
    THE BRIG VENUS. JOHN S. COLE, Administrator, v. THE UNITED STATES.
    [French Spoliations,
    1066.
    Decided January 18, 1892.]
    
      On the Proofs.
    
    The Yenns is captured by a French privateer in 1796 and condemned, because she does not have on board a passport and manifest of her return cargo.
    I.Under the Treaty of Amity a/nd, Commerce 1788 (8 Stat. L., pp. 12, 26, arts. 25, 27), an American ship upon the high seas having on board the passport and manifest prescribed by the treaty was free from search.
    II.The absence of the passport and manifest did not render an American merchantman liable to condemnation; it simply left her vfithout the benefits of the treaty, and subject to the rules and requirements of international law.
    III.In the last century, as soon as the belligerent ascertained the nationality of a neutral from an inspection of her register and the innocence of her cargo by seat ch, the right of .detention was at an end.
    
      
      The Reporters’ statement of tbe ease:
    Tbe following are tbe facts of tbe ease as found by tbe court:
    I. Tbe brig Yenus cleared from tbe port of Wells, in Massachusetts (now Maine) on tbe lOtb July, 1796, for Jeremie. Not finding a market there, she sailed for Port au Prince on tbe 8th August, 1796, where tbe cargo was sold, and tbe proceeds invested in a return cargo, consisting exclusively of molasses, laden with which she sailed from Port au Prince on tbe 10th September, bound for her home port. On the 12th September, 1796, she was captured by tbe French privateer La Republique Triomphante, and carried into tbe port of Gonaives. Subsequently tbe commission delegated by tbe French Government to tbe Windward Islands, sitting at Gape Franqois, on tbe 24th September, 1796, as a prize court, condemned tbe vessel as good prize for tbe benefit of her captors upon tbe following-grounds, as set forth in such decree:
    “Liberty. Equality.
    “In the name oe the French Republic:
    “At tbe cape, tbe third Yendémiaire, 5th year of tbe French Republic, one and indivisible.
    “The commission delegated by tbe French Government to tbe Windward Islands having considered tbe protest (proeés verbal) made by citizen Painciller, prize master of the bark La Republique Triomphante, of tbe prize made on tbe twenty-fifth Fructidor, by tbe said vessel, Captain Bouilhar, of tbe American brig tbe Yenus, commanded by John Harman, of Wells, and having just left tbe Port Au Prince;
    “Having examined tbe register of tbe vessel purporting the title of American property of tbe brig Yenus, of Wells, of Massachusetts, owned by John Storer, merchant at said Wells;
    “Having examined tbe ship’s list of tbe said brig, and tbe description of tbe men who compose it, signed by a justice of peace of York;
    “Having seen tbe bill of sale passed between Captain John Harman to James Donnell, dated Port au Prince tbe eighteenth of August, relative to tbe sale of tbe cargo of tbe said brig;
    “ Having seen an account of six hogsheads of molasses bought at Port au Prince from Duperrét & Lefevre, and a permission from Port au Prince for shipping provisions;
    “Having seen tbe protest respecting tbe laying of the seals on the said ship, and tbe interrogatory which took place before tbe justice of peace at Gonaives of tbe captain of tbe brig Venus, also of ber mate and a sailor of bis crew, tbe result of which interrogatory is that tbe captain aforesaid, John Har-man, bas not provided bimself with a passport or sea letter, nor with tbe invoice of tbe cargo, wbicb be bas taken at Port au Prince; and whereas tbe treaty of alliance and commerce passedbetween France and tbe United States declares expressly in tbe articles 25tb and 27tb, “In case one of tbe two parties should be engaged in a war, tbe ship and vessels belonging to tbe subjects or people of tbe other allied party shall be provided with sea letters or passports,” etc.; a little further, “They ought to be provided, besides, with bills of lading and invoices ;” finally, in tbe 27th article, “Every ship of war or privateer meeting a vessel belonging to one of tbe two parties on tbe coasts bas tbe right of requiring an exhibition of tbe papers above mentioned;”
    “ Considering that tbe American brig Venus being unprovided with passports or sea letters in tbe forms prescribed by tbe twenty-fifth article of tbe above-mentioned treaty, and also with tbe invoices or bills of lading wbicb it requires ;
    “ Considering, besides, that the choice made by Capt. John Harman of going with bis cargo to Jeremie and Port au Prince, added to tbe foregoing circumstances, are sufficient reasons to induce us to consider bis vessel as English property, and as such subject to tbe confiscation pronounced against the naval property of tbe enemies of tbe French Republic wbicb may be arrested by tbe cruisers of French republicans:
    “ Tbe commission resolves that tbe American brig Venus, commanded by Captain John Harman, is, as well as ber cargo, good prize, and that both these shall be sold, tbe proceeds therefrom to be distributed to tbe owners and to tbe crew of tbe captors of the bark La Republique Triomphante, according to tbe terms agreed among themselves.
    “Signed in tbe register of protests Soutbonax, president; Girard, Raymond, Leblanc, commissioners; Pascal, secretary-general.”
    II. Tbe Venus at the time of ber capture bad on board all usual and proper papers except a passport or sea letter and an invoice of tbe cargo wbicb she had taken aboard at Port au Prince. Tbe reason why she did not have on board a passport was, that on ber owner applying for it in July before ber voyage began, at tbe office of tbe district of Biddeford and Pep-perelborougb (that being tbe office where bis vessel’s clearance papers were issued), the officer in charge furnished him with all ber papers except a passport, as to wbicb he said that it was not usually called for and that be bad not one in tbe office. Tbe reason why tbe vessel did not have on board an invoice of ber borne cargo was because it was not the usage of American vessels trading as sbe did to obtain an invoice. But it does not appear that either of these reasons was made known to the prize court. The usage above referred to is narrated and described in the following certificates on file in the Department of State:
    “We, the subscribers, merchants and citizens of Bo.ston, who have been conversant with and engaged in the trade from this State to the West Indies, do hereby certify whom it may concern, that the consignation of the vessels and cargoes being given almost universally to the captains, the owners furnish them with no documents relative to their voyages, but their general orders, as to the objects of them, and the invoices of their cargoes from hence; no bills of lading being taken for such cargoes, but receipts upon the copies of the invoices; nor is it usual, for the same reason, for the captains to have any bills of lading for their return cargoes from the West Indies, nor any other documents except the invoice of the cargo on board, made out by the captain himself, and ins account of sales of the outward cargo, and his account current with his owners.
    “Boston, March 15th, ’97.
    “Stephen Higginson.
    “John C. Jones.
    “ James Pebkins.
    “ Mung-o Mackey.
    “Thomas Demibe.”
    III. The Yenus was a duly registered vessel, measuring 120 tons, built at Wells in 1795, and was owned by John Storer, of that port.
    IY. The cargo of the Yenus at the time of her capture consisted of forty-four hogsheads of molasses, the property of the owner of the vessel, John Storer.
    Y. The losses caused by her capture were as follows:
    The value of the vessel was. $5,400
    The freight earnings of the vessel for the voyage, f were. 2, 000
    The value of the cargo was. 3,168
    The total amount of losses was. 10,568
    There was no insurance.
    YI. The claimant, John S. Cole, has produced letters of administration and has otherwise proved to the satisfaction of the court that the person whose estate he has administered was the same person who suffered loss through the capture of the Yenus, as set forth in the preceding findings, and that be was a citizen of the United States.
    
      Mr. William JS. Marie for the claimant.
    
      Mr. Alexander 0. Moore for the defendants.
   Nott, J.,

delivered the opinion of the court:

This case was among the first of the French spoliation cases which came before the court, having been submitted in June, 1888. On the 31st December following the court, in view of the novel questions and large amounts involved in this branch of its jurisdiction and out of abundant caution, remanded the case for argument upon the facts found. For reasons not knowfi to the court the hearing has been postponed until the present time, January, 1892.

Since the case was sent back for argument the legal question involved has been deliberately considered in many other cases, and repeatedly decided in favor of the claimants. The principle which governs it is now so well settled, that no extended discussion is needed.

The twenty-fifth article of the Treaty of Amity and Commerce 1778 (8 Stat. L., 12, 26), is in these words:

“To the end that all manner of dissentions and quarrels may be avoided and prevented on one side and the other, it is agreed that in case either of the parties hereto should be engaged in war, the ships and vessels belonging., to the subjects or people of the other ally must be furnished with sea letters or passports, expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship, that it may appear thereby that the ship really and truly belongs to the subjects of one of the parties, which passport shall be made out and granted according to the form annexed to this treaty; they shall likewise be recalled every year; that is, if the ship happens to return home within the space of a year. It is likewise agreed that such ships, being laden, are to be provided not only with passports as above mentioned, but also with certificates containing the several particulars of the cargo, the place whence the ship sailed, and whither she is bound, that so it may be known whether any forbidden or contraband goods be on board the same; which certificates shall be made out by the officers of the place whence the ship set sail in the accustomed form; and if any one shall think it fit or advisable to express in the said certificates the person to whom the goods on board belong he may freely do so.”

It is manifest that tlie purpose of a treaty of amity and commerce between two friendly maritime powers must bave been to mitigate, and not to augment, the severities of international law. The article now under consideration, moreover, expressly declares that it has been adopted “to the end that all manner of dissensions and quarrels may be avoided and prevented on one side and the other.” The article then provides that when either power is engaged in war the ships of the other shall carry a sea letter or passport and a certificate or manifest. The former is to be not more than one year old, and the latter to be issued “ by the officers of the place whence the ship set sail,” and to contain “the several particulars of the cargo.”

Armed with these two instruments, a ship upon the high seas, according to the twenty-seventh article, was free from search. A ship of war or privateer might send her “boats aboard the merchant ship,” but when the latter had exhibited ber “passport concerning the property of the ship,” she should “be free and at liberty to pursue her voyage.”

The absence of these two papers, the sea letter or passport and the certificate or manifest, did not not render the merchant vessel liable to condemnation; it simply left her without the benefits of the twenty-seventh article, and in this particular subject to the rules and requirements of international law.

In the present ease the Venus did not carry the two prescribed papers, the passport and manifest, but she did have on board her register and crew list. The absence of the former papers may have rendered her liable to detention and search, but did not afford the slightest ground for capture and condemnation. As soon as the searching vessel ascertained the nationality of the Venus from an inspection of her register, and perhaps the innocence of her cargo by actual search, the right of detention was at an end, and the vessel free to pursue her voyage. For the captors then to carry her into a French port, and for a French tribunal to assume a right of condemnation, was clearly unauthorized by the terms of the treaty and in violation of our maritime rights as regulated by international law.

The order of the court is that the findings of fact, together with the conclusions of law now filed, and the opinion of the court, be reported to Congress.  