
    THE BRIG NORTH CAROLINA. MARGARET DEVEREUX, Executrix of John Devereux, v. THE UNITED STATES. MARGARET DEVEREUX, Administratrix of George Pollock, v. THE SAME. JOHN N. A. GRISWOLD, Trustee of the United Insurance Company, v. THE SAME.
    [French Spoliations, 288, 334, 328.
    Decided January 28, 1901.]
    
      On the Proofs.
    
    For a few years France tries, provisionally, the English and American system of judicial prize courts. On December 25, 1799, the new French constitution abolishes all prize courts. The Consuls with their administrative subordinates then constitute the only existing authorities in such cases until the establishment of the Council of Prizes, which acts under instructions of the Government. In July, 1800, the North Carolina is captured by a French privateer and taken into St. Bartholomew. In August the French tribunal of commerce and prizes at Basse Terre condemns the vessel and cargo. The seizure and condemnation are without legal justification.
    1. Article 4 of the French treaty of 1800, which provides that “property captured and not yet definitely condemned” “shall he mutually restored,” was intended only for cases where the property could be “restored.” If the vessel was lost or sold, if the res had ceased to exist, the article of the treaty did not extinguish a legal demand for indemnity.
    
      II. On the 26th of December, 1799, the French prize courts ceased to be judicial tribunals. The Council of Prizes thereafter established, acting' under instructions of the Government, was in effect nothing-more than an administrative bureau.
    III. An American shipmaster who found his vessel condemned by a French colonial court exercising jurisdiction'of prize cases was not bound to know that the court which France allowed to condemn his vessel was without jurisdiction.
    IY. For the French Government to allow its civil tribunals to make prize condemnations without having jurisdiction was but an aggravation of the injury done, and France would have been estopped from questioning tlieir jurisdiction.
    Y. It is the duty of the owners of the captured vessel to exhaust their legal remedy against the captors before they assert a liability on the part of a belligerent government. But it is also the duty of the belligerent government to furnish them with a tribunal in which they can exhaust their remedy within reasonable distance of the place of condemnation.
    
      The Reporters? statement of the case:
    The following are the facts of the case as found dj7 the court:
    I. The brig North Carolina, Richard West, master, sailed on a commercial voyage from Newbern, in the State of North Carolina, on or about the 27th day of June, 1800, bound for Antigua. While peacefully pursuing said voyage she Avas seized upon the high seas on the 27th day of July, 1800, by the French privateer La Mars and carried into the Swedish island of St. Bartholomew, where said vessel with her cargo were sold by the captors. On the 29th day of August, 1800, the French prize court at Basse Terre, Guadaloupe, condemned the same, thereby confirming said capture and sale, whereby both Aressel and cargo became a total loss to the owners.
    The sole ground of the condemnation was alleged informal-ities in the role d’cquipage, and is set forth in the decree as follows:
    “Considering that from the said papers analyzed and from those of the examination mentioned aboA7e it is shown that the róle d’équipage of which the captain is the bearer has no date of the day or the month on which it was delivered, and is not unvested with any signature whateArer, as results from the verification which was made of it by the delegate at St. Bartholomew, confirmed by the verbal process of the declaration of the award and made before him by the prize master. ”
    It does not appear by direct evidence whether the vessel was captured on her outward voyage from Newbern to Antigua or on her return voyage from Antigua to Newbern. The period of one month between the date of sailing and the date of capture was sufficient to have enabled the vessel to' have made the voyage to Antigua and to have started on her homeward voyage.
    It does appear that another brig of the same class, the Eliza, English, master, sailing on the same voyage, in the same season of the year, June 26, 1798, was captured on her outward voyage July 24; and it also appears that one of the owners of the outward-bound cargo of the North Carolina made sufficient proof of the capture of that cargo to satisfy the United Insurance Company of the city of New York, which company thereupon paid the insurance thereon.
    II. The North Carolina was a duly registered vessel of the United States, of 177 tons burthen; was built in the State of North Carolina in the year 1796. John Devereux owned one-third of said vessel and George Pollok owned two-thirds, both of whom were citizens of the United States.
    III. The cargo of the North Carolina on said voyage, as shown by the manifest, consisted of 5,117 feet of boards, 21,200 white-oak hogshead staves, 6,000 hogshead headings, 40,040 feet scantling, 2,587 feet plank, 35,500 shingles, 39 barrels pork, and 4,250 bushels of indian corn, and was owned by the aforesaid John Devereux and George Pollok in the-same proportions as they owned the vessel.
    IY. The losses by reason of the capture of the North Carolina were as follows:
    The value of the vessel was.,. §4,973. 00
    The vahie of the cargo' was. 3, 679. 00
    The freight earnings for the voyage were. 1,989.00
    Premium of insurance paid by John Devereux. 400. 00
    Amounting in all to. 11,041.00
    V. John Devereux insured his interest in said cargo for said voyage for the sum of $1,600, at a premium cost of $400, with the United Insurance Company of the city of New York, and thereafter the .said company paid the insured the sum of $1,568, being the amount of said policy less the customary abatement of 2 per cent. No insurance appears to have been effected by George Pollok on his interest.
    VI.The losses to the different claimants by reason of said capture were as follows:
    JOHN DEVEREUX.
    One-third of value of vessel. SI, 657. 67
    One-third value of cargo. 1,226. S3
    One-tliird value of freight earnings. 663. 00
    Premium of insurance paid. 400. 00
    Total. 3,947. 00
    Less amount of insurance received . -. 1, 568. 00
    Leaving as net loss. 2, 379. 00
    GEOROE POLLOK.
    Two-thirds value of vessel. S3, 315. 33
    Two-thirds value of cargo. 2,452. 67
    Two-thirds value of freight earnings. 1, 326. 00
    Amounting in all to. 7,094. .00
    THE UNITED INSURANCE COMPANY OF THE CITY OF NEW YORK.
    Amount of insurance paid to John Devereux. $1,568. 00
    VII. The claimants have shown that they represent the parties for whom they respectively appear, and have otherwise proved to the satisfaction of the court that the persons for whoso estates they appear are the same persons who suf-ff'ered Toss through the seizure and condemnation of the North Carolina.
    John N. A. Griswold has shown to the satisfaction of the court that ho has been appointed by an order of the Supreme Court of the State of New York trustee to cany out the purpose of a previous decree made by the court of chancery of that State, dated September 29, 1817, and also to collect and distribute French spoliation claims.
    VIII. By the laws of Franco the jurisdiction of all judicial tribunals over prize cases was taken away and ceased on the 25th December, 1799. After that date, according to the laws of France, prize cases were to be disposed of either by the Consuls, then being the executive head of the French Govern-mont, or, subsequently, by the council of prizes, a bureau of the administrative branch of the Government, and not a judicial body. But notwithstanding the change in the laws of France, civil tribunals in the West Indian possessions of France continued to exercise jurisdiction in prize cases and to condemn American vessels, and among others the brig North Carolina, as before stated. No tribunal, either judicial or administrative, existed in the French West India Islands for the disposition of prize cases other than the tribunals which had previously exercised jurisdiction on such cases, and which continued to exercise jurisdiction of such cases, as above stated.
    IX. Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803, and were not claims growing out of the acts of France allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain concluded on the 22d of February, 1819, and were not allowed in whole or in part under the provisions of the treaty between the United States and France of the 4th of July, 1831.
    The claimants, in their representative capacity, are the owners of said claims, which have never been assigned except as aforesaid; nor does it appear that any of said claims are owned by an insurance company except as aforesaid.
    
      Messrs. Oaréis db Pickett for the claimants.
    
      Mr. Charles W. Russell (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    After elaborate proofs from French documents of the period to show that the French constitution of December, 1799, recognized prize jurisdiction as not judicial but administrative and terminated all judicial competency to try prize cases, Mr. Russell continued:
    This vessel was nominally condemned at Guadeloupe in 1800, but the French Government had thus terminated throughout its dominion the authorhy of tribunals of commerce and civil tribunals and the court of cassation to try these captured vessels and condemn them. That a condemnation by a court without jurisdiction is no condemnation at all, is axiomatic. It is a mere nullity, leaving the title unchanged, rights unaffected, the question of good prize unsettled. No appeal could be taken or was needed. The word “definitively” need not be considered in this case. Nothing, in the eye of the law, had happened. One man had another’s property, and by the proper courts and process could be made to give it up or to hold it to await trial by a competent court only.
    On September 30, 1800, France promised to restore all American “property not yet definitively condemned,” which had been “captured.”
    The North Carolina was such property, having been captured, but not condemned. She came within the language of the promise. The promise did not say “if practicable” or “if convenient.” It was absolute. Vattel, Broom’s Legal Maxims, etc., show that in international and in our municipal law such a promise, if it can not be literally complied with, must be fulfilled in the sense of paying an equivalent. France could do that. That was neither impracticable nor more inconvenient than paying any ordinaiy debt.
    This court recognized the applicability of this principle, as explained by Broom, in its opinion in the Apollo, Walker, saying: “Thus, where the Council of Prizes had ordered property restored, as in the case at bar, and restitution of the property or a money eyui/oalent failed by reason of the insufficiency of the captor, France recognized her liability to make good such loss bjr a money equivalent; and such is the general rule.” (Broom’s Legal Maxims, pp. 217, 248.)
    ■This court has recognized, also, that matters provided for by this promise, whether France complied with it or not, were not disagreed about and treated of in thefsecond article of the treaty of 1800, the retrenchment of which is supposed to have made the United States liable in these cases. In the case of the Jane, snow, the court said:
    “The same illegal acts were being continued; both sides desired them stopped; the property was of a nature to be restored (in most cases at least); if not, it could be paid for. * «• * q>0 £he desired end the modus vwendi of the fourth article was adopted, and every case included in that article is, in our opinion, excluded from the class embraced in the second article. * * * Many of these captures were not restored or paid for, and remained subsisting obligations. on tliepa/rt of France after the treaty of 1800 had been ratified and the ratifications had been exchanged.”
    This seems conclusive that the United States Government is not liable in the case of the North Carolina.
    What defense could France have made in and after 1801, if a demand on behalf of the owners of the North Carolina to have her back, if she could be found, as doubtless she could, or her value in money? Wo know of none. If not, the retrenchment of the second article deprived those owners of no claim of theirs against France. The treaty established their claim, procured a promise to settle it, and yet. now their descendants say the treaty traded off that same claim or demand for a consideration.
    France was certainly estopped to assert that the vessel had been definitively condemned, when her own constitution, followed by laws and decrees, had deprived the court and all judicial courts of jurisdiction to condemn or try at all. Nor would she have taken that absurd position.
    She could not say her promise was a qualified or conditional one.-
    It did, indeed, contain one condition which only made it worse for her by excluding other conditions from being implied, viz: If “ not definitively condemned” property captured was to be restored; if captured and no competent court had transferred title by a prize decree, France promised to restore. Presumably a vessel is not perishable, and most cargoes that. cross the ocean- are not perishable in a few months.
    The principle of Broom-and Vattel can never apply, if not to language of a promise such as that of France. The person promising — even if it bo admitted that he did not intend to embrace the thing in question — is bound by whatever is reached by the broad language he had power to narrow and did not take the precaution to narrow. (Farnum v. JJrooka, 9 Pickering, Mass.)
    And that is a just and necessary principle. Life is too short to listen to people who wish to say that they did not mean what they deliberately said in writing. People are too busy to have to remain always in doubt whether they can rely upon their contracts as made or have the other parties at some far off day prove that they did not mean what they said, but had in their secret breasts a condition or qualification.
    As I have said, there is no question here of appeals or exhausting- remedies, but only of the legal construction of the treaty promise. One can not appeal from a void and null act, more especially when the appellate court is as much deprived of jurisdiction in prize cases as the lower court. Could this Government have justly asked France, on behalf of the owner, to restore or pay for the North Carolina after the ratification of the treaty of '3*800, or not? That is the sole question. If yea, then ratifying- of the treaty did not destroy that diplomatic demand or take it for a public use.
    On the 29th of August, 1800, within a month of France’s promise, a so-called prize court, which had ceased to exist as a prize court, pronounced a decree which was a mere nullity. It was a nullity to the captor. He had the same duty to perform — to keep the vessel for trial by a competent prize court— as though there had been no decree. It was a nullity for the captured, who was bound to resort to other courts and remedies to safeguard his rights, if necessary. Such was their duty before the treaty. But what the captor did or omitted, or the captured did or omitted,, is immaterial. That does not affect in any way the broad promise of France to restore this property, upon finding simply that it was captured and not condemned. Nor is it material whether the owner later asked her to do so, through the Council of Prizes or otherwise, or whether she did so, if applied to, or did not. The diligence of the owner was not made a condition of the promise made by France, nor did the United States become liable for every claim France failed to pay.
    "What we are concerned with is, of coui’se, the liability of the United States, based solely on the sacrificing or trading-off of claims “disagreed” about and postponed by the second article. The capture of the North Carolina was a matter agreed about and stipulated about.
    A claim on account of the North Carolina was rather established than sacrificed. It was expressly saved and -a promise of its settlement procured from France.
    
      We submit that it is wrong in principle and also unjust to charge the United States with an indebtedness representing the value of the North Carolina. France had absolutely no defense to offer in 1801 to a demand for the value of the North Carolina, if that vessel could not (as it probably could) be found and restored. So far from defending herself bj7 refening to the treaty of 1800, that very treaty contained her express promise to comply with such a demand. Therefore the United States did not become liable for the value of the North Carolina by sacrificing such demand in ratifying that treatj7.
   Nott, Ch. J.,

delivered the opinion of the court:

On the 25th December, 1799, when the French constitution of that year went into effect, the French Government abolished all prize courts; that is to say, the jurisdiction of prize cases was taken away from judicial tribunals. For a few years France had been trying provisionally the English and American system of prize courts wherein the legal rights of captors and owners are judicially passed upon according to the principles of international law or the obligations of treaties. With the doing away of that jurisdiction, the disposition of prize cases was vested in the political branch of the French Government. The Consuls themselves, with their administrative subordinates, constituted the only existing authorities in such cases, until the establishment of the Council of Prizes. The Council of Prizes acted under instruction of the Government, and when instructed made its decisions accordingly, ■and was, in effect, nothing more than an administrative bureau of the Government. The counsel for the United States has presented to the court a most elaborate argument upon this subject, and the court has no reason to doubt the accuracy of the laws, decrees, and orders therein contained, and, indeed, adopts its conclusion.

On the 27th of July, 1800, the American brig North Carolina, West, master, while peacefully pursuing a commercial voyage from Newbern to Antigua, laden with lumber, pork, and corn, was unlawfully seized upon the high sea by the French privateer La Mars and taken into the Swedish island of St. Bartholomew, where she with her cargo was subsequently sold by the captors. On the 29th of August, 1800, the French tribunal of commerce and prizes at Basse Terre, Guadeloupe, unlawfully condemned the vessel and cargo, confirming the capture, and ordering the sale of the vessel.

If this were a proceeding against France before an international commission the question would be asked, What is the defense of France for this unlawful seizure and condemnation ?

The counsel for the United States answers that by Article IV of the treaty of 1800 (8 Stat. L., 178) “property captured, and not yet definitively condemned,” “shall be mutually restored;” that the tribunal of commerce and prizes at Basse Terre being without jurisdiction, the vessel and cargo were not “definitively condemned;” that the owners were thereby remitted to the remedy of having the vessel and cargo “restored.”

To the court it seems plain that by reasonable implication the fourth article of the treaty was intended to apply only to cases where the property could be restored. If a vessel was still within reach of the administrative arm of the French Government, France would hand her back to the owners, thereby extinguishing their demand, or at least greatly reducing the amount of it. If a vessel could not bo restored; if she had been destroyed, or lost, or sold, if the res had ceased to exist, the article of the treaty, unexecuted, no more extinguished a legal demand for indemnity than the giving of a note without paying it extinguishes the original indebtedness of an ordinary defendant.

If this court were a French tribunal, administering French law, it might perhaps be held that that law was obligatory and that this technical defense must be sustained; for an alien who voluntarily goes into French territory is bound to know the laws of France. But an American shipmaster upon the high seas is bound to know nothing more than the treaty into which his Goverment may have entered, and the general principles and obligations of international law. When the master of this vessel found his vessel condemned by a French court exercising jurisdiction of prize cases he might, or might not, according to his light, have objected to the jurisdiction. But he was not bound to know that the court which France apparently appointed to condemn his vessel was without jurisdiction. For the French Government to allow its courts to make condemnations which were not condemnations was but an aggravation of the injury done. Franco allowed these courts to act, and these courts continued to condemn American vessels. France was estopped from questioning their jurisdiction.

It is a' well-known rule in American and English prize courts that the rights of the owners of a vessel captured on the high seas are to be carefully guarded and maintained. Accordingly, it is required that the hatches be sealed, that the master remain upon the vessel, and that he be given an opportunity of being heard before the prize court which condemns his vessel. In this case none of these things appear on the face of the decree. Its recitals exclude the idea of the master having had an opportunity to assert his owners’ rights. Nothing appears, except that upon the report of a consular agent in a Swedish port the vessel and cargo were condemned. It was not the business of the American owners to carry the case before the Council of Prizes in order that the vessel might be condemned according to French law; thej^ -were not free agents in the matter; 'they were not bound to appear before the Council of Prizes and defend a case which the captors had not instituted there, neither were they bound to seek the French Government through the Council of Prizes, and go through the form of asking that their vessel be restored under the fourth article of the treaty after it had been condemned and sold and there was no material thing to be restored.

Apart from the treaty of 1800, it is the duty of the owners of a captured vessel to exhaust their legal remedy against the captors before they can assert a liability on the part of the belligerent Government whose privateers have seized their goods. But it is also the duty of the belligerent Government to furnish them with a tribunal in which they can exhaust their remedy. We have heretofore held with regard to these West Indian captures of small American vessels that the masters were not bound to travel round the world in search of an appellate jurisdiction. They were bound to exhaust their reüiedy at whatever place the vessel was taken and condemned, and nothing more. If France did not provide appellate courts in distant places to correct the errors of inferior tribunals it was her responsibility. The American owners •could not be compelled to do a grossly unreasonable thing for the protection of the French Government. The court now adheres to those decisions.

The order, of the court is that the conclusions heretofore filed are amended by adding thereto “finding vm,” nowfiled; and the defendant’s motion for a new trial is overruled; and the conclusions of the court will be reported to Congress with a copy of this opinion.

This order is extended and will apply to the cases of the schooner Abigail, Perkins, master, and the brig Dove, Goodhue, master.  