The Æolus-Weed, Claimant

(IiwtTance Court.) The Æolus—Weed, Claimant. A question of fact under the non-importation laws. Dcfenca, set Up on the -plea of distress', repellad. Condemnation. Appeal front the circuit court for the district of Massachusetts. This vessel and cargo were libelled' in the district Court for the District of Maine, as forfeited to the United States, for'lading onboard at Liverpool, in Great' Britain, certain goods which were of the' growth, pro-; duce, and manufacture of Great Britain, with intent to import the same into the Unite! States, and >with the knowledge of the master, and also for an actual importation; of thé same into the United States. The seizure wa-s made at Bass Harbour, in the district of Frenchman’s Bay, by Meletibh Jordan, collector of that district.. A petition was intérpdsed by Joseph T.*Weod, of Wiscasset, who styled himself agent of Peter' Molus and Israel Rosnel, both of Bjornburgh, in Finland in Russia and also of Frantz Scholtz, of Archangel, in Russia, merchants, and subject? of the Epiperor of Russia. The petition stated that Molus, Rosnel, amd Scholtz were owners of the brig and cargo ; that she sailed from Liverpool in the beginning of December, 1813, with a cargo bound to. the Havanna, with, liberty and instructions to touch at some port in North America, to ascertain whether, according to existing laws, théy could be admitted to. an entry, añd if not* to receive ?uch orders as the agent of the owners' might give. That after a long passage of 76 days» and experiencing severe weather,- and the vessel being in a leaky condition, and the provisions growing short, she was compelled to make BassrHar.bour: That there waf some expectation at Liverpool, when the .Eolus sailed, that a treaty of péace.between the United States and Great Britain h?-d been concluded, or was in great forwardness. The pétffcmn prayed that the vessel and cargo might be restored to Mr.. Wood., on his giving bail for the appraised value. This claim wasíléd the 14th of February, 1814.. At the' May term following, Molus &Rosnell claim the. brig as their property, and Scholtz claims the- cargo as belonging to himself. In February term, 1815, a rule1 was made on claimants to produce the log-book at the trial, and an ¡original letter to- Ji T. Wood, mentioned in the deposition of the supercargo. Montero, maté of the brig, swore that she sailed'direct from Liverpool to the United States. The captain on the passage told.him that the vessel was bound to. Ibe United States. The captain and supercargo said it was their intention to have gone to Wiseasset, or Portland, where, they were to discharge, but' owing to* the bad state of their rigging, and the wind being ahead, they put into. Mount Desert, where they were detained by the custom-house officer. He also states, that it was agreed, in Liverpool, with all the sailors, himself and the cook excepted, that they should come to the United States,, and return from thence íc T ’■verpool. About thnee months after, the mate was examíned again» when he tolda story, so different from the relation which is .found'in his first deposition, that but little credit is due to him,as a witness for either party. Lingman, one of the mariners of the dEolus, swore, that he was shipped on board that vessel in October, last, she then lying-in Liverpool, on a.voyage to some port in America, and fr,om thence back to some- port in Europe. Daniel Molus, master of the iEoltis, testified, mat ip October, 1813^, he came to Liverpool, from Bjornburg in the Brig iEolus. One Lourandey who was master of the.brig, having a pov^er to charter her’ as he might think proper, did charier her to Frantz Scholtz, of Archangel, by his agent, David Morgan, on a voyage, to the Havanna, and a port,in North or South America. He was ordered by Morgan, the agent of S.choltz, to proceed with the brig to the Havanna, andcall.ftff such ports as the supercargo should direct. On. the 4th of.December,. 1813, the brijg left.. Liverpool. Two days after, he was ordered by the SUpercargo to. proceed off the port of Wiscasset, a«d land some passengers, when he would receive further orders from the supercargo, who expected to find further orders there, On their passage, the brig had thirteen of her chains broken, some of them in the .eye round the bolt, and therefore could not be repaired until some of the cargo was discharge^!. Five of her shrouds were carried away, the bolts in the heel of her bowsprit were broken, and the bowsprit came some in upon deck. The stern boat was,, by a seat stove in pieces at the stern and lost, with several light sails which had been t'nown into her.. The spritsail yard was lost; her waist-rails and boards Were wholly carried away by the sea. The binnacle was severahfimes capsized, and the compasses very milch injured. One of the passengers was lost overboard. The brig was short of water; and at the time of her arrival on the American coast, the crew was in very great distress, being on a short allowance of water, which was very thick and bad, and not fit to be used bn til it was boiled, to make it thin. There was ño rigging to repair the Vessel any longer. On the 17th of February, 18J4, a council of the whole ship’s crew and passengers was held, and all were of opinion it was very dangerous' keeping longer at sea, -and were for getting into the first port which could be made. The supercargo reluctantly consented. If be had not, the brig must have gone in, as her condition would have justified ' the act, In the afternoon ¡of the 18th of February, 1814, the JEolus anchored in Bass-Harbour, after a passage of 75 days, in' which every. hardship had been, experienced. The vessel Was a complete wreck, and ihe’strength and spirit of •the crew nearly exhausted. . She wap immediately seized by ,the custom-house officer, and the papers all delivered up. Shortly after, the supercargo received advice from his agent, who/soon came on board himself. This witness speaks of a survey oí three ship-masters^ aftd of their opinion; but as no such survey is found in the proceedings, it is presumed that none was m,ade; or, if made, reduced to writing, He further states, that the brig had Been repaired while at Bass-Harbour, •at an' expénse of near 3,000 dollars. . The cargo was the sole property of Mr. Scholtz, of'Archangel,' and was put on board' by his agent, David Morgan, of Lon■don, who employed Richards, Ogden, & Sejden, as brokers for that purpose.- Frederic Williams testifies, that he was supercargo; that the brig was'Russian — expected in England that the ne.n-importation law would soon ' be repealed. His orders were to proceed to Havanna, and to call ■off Wiscasset, where he would receive orders Joseph Wood, agent of Mr. Scholtz, and if restric tions Were removed, to enter with/the brig; if otherwise, to proceed to the Havanna; had müch tempestuous'weather, carried away most of their chains, and many of the shrouds. On the, arrival of the brig.at Bass-Harbour, he wrote to Wood that the brig had been seized, and consulting him what had best be ■done. He. gave up his papers to the deputy-mar-? shall,-and took a. receipt for them, Wood wrote.to Jhim, and also came .down io the brig himself, and informed him that the vessel had been seized for an alleged violation of the non-importation law. He rer ceived his instructions as supercargo from Morgan, the agent of Scholtz, in London, and they were verbal instructions oply. He did not recollect that he had ever received any letter, eithér fr<jm Morgan or Scholtz, concerning this voyage. He is a native of Massachu setts, but had not resided' in. the United States for about four years previous to the commencement of this voyage. . Since the arrival of the ASolus, he has resided nearly two years in New-York. All the papers he had were repeipts from the cartmen in. Liverpool, and they were bundled together in the cabin, from which place he took them and delivered them to Wood, who, he presumes, has them. It appears by the testimony of Robert Kelly, that Wood informed him, in the beginning of February, 1814, that 'he expected a brig from the West Indies, and a Russian brig to call off the mouth of Sheepscot river for orders, and to know whether they can enter. He desires Kelly, by letters which are produced, to keep, a good look out for .these vessels, to, direct the one from the West Indies to proceed to Newport^ and to inform the captain or supercargo of the Russian brig, that the laws will nbl admit of his entering, unless he is in want of something, in which case he may put into the mouth* of the river. Kelly cruized off the mouth of the river for abput four weeks, w.hen he heard from Wood, that the Russian vessel had pgt into Mount Desert, and was seized. Thomas Rice relates a conversation which, he. overheard* between Wood and a Mr. Pepper, in which* the former offered the latter a handsome present fft. swear *hát he had been offered money by Haddock and Jordon, to give testimony against the brig, and in Which Wood also stated that he had offered the mate money, to contradict the testimony he had given for Jordan. > John Bridges swears, that, being in Liverpool, in November, 1813, with six other Americans, they were applied to by Mr. Richards, of the • house of Ogden, Richards, & Selden, who offered to find them clothes, to pay their board while at Liverpool, and to find them a passage to America. He accordingly supplied them with clothes, paid their board eight weeks, and then put them on board the Russian brig iEdiuS, in which they sailed for Portland. Samuel Haddock, jun. an inspector of the customs, went on hoard of the brig when she came into'BassHarbour, and demanded her papers of the supercargo, which he refused to give up, as he was determined to prdcéed further to the westward. He understood from the mate, that the supercargo had taken the bills of the argo from him, and burnt them. He thinks the brig might have proceeded on her voyage to the Havanna, when she came into Bass-Harbour, with such repairs as might have been made on board. None of the officers complained or intimated to him, that the brig had come into Bass-Harbour in distress, nor did .they pretend that the cargo was damaged, until they began to break bulk. By another, witness, it appears that, after the seizure, the master of the .¿Eolus, in company with the mate, púrchásed of him a chart of the Amelia islands, Ha■fannab, and the' coast adjacént, observing that' he had no idea of going such a voyage when heleft England, or he should have . provided himself with one. Abraham Richardson was put on hoard thé brag as air inspector of the customs, when she was seized, and continued1 on board till the cargo was discharged, which' was about 25 days. He overheard a conversation between Wood_ and the supercargo in the stateroom of the latter, in which Wood expressed a wish that' the brig had got to Wiscasset, as he had' told the collector at that place that'the brig was coming, and'that he had1 offered him 10,000 if he would let her enter. He observed that the collector did not tell him whether he would, but he believed that if the vessel had put in there they would have got her off very easy'. The supercargo observed to Wood, that if it was known that he, Wood, was concerned in the voyage it would condemn vessel' and cargo. Wood replied, “You must be very careful' not to drop á word about it. We must make it out Russian property, if we can.” The supercargo then remarked, that, if the collector would not clear out the brig for Wiscasset, they must make her out as bad'as possible, so that she could not he moved, and then bond the cargo; upon which Wood, observed* that if il was- condemned they should then make a good voyage, as the bonds would not be much more than, thé double duties: This witness heard no complaints onboard of any distress, and believes the iEoulus might, have proceeded to the West Indies. \ The papers on board represented the vessel and car®° as &aásiari property. On this, testimony the ’propfetty was condemned as forfeited to the United States, from which sentence the claimants appealed to this court. Mr* D. B. Ogden, and Mr; Wheaton, for the appellants and dairnahts, argued upon the facts, that the cargo was nót put on board with intent to import the same into the United States, but that the primary destination was to the Havanna, with orders to call off the coast of this country, and to enter, in case the non-importation laws should ,be repealed. But even if the fact were ever so well established, that the cargo was originally put- on board with intent to import, it into the United States, congress could not, consistently with the principles of universal law, forfeit the property of foreigners for an act dene by' them, in a fór*eign port; The putting on board the prohibited commodities with intention to import, is made a distinct, substantive offence, by the 5th section of the act of the 1st of March, 1809, ch. 195. This offence was consummated within a foreign territory. If the vessel had been captured on the high seas» before her arrival in the United States, she would have been tajeen in delicto, according .to' any construction by which this section can be applied to foreigners. The legislature might, indeed, intend to confiscate the property" of our o wn citizens, for acts done by them in foreign countries, because their allegiance travels with them wherever they go.. But the operation of a statute is generally limited to the territory, or the subjects of the country where it is made. This ,sectkm of the act may stand consistently with this constructioh ; but it will be confined in its operation to the conduct of our .own citizens. Tie subsequent coming into the waters’of the. United States -was occasioned by a vis major, and did not, constitute an importation in.law. To constitute such an importation, there must be a voluntary arrival within a port. An involuntary arrival is no>t an importation; nor an arrival within the jurisdictional limit's merely:, there must'be a voluntary arrival within some portj or collection district, with intent to unlade. The Attorney-General and Mr.. Preble, contra, argued upon the'facts that the primary destination was to the United States, and that the disfrés$npet up as a plea id justify the fact of importation, was fictitious, or created by the act of the parties themselves. Feb. 27th. Caseregis, Disc. 130. § 14—22. Reeves' Law of Shipping, 203—207. The Eleanor, 1 Edwards, 161, The Paisley, Id. App. 117. The Mary, 1 Gallis, 206. The United States v. Arnold, Id. 358. S. C. 9 Cranch’ 204. The Blaireau, 4 Cranch, 355. note. The Fanny, 9 Cranch, 181. [MAJORITY — Mr. Justice Livingston] Mr. Justice Livingston delivered, the opinion the court, and after stating the case, proceeded as follows i It is not necessaty or important, oh this occasion,inquire ipto the national character of the ¿Eó¡us, or to ascertain in whom the proprietary interest of the cargo resided, at the time of seizure; because, whether Russian, British, or American, they-are both equaflyr liable to forfeiture, if (he offence stated in the libel ‘has. been committed. The cargo, being avowedly of- the growth, produce, or manufacture of Great Britain,-it is conceded that a forfeiture must follow/ if. the fact, of a voluntary importation into the United States be made Out. Yet, in deciding this question, it is ijnpossible to discard- entirely from .view some of the circumstances which preceded, a-nd took place after (he arrival of tliis -vessel at Bass-Harbour,,which, -although not immediately connected, with any- calamity which -may- have brought her there, are not at1 all calculated to excite much sympathy or to call for any extraordinary exertion of credulity, while listening to the tale of distress,-on which every hope of restitution is now resled. Mr. Scholtz, a Russian merchant'at Archangel, in time of war between-this country and Great Britain, and during the existence of our non-importation act, Toads at that place no- less than five brigs with the products of Russia, which he- commits to the care of Mr. Morgan, a merchant at Liverpool, with instructions,' as is-said, to invest' the proceeds of those cargoes in such' British manufactures as he might judge suitable for salé in the Havanna. Mr-. Morgan, who,, at or about the time of-loading thése vessels, was at Archangel, proceeds to Liverpool,- disposes of the. cargoés there, charters the Russian brigiEólus, and déspatches her for the Havanna, tb the address of certain merchants there, who are informed by a letter from him of-'thé. origin of this adventure, and that he has sent to them a ..cargo, , in conformity with the orders of bis principal, which he begs them to sell at good, or even saving prices, and after investing proceeds in certain produce, to load the iEólus and send her to Mr. Scholtz, at Archangel, i'he instructions of. Mr. Scholtz, in an affair of so much' magnitude, no where-appear in the proceedings ; but if they were, in truth, of the kind stated by Mr. Morgan himself,' in his letter, which has just been referred to,'we shall find there was a total departure from them ; for not only was the cargo of the jEoIus the most unsuitable which could jiave been selected for a warm climate ; but the Havanna, to Which alonf, by his own account, he was to send the iEolus, was to be her port of destination only incase she-could not enter a port of the United States. When we find so great a departure from instructions as would inevitable fix upon the agent, a responsibility, to the whole extent of the property Committed to his charge,'we may-well be permitted to doubt .of their existence altogether, and to suspect that Mr. Morgan is acting.in the character of a principal, arid not, as he would have us believe, in that of a hutable subordinate agent. This suspicion is riot diminished, when we find, that although this suit has been pending between two and three years, Mi. Scholtz has interfer- . ed With it neither in petson,.nor has he'thought it worth his while to appoint any agent for that purpose. After thé purchase of a cargo principally-calculated for á nprthen market, and worth not less than 104,3Í1 dollars 37 cents, it is committed to a -supercargo, to ■ whom no other than verbal instructions are given. ■ This gentleman styles himself a commissioned officer in the Imperial .navy of Russia; and on hit arrival in the United, States can speak nothing but broken English. He. proves, however, to be a n&turalborn citizen of Massachusetts, who had been - absent from his country not more than four-years, and who, therefore, as may well- be supposed, was not long In recovering his vernacular tongue,- which we. soon find liim speaking with as much facility as if he had never'been absent from his native state. Mr. Williams, for that is the name of -the supercargo, Is directed by Mr, Morgan to call off Wi$easset, where he, would . receive -orders .from Mr. Wood, .who, .it steems, although it does not appear how, was fully ap. prised of. the destination of this vessel, and of $he time when she would probably be in his neighbourhood. Whence he derived this knowledge, or when, he has not deigned to inform the court, and although claiming so valuable a property lor the o vrners -of vessel and-cargo, he has shown no authority whatever from either of them for interfering In this way; and when, after a la pse of more than two years and a half from the .first institution of proceedings in the •district court, interrogatories are addressed to him, for the purpose of discovering who were' the real owners of this property, and whether, they had appointed him,' and whert, as their attorney,, and some o.ther matters which he alone could haVe rescued from the. mystery in which they are now involved, hé produces no authority whatever, and contents himself with informing the commissioners, that being ^ge»t of the claimants,, he thinks itimproper, at that time to answer afty interrogatories, and,shall, therefore, decline doing so. ... . ... . The ^lolus leaves,Liverpool without'being furnished with a chart of the. Havanna, or the coast adjacent, and two days after her departure the master is ordered by the supercargo to proceed off the port of Wiseaéset, which was accordingly done, and all idea of going ito the Havanna, if any were ever entertained, appears^ ¡from that moment, to be abandoned; and she is .accordingly fotind, after a boisterous and long winter’s pa$r--sage, in a high latitude off the American coast. N.ew^ if there be nothing'criminal in a vessel coming qn. our ■coast, with a boriajide intention of ascertaining wherthi er under existing laws, she would be permitted town ¡entry; vet, when a vessel is found in this. situation, in a boisterous season of the year, and so very, mUch.oujt of the way of the place to which it was pretended- shé was .destined, if our ports were shut,' apd then relies on-the pléá of distress for' the coming in, a court will require the most satisfactory proof of the necessity-which is urged m her defence. To make out this necessity, the principal;, if sot the only witness,produced, are the master and supercargo Oat of fifteen persons, these two are selected, and relied bn to establish this all-important fact. No .survey is had of the vessel or cargo either before or after it: was discharged. To these two .witnesses, if they stated a sufficient distress, which is not conceded, very serjt ous objections lie. The master, is so much.implicated Hi till the transactions of this nature, that it must *1- - waiys be mere or less hazardous fora claimant tores-'---1 to his testimony, when other ' and. less exceptionable witnesses 'are at hand. -Not only some inf the seamen •on board might have -been examined; but why not call on persons residing at the place where the vessel dis* ^charged, to examine her, and .to give their testimony, Such persons were at hand, for the master speaks of three ship masters who surveyed her, and gave their opinion. As-no survey ifc-produced and neither of these ship masters is a witness, the court can take no notice' of any opinion they may have entertained or have given to the master of the ASolus. The testimony of the supercargo on this subject, if if made out an adequate cause for coming in, would have beep entitled to more credit if he had behaved throughout this transaction in. a manner more consistent than he appears to have done. . But independent of this conduct, there are parts of his testimony which it is very difficult'to. believes and which throw a shade over the whole. He swears' that his instructions, for Morgan Were not in writing, and that he had never received er-1 ther from him or Scholtz, any l.ettér concerning his voyage. It is incredible that any man should be entrusted with, so large a property, without‘other than verbal instructions; or, at any rate,, it is so entirely out of the .common course of business, that the court cannot bé blamed for disbelieving it. But theré-, aré other cir cumstances which detract much froialka«&?edii of these two witnesses. There is every reason to' believe from other evidence in the canse,, that when the brig came info Bass-Harbour, neither of them thought of justifying their conduct on the ground of necessity. This suggestion was made to them by Mr. Wood, and not until they had been there a week or longer. This fact is proved in a way to admit of but little. doubt of its accuracy ; not only by the profound silence which was observed on this subject by the master and others* for some, time after the arrival of the brig, but by positive testimony, which establishes that the' allegation of distress was a, matter of concert between the superr cargo of Mr. Wood. It also appears by other witnesses in the cause, that the ¿Eolus, notwithstanding the injuries which she had received, might have proceeded to-the West-Indies without any other repairs.than such as might have been put-qn her .at sea. Upon the whole, the court is of opinion that the. coining in- of the iEelus Was voluntary, and not produced by any distress whic-h' could justify the measure^ aqd that thereiipoh fee sentence of the circuit court must be affirmed with costs;. [DISSENT — Mr- Justice Johnson,] Mr- Justice Johnson, disséntqd. This valuable vessel, with a cargo worth. 120,000 dollars, is claimed' as Russian property. She was libelled . as forfeited under the .provision-of the non importation act, and all questions respecting proprietary interest I consider irrelevant to the case. The excuse for putting into the port of Bass-Harbour was distress, and, .as in the case of the New-York, the minority of the - court are of opinion, that she ought,to have been permitted to store her cargo, repair, ire-ship it, and depart. Such evidently . was the policy of the law. under which she was seized,. which, had for its object the ««elusion of British goods’whereas .this seizure legalized, their i at rod uc lion into the country* It is urged .ii this ..case,. that a variety ‘bf circuí»!-* stances ■ indicated a fraudulent intention. That the examination of the witnesses . exhibits á melancholy view: of depravity of morals, I freely admit l, ' but the observation is fully as applicable to the testimony for. the prosecution, as that against it.- The two principal .circumstances.relied on as indicia' of -fraud, to . wit, her..clearing out for Havanna,and her having a cargo adapted'to a northern market, admit of an explanation perfectly consistent with innocence? For it is well known that á neutral never clears out froan a .British port to-a port of their enemy '»- and.kp té bier'hawing a cargo adapted to a northern market, it , is precisely what she avows-, that her intention-:. Wab-b' deposite it in-that market had the- prohibition Beeataken off on her arrival. Under thesé cürcumsfánees, it appears to-me.that the only question in the case .was-, whether the distress wag-accidental or factitibiis; If there had been-any fraudulent means made use of toi produce the injury sustained condemnation ought to follow. But if produced By canses not within the . control óf man, even though thb distress may not have been deemed, sufficient to entitle the party to'a permit to unlade and refit, yet it was no sufficient causé for condemnation, and'the vessel should have been ordered off. That the distress in this case was not factitious, nor very • inconsiderable, there is every reaáon,to believe. The .vessel had had a voyage of. seventy-five days; nearly double What might- reasonably have been provided, for she had Shipped a sea which carried away her. railings, hftd washed overboard one of her passengers ; her .shroudsaiíd bow-sprit weré materially damaged, and her water short. Under these circumstances, I must think that this collector was. less under the influence of humanity and a s°nse of duty, than that of avarice, in making this seizure. Had he libelled her as enemy’s property, X should have thought the case not destitute of reasonable grounds ; but it was not his interest to convert her into a drojt of admiralty, and it is not our; province* under this libel, to admit any thing into the case which Can bear the appearance of charging with one crime* and trying for another» Decree affirmed Vide ante, p. 59.