters within his own knowledge, are true; and inasmuch as the same relate to the acts of others, he verily believes them to be true.
(Signed) Jared Shattuck.
Sworn before me, the 26th of May 1804,
(Signed) Richard Peters.
The rejoinder of Maley was as follows :—
This rejoinant, saving and reserving to himself all and all manner of exception to the manifold uncertainties and insufficiencies in the said replication contained, and not confessing or acknowledging any of the facts, matters and things by the said Jared Shattuck in and by his said replication set forth and alleged, but denying the same, saith, that the facts in thisrejoinant’s protest set forth, are true and sufficient to excuse him *from further appearance and answer to the libel of the said Jared Shat- *■ tuck.
(Signed) A. J. Dallas, for William Maley.
Whereupon, it was adjudged, ordered and decreed, that the libel be dismissed, with costs. From which decree, Shattuck appealed to the circuit court. Upon the appeal, the circuit court, (a) being of opinion that the appellant was entitled to restitution, with damages and costs, reversed the decree of the district court, overruled and rejected the protest of Maley, and ordered him to appear absolutely, without protest, before the district court, to whom the cause was remitted for further proceedings. In the district court, upon the remission of the cause, the following entry was made :
And now, to wit, this 9th day of August 1805, the said William Maley, by Alexander James Dallas, his proctor aforesaid, having appeared absolutely as aforesaid, comes here into court, and for answer to the libel of the said Jar.ed Shattuck, propounds and says, that the facts by this respondent in his said protest set forth are true, and to the intent that justice may be done in the premises, this respondent prays that the said Jared Shattuck may be called upon to declare, on his solemn oath, to whom, and when, and in what manner, he paid for the said vessel called the Mercator, and whether the original American owner hath any interest therein, or in the restitution in value, by the said libel prayed for ; and whether any correspondence, and what, took place between the said Jared Shattuck and the captain of the •said vessel, or any other person, after she was carried into Jamaica ; and whether any correspondence, *and what, took place between the said Jared Shattuck and any persons, and whom, relative to the prosecution of an appeal from the decree of condemnation in Jamaica ; and whether ■the said Jared Shattuck made any, and what application, and when, to the American government, relative to the capture of the said vessel by this respondent, as aforesaid, &c.
A. J. Dallas, for the respondent.
And thereupon, the said Jared Shattuck, under all legal protestations and reservations, for replication to the answer of William Maley above mentioned, saith, that all and singular the facts, matters and things by him, this replicant, in his libel, and in his replication to the answer under protest of ■the said William Maley, filed in this honorable court, are true. Without this, that the facts by the said respondent, in his said answer under protest set forth, are true. He, therefore, humbly prays, that this honorable court, by its final decree in this cause, will be pleased to order, adjudge and decree, that the said defendant, William Maley, make restitution to this replicant of the value of the schooner Mercator, her rigging, tackle, apparel, &c., and of her cargo, at the time of her capture by the United States’ armed schooner Experiment, under the command of the said respondent; and that the said respondent pay to the said replicant the amount of the damages by him suffered, by reason and in consequence of the capture and loss of the said schooner Mercator, and her cargo ; the said value and damages to be inquired of, estimated and reported to this honorable court by the clerk, taking to his assistance two merchants, in the usual form; and that the said respondent pay the costs of this suit, &e.
Peter S. Du Ponceau, proctor for libellant.
The clerk having returned an estimate of the value and damages, amounting to $41,658.67, Maley filed the following exceptions to that Teport.
*4.'741 *k* That the respondent is charged with the expense of papers -* and outfits, advances to mariners, provisions and stores for the voyage, ;and labor of sailors, before the shipping.
2. "With the certificate of neutrality of property, duties at St. Thomas, commission on shipping the cargo, and insurance, without proof that any insurance was actually paid.
3. With expenses at Jamaica, and for copies of the proceedings in the court of admiralty, and of the appeal papers.
4. With expenses of Mr. Soderstrom.
6. With too much interest.
6. That there was no proof of the actual price of the schooner, other than the bill of sale on board.
•7. That there was no proof of the value of the cargo, other than the invoice on board.
In the district court, judgment was entered, by consent, in favor of the libellant, for the amount reported by the clerk, saving all exceptions upon the appeal. In the circuit court, the following answer of Shattuck to the exceptions to the report of the clerk was filed.
1st. To the first exception, he answers, that these expenditures of outfits, &c., made after the purchase, and after the sailing of the vessel, increased the value thereof, and are properly charged as a part of the said value. The same were allowed in the case of the Charming Betsy; confirmed by a decree of this court (the circuit court) and not appealed from.
2d. To the second exception he answers, *1. As to the insurance, that it is a regular mercantile charge, the owner being considered as his own insurer. That it is generally admitted in mercantile accounts. That it is peculiarly admissible, in the case of an unjust capture like the present, however it might be in a case of lawful capture, or capture with sufficient probable cause. 2. The commission on shipping is also a regular mercantile charge; the said commission, the duties of exportation paid at St. Thomas, and the certificate of neutrality, would have been charged on the goods, had the vessel arrived at the port of her destination. The present being a case of unjust capture, the respondent conceives that the commissioners would have been justified in allowing to him all the loss of possible profit, and to have taken into view the profit which he, could have made, had the vessel arrived at the port of her destination, whereas, they have only indemnified him for his actual losses, and he conceives that he ought not to be debarred from any part of his said indemnity.
3d. To the third and fourth exceptions, he answers, that the said expenses are reasonable, and the like were allowed and confirmed in the case of the Charming Betsy.
4th. To the fifth, he answers, that the interest is not overcharged.
6th. To the sixth and seventh, he answers, that the evidence of the papers found on board is sufficient in law, in prize causes, unless contradicted by other evidence. That it is confirmed, in this case, by the oath of the party, contained in the pleadings in this cause. And as to the ship, is again confirmed by the oath of the same party, taken a second time on special interrogatories of the appellant, William Maley.
The answer of Shattuck, upon oath, to the several interrogatories contained in the answer of Maley to. the libel, stated, that he purchased the schooner Mercator, at St. Thomas, on the 26th of November 1799, of one John Liddel, of Baltimore, for the sum of $8500, *which, at the time of purchase, he actually and bond fide paid to the said John Liddel, in Spanish milled dollars. That the original owner had not then, nor had had, at any time since the purchase thereof by the respondent, directly or indirectly, by way of trust, cover or otherwise, any interest therein, nor in the restitution in value, or damages prayed for in the libel.
That to the best of his recollection, the said schooner was taken by the British privateer, on the 15th of May 1800, was carried into, and arrived at Jamaica, and libelled on the 23d of the same month, and condemned as lawful prize on the 28th of June following. That the respondent was informed of the capture, by a letter from Lucas, and that Dick, McCall & Co. had taken the necessary steps to defend the property. That he was informed, afterwards, by the arrival of a Mr. Grigg, in the beginning of August 1800, that the schooner was condemned, and that an appeal had been entered. That the respondent had no opportunity of writing to Lucas, during the trial. That immediately upon receiving notice of the condemnation, he applied to the commandant-general of the Danish West India islands to use his endeavors to obtain reparation from the American government, to which he received an answer (which is lost), together with a letter for the secretary of state of the United States, which he forwarded.
That being advised that the United States were the proper party to prosecute the appeal, and fearing that his further interference might prove prejudicial to his interest, he did not prosecute the appeal, until he received from Mr. Soderstrom, a copy of a letter from the secretary of state of the United States, to him, dated the 26th of November 1800, by which he understood that the government of the United States wished him to prosecute his appeal, in consequence of which, he wrote for that purpose to his correspondents in London, by whom he was informed, that they had taken the necessary steps to procure a reversal of the decree of condemnation; but that, in the meantime, the proceeds of the sales of the prize had been paid to the prize-captain, who had died insolvent, so that no redress was finally had.
*4771 i|:Gn the 29th of January 1806, the circuit court affirmed the sen^ tence of the district court, except as to the first and second items in the report of the clerk, and decreed restitution of the value and damages, amounting to $33,244.67, and costs. From this sentence, Maley appealed to this court. The libellant also appealed as to so much of the sentence as disallowed those two items of the clerk’s report.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
