
    THE SCHOONER MARIA. CHARLES F. ADAMS, Administrator, v. THE UNITED STATES. GEORGE G. KING, Administrator, v. THE SAME.
    [French Spoliations,
    938, 1927.
    Decided January 11, 1904.]
    
      On the Proofs.
    
    The Maria sails to Barbados, where she takes on a new cargo and sails to other West Indian ports. While sailing from Grenada to Martinique she is captured, carried in and condemned, the master being imprisoned without being allowed to defend his vessel at the trial in the prize court.
    The seizure and condemnation of a vessel may have been for good cause, but it was the right of the master to be present at the trial before the prize court to defend the owners; and where he was prevented by imprisonment from so doing the proceeding was ex parte and wholly void. Other cases reviewed.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The schooner Maria, Thomas Gardiner master, sailed on a commercial voyage October 27, 1796, from New London, Conn., bound to Barbados, where she duly arrived, and sailed from thence to Tobago. That the said vessel went from Tobago to Martinique and Grenada, and while peacefully pursuing her return voyage from Grenada to Martinique was seized on the high seas by the French privateer Two Friends and carried to Guadeloupe, where both vessel and cargo were condemned by the French tribunal of prizes sitting at that place.
    The grounds of condemnation as set forth in the decree were as follows:
    “Considering that it follows from all the documents, and particularly from the instructions given to Captain Thomas Gardiner by the citizen Cruden, one of the victuallers of the English army at Martinique, that the schooner Maria sails from island to island in the service of the enenry; that she has on board planks and copper nails for the sheathing of English vessels, and that consequently she renounces her neutrality, the tribunal declares good prize,” etc.
    
      The circumstances of the capture of the Maria and the subsequent imprisonment of the master are set forth in his protest, dated New London, Conn., May 3, 1797, as follows:
    “That he, the said Thomas Gardiner, on the 27th day of October, anno Domini 1796, sailed in the aforesaid schooner, in the employ of Joseph Howland, of Norwich, from New London, and bound to Barbados, laden with fish, lumber, and oxen, and consigned.to Messrs. Cruden, Pollard & Stewart, of the latter place, and that he arrived at his destined port after a passage of thirty-three days, and that he sailed by the orders of the said house of Cruden, Pollard & Stewart for Tobago, where he discharged. Soon after which he sailed from Tobago to Martinique and Grenada, but that on his return from the said Grenada to Martinique, on the 4th of January now last past, he was taken by the French privateer Two Friends, and carried into Guadeloupe, at which place, without his being-suffered to defend, the said schooner Maria was libelled, condemned, knocked down by inch of candle, and pocketed with a degree of dispatch and mockery of all justice astonishing to one whose habits of life have not led him to an acquaintance with the complaisant and fraternal ■ squeeze of the midnight robber or a French administration, and that his papers, comprehending his log book, register, and those of private concern, were all taken from him by the orders of that standing burlesque of all that is manly and honorable, Victor Hugese; and that he, the appearer, himself, after experiencing the most studied and refined abuse, was thrust into a dungeon, that mild and placid preceptor of French citizenship, where he continued for thirty-three days, at great perils of life, at the end of which time he was exchanged as a prisoner of war and sent to Martinique, from which place he fortunately obtained a passage to Stonington by the way of New York.”
    II. The Maria was a duly registered vessel of the United States, of 72f~! tons burden, built in Connecticut in the year 1795, and owned by Thomas Gardiner, Oliver York, and Iienry Werder, citizens of the United States.
    III. It does not appear of what the cargo of the Maria consisted at the time of said seizure beyond that she had on board plank and copper nails. Nor does it appear who owned the said cargo nor the value thereof.
    IV. The loss to said Thomas Gardiner, Oliver York, and Henry Werder, owners of said vessel, as far as shown bv the evidence, was as follows:
    
      Value of vessel..
    Premium of insurance paid..■.
    Amounting m all to. 3,046
    Deduct insurance received. 1,500
    Net loss. 1,546
    Y. November 4, 1796, Joseph Howland, for Thomas Gar-diner and the other owners of the Maria, effected insurance thereon in the office of Peter C. Brooks, insurance broker, in the sum of $1,500, paying therefor a premium of 10 per cent, for a voyage from New London to one or more ports in the Windward, W est India, Islands, and at and from thence back to New London. The policy was underwritten by the following persons, citizens of the United States, each in the sum set opposite his name, viz:
    Crowell Hatch. §500
    David Greene. 500
    Stephen Gorham... 500
    Thereafter the said Brooks, as agent, duly paid the said assured the said sum of $1,500 as and for a total loss by reason of the premises, the same being a total loss to each of said underwriters of the sum subscribed by him.
    YI. December 23, 1801, David Greene, in consideration of $6,000 to him paid by Peter C. Brooks and the assumption of all and any liabilities and disadvantages .arising from his underwriting in the office of said Brooks, assigned to the said Brooks all his right, title, and interest .in and to all insurance done by him as an underwriter in the office of the said Brooks.
    November 21, 1801, Stephen Gorham, in consideration of $2,986.65 to him paid by Peter C. Brooks and the assumption of all and any liabilities and disadvantages arising from his underwriting in the office of said Brooks, assigned to the said Brooks all his right, title, and interest in and to all insurance done by him as an underwriter in the office of said Brooks.
    
      Messrs. Curtis <& Pickett and Mr. George 8. Boutwell for the claimants.
    
      Mr. John IF. Trainer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The schooner Maria, Thomas Gardiner, master, the vessel in controversy, sailed from New London, Conn., October 27, 1796, on a commercial voyage bound to Barbados laden with a cargo of fish, lumber, and oxen, consigned to Messrs. Cru-den, Pollard & Stewart, of the latter place. Upon the arrival of the vessel at Barbados, the master, in his protest, says ‘ ‘ that he sailed by the orders of said house of Cruden, Pollard & Stewart for Tobago, where he discharged;” that the vessel sailed from thence to Martinique and Grenada, and that while pursuing her return voyage from Grenada to Martinique in January, 1797, she was seized on the high seas by the French privateer Two Friends and carried into Gaudeloupe, where both vessel and cargo were condemned by the French tribunal of prizes sitting at that place.

When so seized and condemned the vessel was laden with a cargo consisting of planks and copper nails. The grounds of condemnation were: “Considering that it follows from all the documents, particularly from the instructions given to Capt. Thomas Gardiner by the citizen Cruden, one of the victual-lers of the English army at Martinique, that the schooner Maria sails from island to island in the sendee of the enemy; that she has on board planks and copper nails for the sheathing of English vessels, and that consequently she renounced her neutrality,” the vessel was declared to be good prize.

The question presented for our decision, therefore, is: Was the condemnation legal? The claimant’s contention is that inasmuch as article 24 of the treaty of 1778 between the United States and France, then in force, provided that “planks, boards, and beams, and all other things proper, either for building or repairing ships, and such other goods as may not have been worked into the form of any instrument or thing prepared for war bjr land or by sea shall not be reputed contraband,” that therefore the condemnation on the grounds stated was illegal.

With what cargo the vessel sailed from Tobago to Martinique and from thence to Grenada does not appear, either from the master’s protest or otherwise, but from the decree it appears that the cargo of the vessel, at the time of her capture, from Grenada to Martinique, consisted of “planks and copper nails for the sheathing of English vessels,” but to whom consigned does not appear.

The master in his protest (after reciting that he had sailed for Barbados with a cargo of lumber and oxen consigned to Messrs. Cruden, Pollard & Stewart at that place) says that upon his arrival at Barbados he sailed, by the order of the said house of Cruden, Pollard & Stewart, to Tobago, where he discarged, soon after which he “sailed from Tobago to Martinique and Grenada, but that on his return from the said Grenada to Martinique, on 4th January now last past, he was taken by the French privateer Two Friends, and carried into Gaudeloupe,” where the condemnation took place, he being denied the right to defend his vessel.

Assuming that the seizure was lawful and that the vessel was for the reasons stated subject to condemnation and the master to imprisonment, was the condemnation legal when the’master was denied the right to defend?

In the case of the brig Sally, Wells, master (37 C. Cls. R., 74, 77), the court held that even if the capture of the vessel was legal, “it was the duty of the captain of the capturing vessel to afford the captain of the Sally every reasonable opportunity to assert and maintain his rights in the proceedings to condemn the vessel founded upon the capture.” Furthermore, it was held that “ it is not the seizure which confers the right of property upon the seizing vessel, but it is the judicial determination of the question of the liability of the ship founded upon such seizure.”

In the case of the snow Thetis, Cameron, master (37 C. Cls. R., 470), it was in substance held that where the proof shows that the master was deprived of the right to defend the condemnation was "ex parte and the proceedings illegal; that to enable the captor to dispose of the ship and cargo there must be a regular judicial proceeding wherein both parties might be heard.

Does the present case, therefore, come within the rule thus announced ?

True, the right of a neutral to carry on trade with a belligerent is subject to the condition that such right shall not be exercised so as to aid the belligerent, either in the prosecution of his own operations or in escaping- from the effects of those of his enemy. (Hall’s Int. Law, 534.) But a violation of that right will not deprive the master of his right to appear and defend.

The vessel may have been engaged in carrying goods to aid in the sheathing of English vessels, but the vessel was an American vessel, owned by citizens of the United States, and it was the right of the master to be present to defend against the charge so made, and as he was deprived of that right the court cannot presume that the grounds of condemnation were well founded. Nor can it be held that the decree under the circumstances is conclusive on that point, as the condemnation was ex parte and the proceedings illegal. (Snow Thetis, supra.) Hence the sale and disposition of the ship and cargo were without that judicial sanction essential to pass title.

It must therefore be held that the condemnation was illegal, and for that reason the claimants are entitled to indemnity' for the insurance paid on the vessel.

The owners of the vessel and. cargo are not in court, the only claims being those of the insurers of the vessel. The findings of fact, together with this opinion, will be certified to Congress accordingly.  