
    THE BRIG MARIA. J. HAMILTON SHAPLEY, Administrator, v. THE UNITED STATES. JAMES W. EMERY, Administrator, v. THE SAME. ANNA L. GROSVENOR, Administrator, v. THE SAME.
    [French Spoliations,
    1570, 1575, 3153.
    Decided December 7, 1903.]
    
      On the Proofs.
    
    It appears from competent evidence that Wilson was the owner of two-eighths of the vessel at one time; that subsequently he disclaimed owning more than one-eighth; that he had chartered one-eighth to Shapley; that after confiscation of the vessel Shapley paid Wilson for the loss of one-eighth; that Wilson is now claiming only one-eighth. It also appears that the value of the outward cargo was $4,000; but there is no evidence as to the value of the homeward cargo captured, though there is evidence of a cargo being on board.
    I.The charter of one-eighth interest in the vessel gave the charterer a special interest in the vessel as against the original owner; and the original owner disclaiming as to this item and it appearing that the charterer paid insurance to the original owner after the loss of the vessel, he is entitled to indemnity.
    II.The master’s possession of a vessel is for the benefit of the charterer as much as for the original owner.
    III. Ex parte affidavits made forty years after the event can not be regarded as ancient documents.
    IV. In the absence of specific proof, a presumption arises that the cargo on board was rhe equivalent of the carrying capacity of the vessel, and the burden is upon the defendants to show against the claim for freight earnings that the cargo was less.
    Y. It can not be assumed that the proceeds of the outward-bound cargo were invested in the return cargo. Where there is no evidence by which the value of the return cargo can be estimated there can be no recovery.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The brig Maria, Edward Watts, master, sailed on a commercial voyage on or about the 20th day of September, 1798, bound from Tobago to Portsmouth, N. H. While peacefully pursuing said voyage the Maria was seized on the high seas on or about the 25th day of September, 1798, by the French privateer La Kevanche,' Capt.' Denis Francois Liebbe, and carried into Port de la Liberté, and on the 30th day of September, 1798, condemned by the tribunal of prizes sitting at Basse Terre, Guadeloupe, whereby both vessel and cargo became a total loss to the owners thereof.
    The grounds of condemnation as set forth in the decree were as follows:
    “ Cleared for Surinam and went to Tobago. That the róle d’équipage was not in good form. That she had neither invoice nor bills of lading.”
    II. The Maria was a duly registered vessel of the United States, of 77|f tons burden; was built in the State of Massachusetts in the year 1791 and was registered a short time before the sailing by Peter Wilson as owner of two-eighths; by Joseph Lowe of three-eighths, and by Thomas Leigh of three-eighths, all of whom were citizens of the United States. Before the vessel sailed, however, Peter Wilson, the owner of two-eighths of the said vessel, for a consideration, chartered one-eighth of the same to James Shapley, a citizen of the United States, residing at Portsmouth, N. H., and thereupon said Shapley insured this one-eighth part of the brig Maria, and subsequent to the condemnation Shapley collected for the loss of the eighth part of the brig so chartered to him and paid the amount thereof to the original owner, Peter Wilson, aforesaid.
    III. At the time of the capture the Maria had a mixed cargo on board consisting of rum, molasses, and old iron. But it does not appear what quantity of rum, or what quantity of molasses, or what quantity of old iron was on board. No proof of value was made before the prize court of the cargo, and no estimate of value since that time anywhere appears by any competent evidence in the record.
    
      IV. The loss by reason of the seizure and condemnation of the Maria, so far as is shown by the evidence, was as follows:
    The value of the vessel.„•.$2,340. 00
    The freight earnings. 1,298. 66
    Total... 3,638.66
    Y. The losses to the different claimants by reason of said capture and condemnation were as follows:
    Joseph Lowe, three-eighths value of vessel and freight.$1, 364. 50'
    Thomas Leigh, three-eighths value of vessel and freight-..._ 1, 364. 50
    Peter Wilson, one-eighth value of vessel and freight. 454. 83
    James Shapley, one-eighth value of the vessel and freight. 454. 83
    
      Mr. John W. Butterfield and Messrs. Curtis c& Piehett for the claimants.
    
      Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

The brig Maria, Watts, master, sailed on a commercial voyage about September 20, 1798, bound from Tobago to Portsmouth, N. H. While peacefully pursuing her voyage, the brig was taken on the high seas by the French privateer La Revanche and carried into Port de la Liberté and condemned, with everything on board, by the'tribunal of prizes sitting at Basse Terre, Guadeloupe.

The findings establish the capture and confiscation of the vessel and whatever cargo there was and the illegal nature of the seizure and decree of the prize court. The resulting conclusions of law entitle the owners to the proven value of the brig.

• The ownership of seven-eighths of the vessel is clearly proven. The remaining one-eighth interest is alleged by the petitioners to have been in one James Shapley, under a charter derived from one of the original owners under circumstances, which, in effect, it is contended, transferred the ownership of this fractional interest to Shapley.

It appears that before the vessel sailed one Peter Wilson was the owner of two-eighths of the brig. According to the certificate of registry, Wilson, Lowe, and Leigh were the sole owners of the ship. In the proceedings preliminary to the decree after the capture the master claimed ownership of both vessel and cargo in himself, Lowe, Leigh, and Wilson, but we are unable to find that the master was a part owner.

Many years after the loss of the vessel Wilson disclaimed more than one-eighth interest in the brig, according to an affidavit in the record, which shows that before the sailing of the vessel Wilson 'had chartered an eighth interest to Shapley, who in turn insured the same in Wilson’s favor. After the confiscation Shapley paid Wilson for the loss of the eighth interest so chartered, and his next of kin now insist that he is entitled to the allowance which otherwise would go to Wilson.

The subsequent affidavit made bjr Wilson is incompetent to establish anything in his favor; but treating it as a declaration against interest on his part, we think its statements are sufficient to establish Shapley’s equitable right to the eighth interest chartered to him by the owner, and as Wilson is not claiming the amount now claimed by Shapley’s next of kin, they are entitled to a recovery of the amount of the loss under the charter.

In the case at bar the charter of an eighth interest for a consideration gave Shapley a special interest in the vessel as against the original owner of that interest. The master’s possession was for the use and benefit of the chartered right as much as for the original owner from whom the right was acquired. To all intents and purposes Shapley was as much the owner of one-eighth interest as Wilson was of the other eighth, and, the original owner disclaiming as to this eighth, the award for the loss follows accordingly to the charterer for that much.

The claim for the cargo presents a different question.

It is assumed that because the outward cargo amounted to $4,000 worth of goods the homeward cargo was the result of the investment of the proceeds with the freight taken out; but there is no proof of this. The affidavit, made nearly forty years after the occurrence, by one of the alleged owners is not competent to establish the application of the proceeds of the outward-bound freight to the purchase of the homeward-bound cargo. This affidavit, like a subsequent memorial, not being contemporaneous, could not be considered as evidence when filed and has not become so by the lapse of time. (The Ship Parkman, 35 C. Cls. R., 406.) Papers executed twenty-two years after the occurrence of the matters to which they are supposed to relate can not be considered as ancient documents. (The Brig Juno, 36 C. Cls. R., 239.) The person making the affidavit was not present when the ship was seized or condemned, and on its face there is nothing to show that the affi-ant had any personal knowledge of a cargo. Even if the affidavit were admissible, the court could attach no value to its statements.

There was undoubtedly some kind of a cargo. The evidence of the master before the prize court shows it to have consisted of rum, molasses, and old iron. In the absence of more specific proof the presumption arises that the cargo was the equivalent of the carrying capacity of the vessel. It devolves upon the defendants to show against the claim for freight earnings in this state of affairs that the measure of the quantity of stuff on board was less than the tonnage of the brig. This not having been done, the claim for the freight earnings of the brig is allowed.

The claim for the value of the cargo is void for uncertainty. No proof that the cargo, whatever it was, had any value has been offered. None has been suggested beyond that indicated in the contention that the proceeds of the outward-bound cargo were invested in the freight of the return voyage. As this contention is not accepted, the claim for the value of the cargo must be rejected. Without some criterion from the competent evidence in the case to judge of the matter, we are unable to say that the freight was certainly valuable. Presumably it was, but the court can not enter the domain of conjecture to determine it.

The conclusions of the court will be reported to Congress.  