
    THE SLOOP “FRIENDSHIP.” EDWARD D. LAWRENCE AND ISAAC H. LAWRENCE, ADMINISTRATORS OF BENJAMIN WYATT, v. THE UNITED STATES. FRANCIS A. JEWETT, ADMINISTRATOR OF JAMES PRINCE, v. THE UNITED STATES. HENRY RUSSELL PERKINS, RECEIVER OF THE NEWBURYPORT ASSOCIATION OF UNDERWRITERS, v. THE UNITED STATES. HENRY RUSSELL PERKINS, RECEIVER OF THE NEWBURYPORT ASSOCIATION OF UNDERWRITERS, v. THE UNITED STATES. HENRY RUSSELL PERKINS, RECEIVER OF THE NEWBURYPORT ASSOCIATION OF UNDERWRITERS, v. THE UNITED STATES. FRANKLIN A. WILSON, ADMINISTRATOR OF JOHN PEARSON, v. THE UNITED STATES.
    [French Spoliations 2352, 3875, 4275, 4291, 4296, 4348.
    Decided on January 5, 1914.]
    
      On the Proofs.
    
    The sloop Friendship, a duly registered vessel of the United States, sailed on a commercial voyage from Newburyport, Mass., in the early part of 1800, bound for Barbados, Tobago, and while on this voyage was seized by a French privateer. On July 10, 1800, the vessel and cargo were condemned. The insurance carried on the vessel and cargo was paid.
    I.The court has frequently held in the class of cases under this jurisdiction that policies of insurance merely are insufficient to establish ownership of the vessel, and that the circumstances and the solemn character of the register of the vessel must govern, and the findings must show everything necessary for an understanding of the case in Congress.
    II.The right of a receiver to recover has never been established by the court.
    III.Where the findings do not establish the incorporation of an association of underwriters, nor a partnership among the people whom the receiver professes to represent, the court is unable to declare any rule by which an individual can claim through an unincorporated body of men. The same is true where there is wanting proof of the elements of a partnership.
    
      
      The Reporter's statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The sloop Friendship, whereof George Rapall was then master, sailed on a commercial voyage iron Newburyport, Mass., in the early part of 1800, bound for Barbados, or Tobago. While peacefully pursuing said voyage she was seized on the high seas by the French privateer La Bijou, Capt. Collar. On July 10, 1800, the vessel and cargo were condemned by the tribunal of commerce and prizes sitting at Basseterre, Guadeloupe, on the following grounds: That the affidavit at the bottom of the sea letter was not signed by the officer of the marine, as required; that consequently it is in contravention of the passport, which appears more manifest, as it was issued for the island of Barbados; that the destination of Tobago establishes that there were reasons which caused the master to change the place of destination; that there was no róle d’equipage, but only a simple agreement with the crew, and the signatures were not formally authenticated.
    II. The Friendship was a duly registered vessel of the United States of 92 52/95 tons burthen, built at Bath, Me., in the year 1783, and was owned solely by Benjamin. Wyatt, a citizen of the United States. The register carried by this vessel at the time of capture was dated May 23, 1800.
    III. A cargo was on board the Friendship at the time of capture, but its ownership, character, and value are not disclosed.
    IV. The losses by reason of the capture and condemnation of the Friendship, as far as presented to the court, are as follows:
    Value of vessel. $1> 800.00
    Freight earnings. 1,533.00
    Premium of insurance paid. 132.00
    3,465.00
    Deduct insurance received. 600.00
    Net loss.............. 2,865.00
    
      Y. On May 26, 1800, said Benjamin Wyatt procurred insurance on the vessel from the Newburyport Association of Underwriters in the sum of $600, paying therefor a premium of 22 per cent. On December 4, 1800, said association paid the insured sum of $600, being in full for a total loss by reason of the premises.
    YI. On June 18, 1800, George Kapall, the master of the Friendship, procured insurance on his effects on board from the Newburyport Association of Underwriters in the sum of $333.33, paying therefor a premium of 22 per cent. Thereafter, on December 4, 1800, said association paid the insured the sum of $333.33, being in full for a total loss by reason of the premises.
    - It does not appear what effects, if any, the master had on board this vessel at the time of capture.
    VII. On June 19,1800, one Eleazer Johnson effected insurance in the sum of $600 on vessel and $400 on cargo in the office of the Newburyport Association of Underwriters, paying therefor a premium of 22 per cent. Thereafter, on December 9, 1800, said association paid the insured the sum of $1,000, being in full for a total loss by reason of the premises.
    It is not established by competent evidence that said Eleazer Johnson owned any part of this vessel or cargo.
    VIII. On July 12, 1800, one Joseph Toppan effected in the office of John Pearson, jr., of Newburyport, insurance on the cargo in the sum of $500, paying therefor a premium of 22 per cent, said policy being underwritten by the following: John Pearson, jr., $100; James Prince, $400.
    Thereafter, on December 2, 1800, said Pearson paid the insured the sum of $500, being in full for a total loss by reason of the premises.
    It is not established by competent evidence that said Joseph Toppan was the owner of cargo on board this vessel.
    IX. The claim of the estate of Joseph Toppan was not filed until January 21, 1904, at which time it was attempted to present said claim to the court by intervention to petition No. 2352.
    X. The legal status of the Newburyport Association of Underwriters is not determined by the proof, and the court is therefore unable to make a finding in favor of any members of the association for the want of claim therefor by any such member, and is likewise unable to make a finding in favor of the alleged receiver of the said Newburyport Association of Underwriters.
    The evidence does not establish to the satisfaction of the court that the Newburyport Association of Underwriters was ever incorporated or that it was a partnership.
    The claimants have produced letters of administration on the estates of the parties for whom they appear, and have otherwise proved to the satisfaction of the court that the persons for whose estates they have filed claims are in fact the same persons who suffered loss by reason of the seizure and condemnation of the sloop Friendship, as set forth in the preceding findings.
    Said claims were not embraced in the convention between the United States and the Kepublic of France concluded on the 30th of April, 1803. They 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.
    CONCLUSIONS OP LAW.
    The court decides as conclusions of law that said seizure and condemnation were illegal, and the owners and insurers had valid claims of indemnity therefor upon the French Government prior to the ratification of the convention between the United States and the French Kepublic concluded on the 30th day of September, 1800; that said claims were relinquished to France by the Government of the United States by said treaty in part consideration of the relinquishment of certain national claims of France against the United States; and that the claimants are entitled to the following sum from the United States:
    Edward D. Lawrence and Isaac H. Lawrence, administra tors of Benjamin Wyatt, two thousand eight hundred and sixty five dollars ($2,865).
    
      The insurance paid herein on the effects of the master and the cargo is not recoverable for the reasons set forth in Findings III, YI, VII, and VIII.
    The claim of Charles C. Donnell, administrator of Joseph Toppan, is not properly before the court for the reason set forth in Finding IX.
    No allowance is made to Henry Russell Perkins, receiver of the Newburyport Association, for the reason set forth in Finding X.
    
      Mr. O. W. Olagett and Mr. J. W. Butterfield for the plaintiffs.
    
      Mr. John W. Trainer, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Howry, Judge,

delivered the opinion of the court:

The seizure and condemnation of the sloop were illegal acts, and liability must follow as to the vessel. The nature, amount, and value of the cargo are not proven.

The issues between the parties relate (1) to the ownership of the vessel, and (2) as to the right of alleged individual underwriters to recover through a receiver of an unincorporated body or association of men and who, without a charter, have likewise not established relations as partners.

As to the véssel, defendants’ contention is based upon the fact that a third person, who does not appear, either from the register or otherwise by the record, to have been interested, took out insurance upon the sloop, the register owner meantime insuring for a like amount of one-third of the sloop.

The findings disclose that the register was taken out about the date of the sailing of the ship and that this register named Benjamin Wyatt as the only owner. Thereafter, one Johnson took out insurance for $600 on the vessel and collected the amount. Before that time, however (only three days before sailing), Benjamin Wyatt took out insurance on one- • third of the vessel in the same sum for which Johnson subsequently insured and collected. There is no proof that the registered owners had knowledge of the Johnson insurance. The argument is made that the fact that a person who does not otherwise appear to have any interest in the vessel took out insurance does not prove that such person owned an interest in the vessel; that he is a mere volunteer; and that as against the record owner there must have been something more than his action in obtaining insurance to support his claim. It is contended by the conflicting interest that the fact that Benjamin Wyatt only insured one-third of the vessel does not prove that he was not the sole owner of the vessel, but does prove that he only desired to insure his interest of one-third.

An examination of the dates of the various transactions as they appear discloses that the register was obtained May 23, 1800, and that three days thereafter Wyatt took out his insurance on one-third of the vessel in the sum of $600. Johnson took out his insurance June 19, 1800, for $600 on the sloop, and having collected the money when the ship was lost to the owner or owners, he either defrauded the insurance company or sustained a loss. It is possible that in taking out the insurance Johnson did so for the benefit of the register owner. This being mere conjecture, however, we can not account for his action. At all events we have a case where the effort appears to be made to overcome the record effect of the register.

In passing upon these claims the court has frequently held that policies of insurance merely are insufficient to establish ownership of a vessel. On this point one of the parties claiming as against another interest argues that the court has continuously and consistently held this to be the rule. Whether the court has been absolutely consistent on this proposition or not we are unable, in the mass of litigation in these cases involving conflicting claims, to say, but we repeat that the court has frequently held that policies of insurance, generally speaking, are not enough to prove ownership of a vessel. Considering the circumstances and the solemn character of a register where trouble ensues the court is of opinion that the register must govern. Especially does this seem to be the most reasonable view to take of the case, as it appears that the third person took out his insurance on the vessel after the sloop had sailed for her destination.

As to the matter of title: One of the claimants contends that the court should leave the question of title to be decided if and when an appropriation is made. On the other hand, defendants insist that we should find the facts in reference to the insurance from which we must necessarily decide the matter of title before any appropriation can properly be made for a debatable interest.

We think we ought to show everything necessary for an understanding of the case in Congress. This brings us to the matter of the legal status of the Newburyport Association of Underwriters.

The court’s conclusion as to the conflicting rights of the parties is that no individual underwriter claiming through this body is entitled to an award for the want of proper identification of interest. The representatives of the individuals named as losers — that is, the representatives of the parties claiming under the association named and operating through a receiver — are not entitled to an award. Individual losses are established only by and through the receiver of a defunct organization. In the first place, the right of a receiver to recover has never yet been established by the court according to the case of the Dove, Goodhue (H. R. Doc. 429, 56th Cong., 2d sess.), and other cases. Next, the findings have not established the incorporation of the so-called Newburyport Association of Underwriters. Neither do the findings establish a partnership among the people whom this receiver professes to represent. The court is therefore unable to declare any rule by which an individual can claim through an unincorporated body of men calling themselves an association where, too, there is wanting proof of the elements of a partnership.

The value of the vessel, together with its freight earnings and premium of insurance paid totals $3,465. Deducting the $600, the amount of insurance received, the net loss to Benjamin Wyatt was $2,865, and the award must be for that amount. Accordingly, the findings herein are directed to be transmitted to Congress, together with a copy of this opinion.  