
    BRIG SALLY. JAMES F. ADAMS, Administrator, v. THE UNITED STATES. CHARLES E. COTTING, Administrator, v. THE SAME.
    
      On the Proofs.
    
    According to the register the vessel is owned by the firm of Adams and Loring (the firm consisting of Seth Adams and Joseph Loring, jr.) and by Joshua Loring. The court finds the ultimate fact, from the registry record, that the firm owned one half and Joshua Loring the other half. The petition filed within the jurisdictional period sets up only a partnership title, alleging that the vessel was owned by the firm, consisting of Adams and the two Lorings, and that each owned one-third. It now appears that Joshua Loring was not a member of the firm and that no petition was filed for him during the jurisdictional period to recover his personal one-half interest in the vessel. The actual value of the freight earnings on the voyage appears.
    I. Where the question is whether a vessel was owned by three persons as members of a firm or by the firm and one of the three personally, the record title must control; and if it apjiears that one of the three was not a member of the firm, it must be presumed that he owned one half of the vessel and the firm the other half.
    
      II. Rule 26 allowing parties having a common interest in a French spoliation case to unite in one petition does not extend to a personal owner if the original petition sets up only a partnership title. And if the personal owner did not file his own petition during the jurisdictional period he can not subsequently come in and set up his adverse personal title under and by virtue of the partnership petition. Whether rule 26 relates to underwriters exclusively .and does not extend to vessel owners, query.
    
    III. The title to a vessel, unless shown to be otherwise, is that of tenancy in common, and each owner holds in severalty. But where it appears that a partnership consisting of two of the three owners of the vessel are the exclusive owners of the cargo, it must he regarded as establishing the presumption ' that the third owner owned half of the vessel personally, and that the interest of the firm in the vessel was only one-half.
    IY. The two-thirds rule of freight earnings on gross tonnage is an arbitrary rule, and it will not be extended to a vessel where the actual freight is known and the freight earnings can be computed.
    
      The Reporters' statement of. the case:
    The following are the facts of the case as found by the court:
    I. The brig Sally, Eden Wadsworth, master, sailed on a commercial voyage on the 11th day of May, 1797, from Boston, bound for Hamburg, Germany. While peacefully pursuing said voyage she was seized on the high seas by the French privateer L’Iíydra (The Hydra), captain, Etienne Demoliere, and conducted into the Isle of He, France. The following proceedings were then had:
    July 23, 1797, the tribunal of commerce of Saint Martin, Isle of B.6, in an elaborate decree gave the following judgment:
    “ We have judged the capture made by the corsair, The Hydra, Gapt. Etienne Demoliere, of the ship Sally, Capt. Eden Wadsworth, and her cargo, to be null and illegal, as being both neutral property, in consequence whereof, we order the release of the said ship Sally, her rigging, apparel, appurtenances, and dependencies in the same state as they were at the time of capture of the ship.”
    
      Further provisions were made, including a decree against' the owners of the privateer for all' expenses, damages, interest, and costs.
    November 28, 1797, the civil tribunal of the first instance of the Department of the Lower Charente rendered a decree on appeal, reversing the judgment of the tribunal of commerce on the technical ground that two supplementary judges had sat with the regular judges, and therefore remanded the cause to the tribunal from whence it came, with the direction, however, that it should be heard before different judges than those who had first taken cognizance of it.
    The commercial tribunal' of 'St. Martin having refused to judge anew the cause, the matter was referred to the tribunal of cassation. This tribunal annulled both judgments and sent the cause to be tried in the first instance before the commercial tribunal of La Rochelle.
    May 26,1798, the tribunal of commerce of La Rochelle rendered a decree condemning the vessel and cargo.
    July 19,1798, this decree was affirmed by the civil tribunal of the first instance of the. Department of the Lower Charente ^ on the ground of a want of a role d’equipage, this becoming final, whereby said vessel and cargo became a total loss to the owners.
    II. The Sally was a duly registered vessel of the United States, of 140|| tons burden, belonging to the port of Boston, Mass., and was owned by the firm of Adams & Loring, consisting of Seth Adams and Joseph Loring, jr., both citizens of the United States, and by Joshua Loring. Adams and Loring owned one half of said vessel and Joshua Loring owned the other half.
    III. The cargo of the Sally at the time of capture consisted of pearlashes, potashes, coffee, horn tips, rum, rice, staves, and tobacco, and was owned by said Adams & Loring.
    IV. Seth Adams and Joseph Loring, jr., dissolved their copartnership after the loss of the Sally and her cargo, as hereinbefore set forth, and upon a division of the assets of the firm all claims on account óf French spoliations became, by the terms of the settlement among the partners, the sole individual property of said Seth Adams.
    
      Y. The losses of Seth Adams by reason of the capture and condemnation of the Sally and her cargo were as follows:
    Onerhalf value of vessel_$2, 800. 00
    One-half freight earnings_ 706. 46
    Value of cargo_ 14,118. 00
    Total_ 17,624.40
    . YI. The claimants herein have produced letters of administration upon 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 the same persons who suffered loss by reason of the capture and condemnation of the Sally, as set forth in the preceding findings.
    Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th day of April,T803, 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 with Spain concluded on the 22d day 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 claimant in his representative capacitj^ is the owner of said claim, which has never been assigned except as aforesaid.
    
      Mr. George A. King for the claimant. Messrs. Geo. A. c& Wm. B. King and Mr. L. C. Black were on the brief.
    
      Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Howry, J.,

delivered the opinion of the court:

French spoliation of this country’s commercial interest and interference with our seafaring people have never been shown to be more flagrantly unjustifiable than under the circumstances disclosed by this record. Indeed, a French civil tribunal of the first instance reversed the first decree condemning the vessel, on a technical ground, it is true, but for reasons which show the unlawful character of the prize court entering the decree of condemnation. Then, a tribunal in cassation annulled everything done by both courts and sent the cause to a tribunal of commerce at La Rochelle. While the decree of the last court again condemned the vessel, the ground stated was not valid. The voyage was lawful and the condemnation illegal.

The questions in the case now arise on the claims made in this court under the act of January' 20, 1885 (23 Stat. L., 283). The vessel was • registered in the names of Seth Adams, Joshua Loring, and Joseph Loring, jr., of Boston. It is alleged in the original complaint that the vessel and cargo were owned by the firm of Adams & Loring, composed of the three persons above named, and • surviving'ownership is stated to be in Adams for the three interests, because upon the division of the assets of said firm all claims on account of French spoliations became the individual property of Adaiiis. An agreement found in the record of "the case of the brig John, Scott, master, is relied upon as establishing such partnership.

In that case the allegation of the complaint is that Adams and Joseph Loring, jr., composed said firm, and in the case at bar the allegation is made that the firm was composed of Adams and the two Lorings. The two statements are inconsistent, and one of them is assuredly erroneous. The agreement relied on does not prove the partnership of the three parties. We accept the proof as most conclusive that the partnership was between Adams and Loring, jr., only. ■ Thjs excludes Loring the elder.

The register of this vessel shows that three persons were ■ the owners, but does not disclose the proportion of ownership. But an inspection of the register of The John shows that the only parties in ownership of that vessel were Seth Adams and Joseph Loring, jr. There is no proof here, as stated, that Joshua Loring was ever a member of the firm. If so, he must have dropped out of the partnership. That does not concern us, however, as to when he ceased to be a member. It does concern the court to notice that in the subsequent proceedings for the settling of the partnership interests in the case of The John the partnership there appears to have existed exclusively between Seth Adams and Joseph Loring, jr. The record title must control in the absence of evidence to the contrary. (The Ganges, 31 C. Cls. B., 175.)

If Joshua 'Loring had an interest as an ■ individual, his legal representatives can not now assert that interest', because the claim as to him was not presented within the two years’ jurisdictional period fixed by the act of'Congress.

Rule 105 (now rule 26) provides for parties' having a common interest to unite in one petition for the recovery of their respective claims, arid for all to be heard together. It is contended that‘this rule relates to underwriters only, and does not apply to vessel' owners. Assuming it to'be true that the rule does apply to vessel, owners, the enforcement of the rule to the extent of now permitting- the individual interest'left out to be admitted after the.period -of limitation fot -interested parties to appear would abrogate the statute. Buies of the court can no more sujDersede :the law'than army-regulations can provide for things inconsistent with an act •of -Congress: ' Properly -interpreted, however, the rule under notice does not atteiript to abrogate the statute, but merely prescribes a convenient method for-claimants having a common interest to. coriie in. It is too late for the legal representatives of Joshua Loring to claim anything 'under- the statute, Or rule, either, because his interest is an adverse interest and not a common interest. ’' -

This phase of the case disposed of, -the next question: is the amount of the interest which the surviving member of the firm as settling partn'er' should have reported growing out of the ownership of the vessel. Defendants contend that in the absence of evidence as to the'particular proportions’which the vessel and cargo are shown to have been'owned the court must presume that such ownership is in equal parts. That is to "say, if the said'firm was-composed of Adams- and the youriger Loring and that firm had ownership iriterests in the vessel with the elder Loring as an individual,' with no proof of the proportions in which the vessel' happened to be owned, the presumption must be carried into the report that the firm of 'Adams & Loring, jr., owned'one-half of the vessel and Loring, sr., owned the other half. Claimants contend that the firm of Adams & Loring owned -two-thirds of the vessel.

We can not adopt the contention of the claimants on this point. In the absence of anything to show that Joshua Loring was recognized as one-third owner, the court, must presume, in view , of all the testimony relating to the property rights of the surviving partner, that the register of the vessel establishes the title to be in the firm'of Adams & Lor-ing, jr., as to one half and in Joshua Loring as to the other half.

The title to a vessel, unless shown to be otherwise,' is that of tenancy in common. Two men shown- to- be in partnership of the whole cargo, but whose names appear on the register of the vessel (which carries the cargo) with a third person, must prove that they own the' vessel as individuals and not as a firm to entitle the two persons to claim one-third each of the ownership of the vessel. The interest of each owner is held in severalty. ín view of the record in the case of The John, Scott (supra), where .the firm of Adams & Loring owned one third, the firm of Hall & Co. owned one-third,’ and James Scott, jr., owned one-third, the presumption is here that this firm of Adams & Loring was a single body, representing a single interest, and they are accordingly held to be owners of one-half of the vessel and entitled to be paid for that one-half interest.

There is another question left to be noticed. Claimants contend that freight should be paid on the gross tonnage of the vessel. The proof shows the amount of cargo actually carried, which is less than the gross tonnage. Two-thirds freight allowance on tonnage is an arbitrary rule- adopted from the rule in commercial cities in the adjustment ■ of average losses. This court has said, in discussing the claims for gross freight, that it must, not be understood as intending any application of this principle to a vessel proceeding under a mere “ expectancy ” of finding cargo at her first port of call. (Schooner John, 22 C. Cls. R.., 408, 463.) With proof showing the amount of cargo carried, we are of opinion that the actual freight must -be computed on the amount carried and not on the vessel’s tonnage. The findings show the result to be an allowance to claimants whose proof entitles them to recover of-one-half the value of the freight earnings, which amount to $706.46. The value of the cargo is fixed by the findings at $14,118 and' of the one-half interest in the vessel at $2,800, in favor of the legal representatives of Adams, the surviving partner of the firm of Adams & Loring.

The findings of the court and its conclusions will be reported to Congress, together with a copy of this opinion.  