
    THE BRIG FAIR AMERICAN. ALEXANDER E. HARVEY, Executor, v. THE UNITED STATES. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. THE SAME. ISAAC S. SMYTH, Administrator, v. THE SAME. CHARLES PRAGER, Administrator, v. THE SAME. C. D. VASSE, Administrator, v. THE SAME. CRAIG D. RITCHIE, Administrator, v. THE SAME. WILLIAM D. SQUIRES, Executor, v. THE SAME. FRANCIS R. PEMBERTON, Administrator, v. THE SAME. ROBERT W. SMITH, Administrator, v. THE SAME. LOUIS C. VANUXEM, Administrator, v. THE SAME. USELMA C. SMITH, Administrator, v. THE SAME.
    [French Spoliations,
    3895, 1769, 1436.
    Decided January 18, 1904.]
    
      On the Proofs.
    
    The Fair American is captured by a French privateer on the 17th November, 1798; on the 20th she is recaptured by a United States sloop of war; on the 21st she is again captured by a French frigate; on the evening of the same day she is again recaptured by a United States sloop of war. Subsequently she is condemned by a United States court to pay salvage of one-half the appraised value. The. question in the case is whether the seizures were illegal and France liable for salvage. The evidence does not indicate that the French vessels acted illegally so far as the mere seizures were concerned.
    I. The court reiterates the decision made in the Nancy'(37 C. Cls. R., 410), that search and seizure are not necessarily illegal.
    II. In time of war the proper exercise of the right of search involves no responsibility on the 'part of the power exercising it in the absence of treaty regulations, and the burden of proof that the right is illegally exercised rests upon the owners.
    
      III. The distinction between this case and the Sally (37 C. Cls. R., 542) is that while the illegality of the seizure was not shown in that case, it was shown that the French authorities violated in a gross manner the rights of the owners after seizure. A legal seizure may be defeated by the illegality of the proceedings incident to the care, custody, and condemnation of the vessel.
    IY. After the abrogation of the treaty of 1788 the French privateers had the right to seize vessels of neutrals, but France was responsible for the improper and illegal exercise of the right.
    V. The liability of France depends upon what was done by the crew • of the privateer, and not upon the legal effect of the decree of the American court, except as an indication of the damages.
    YI. The liability of the United States in this proceeding is measured by the liability of France.
    YII. Upon the seizure of a vessel all presumptions are in favor of the legality of the seizure, and the burden of proving to the contrary is upon the party contesting the seizure.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The brig Fair American, Robert Forrest, master, sailed on a commercial voyage on or about the 8th day of November, 1798, from Surinam, bound for Philadelphia. While peacefully pursuing her said voyage she was captured on the high seas on or about the 17th day of said month of November by the French privateer Le Jalouse. On the 20th of said month the said brig was recaptured by the United States sloops of war Montezuma, Captain Murray, and Norfolk, Captain Williams. On the next day (November- 21) she was again captured by two French frigates, the Volunteer and Insurgent, and a prize crew from the frigate Volunteer placed on board, and on the evening of the same day was retaken from the French by Edward D. Griswold, midshipman of the United States sloop of war Montezuma, and several of her crew who had been placed on board when the Fair American was recaptured from the French on the 20th day of said month of November, assisted by Captain Forrest and several of his crew, and conducted to the port of Antigua, where they found the sloops of war Montezuma and Norfolk; that said Edward D. Griswold was appointed prize master of the Fair American by Captain Murray, of the Montezuma, with orders to proceed to Philadelphia, but not being able to make that port, went to Now York.
    Afterwards both vessel and cargo were libeled in the United States District Court for the district of New York,-and on the 11th day of February, 1799, condemned by said court to pay a salvage of one-half of the appraised value of said vessel and her cargo. The vessel was appraised at $6,250, and the cargo at $24,598.16, making together the sum of $30,843.16, of which the salvage paid was one-half, or $15,421.58. From this decree an appeal was entered by Isaac Harvey, jr., owner of the vessel and part owner of the cargo, but said appeal was abandoned.
    II. The Fair American was a duly registered vessel of the United States, of 145J| tons burden, built at Amesbury, Mass., in the year 1796, and was owned solely bjr Isaac Harvej7, jr., a citizen of the United States, residing in'Philadelphia.
    III. At the time of the various captures and recaptures ' hereinbefore set forth, the cargo of the Fair American consisted of molasses, cotton, and coffee, and was owned in whole or in part by said Isaac Harvey, jr., and Reay King, Thomas Loyd, Samuel Howell, Joseph Shoemaker, jr., Charles Shoemaker, Pearson Hunt, .and Pettit & Bayard.
    No claim has been filed on behalf of any of said owners with the exception of said Isaac Harvey, jr.
    IV. Case No. 3895. Isaac Harvey, jr., was the sole owner of the vessel and owner of part of the cargo, of the value per invoice of $8,218.68. He insured his portion of the.cargo with the Insurance Company of the State of Pennsylvania in the sum of $7,950, paying therefor a premium of 30 per cent; and also insured with the same company the freight of said vessel in the sum of $3,000, paying therefor a premium of 15 per cent. He was afterwards paid by said company, as a loss on both policies, the sum of $6,517.64. His losses were as follows:
    One-half appraised value of vessel. §3,125.00
    Costs charged to vessel. 866. 87
    One-half appraised value of cargo. 4,431. 00
    Costs charged to goods. 1,220. 65
    Costs of appeal charged to Harvey. 486. 29
    Costs charged to freight earnings. 224.83
    Total 10,354. 64
    
      Less insurance paid by Insurance Company State of
    Pennsylvania prior to appeal. 56,517.64
    On account of expenses of appeal. 267. 34
    6,784. 98 6, 784. 98
    Net loss. 3,569.66
    Case No. 1436. Joseph Shoemaker, jr., a citizen of the United States, was the owner of certain goods shipped on the Fair American. He insured the same in the office of Shoemaker & Berrett, in Philadelphia, by a polic3r dated July 10, 1798, in the sum of $950, paying therefor a premium of 30 per cent. The pólicj7' was underwritten by the following-persons in the sums set opposite their names:
    Amount underwritten.
    Amount paid.
    $500.00 $320.80 Jeremiah Warder.
    450.00 288.74 Prager & Co.
    April 3, 1799, the said Shoemaker & Berrett, as agents, duty paid the said assured the sum of $609.54 as and for a general average loss of 64.16 per cent. bjT reason of the premises.
    December 6, 1798, the said Joseph Shoemaker, jr., effected further insurance on said goods in the said office in the sum of $1,500, paying therefor a premium of 15 per cent, b}^ a policy underwritten by the following persons in the sums set opposite their names:
    Amount underwritten.
    Amount paid.
    $500.00 $320.80 Ambrose Vasse....
    300.00 192.48 Pratt & Kintzing.
    700.00 449.12 James Vanuxem..
    April 4, 1799, the said Shoemaker & Berrett, as agents, duty paid the said assured the sum of $962.40 as and for a general average loss of 64.16 per cent b}5 reason of the premises.
    The said Joseph Shoemaker, jr., together with Charles Shoemaker, likewise a citizen of the United States, were the owners of certain other goods shipped on the Fair American. They insured the same in the office of Shoemaker & Berrett by a policy dated July 23,1798, in the sum of 11,400, paying therefor a premium of 30 per cent. The policy was underwritten by the following persons in the sums set opposite their names:
    Amount underwritten.
    Amount paid.
    Jones & Clark. $500.00 $291.80
    Baker & Comegys. 500.00 291.80
    Prager & Co. 400.00 233.44
    April 6, 1799, the said Shoemaker & Berrett, as agents, duly paid to the said assured the sum of $817.04 as and for a general average loss of 58.36 per cent by reason of the premises.
    Samuel Howell, a citizen of the United States, was the owner of certain goods shipped on the Fair American. He insured the same in the office of said Shoemaker & Berrett, by a policy dated July 7, 1798, in the sum of $2,500, paying-therefor a premium not stated. The policy was underwritten by the following persons in the sums set opposite their names:
    Amount underwritten.
    Amount paid.
    Ambrose Vasse.
    $500.00
    $238.75 Summerl & Brown. 500.00 238.75
    Pratt & Kintzing... 600.00 238.75
    T. H. <& J.Clifford.. 500.00 238.75
    Robert Smith & Co. 500.00 238.75
    Afterwards the said Shoemaker & Berrett, as agents, duly paid the said assured the sum of $1,193.75 as and for a general average loss of 47.75 per cent by reason of the premises.
    The firm of Prager & Co. was composed of Mark Prager and John Prager. Mark Prager was the survivor of the firm.
    The firm of Pratt & Kintzing was composed of Henry Pratt and Abraham Kintzing. Henry Pratt was the survivor of the firm.
    The firm of Baker & Comegys was composed of Jacob Baker and Cornelius Comegys. Jacob Baker was the survivor of the firm.
    
      The firm of Summerl & Brown was composed of Joseph Summerl and Isaac Brown. Joseph Summerl was the survivor of the firm.
    The firm of Robert Smith & Co. was composed of Robert Smith and James Robertson. Robert Smith was the survivor of the firm.
    The firm of Jones & Clark was composed of William Jones and Samuel Clarke. William Jones was the survivor of the firm.
    The members of above firms and the individual underwriters who have appeared in this case by their legal representatives were all citizens of the United States, and the loss sustained by each was as follows:
    Prager & Co.. $522.18
    Baker & Comegys. 291. 80
    Ambrose Yasse. 557. 30
    Summerl & Brown. 236. 50
    Pratt & Iiintzing. 428.98
    Thomas & John Clifford. 236. 50
    Kobert Smith & Co ! 236. 50
    James Vanuxem.. 449.12
    Jones & Clarke.. 291.80'
    Case No. 1769. The Insurance Company of the State of Pennsylvania insured Isaac Harvey, jr., on goods in the sum of $7,950, at a premium cost to him of 30 per cent, and on freight in the sum of $3,000, at a premium of 15 per cent. Thereafter the said company paid the said Harvey the sum of $6,517.61, as and for a general average loss on said policies, but in what proportion on each policy does not appear. The said company also, paid a further loss of $267.31 on account of expenses of appeal from the decree of salvage, as its proportion on said two policies, making a total loss thereon of $6,781.98.
    The Insurance Company of the State of Pennsylvania insured said Reay King, a citizen of the United States, on certain goods owned by him on the Fair American in the sum of $880, at a premium cost to him of 30 per cent. Thereafter the said company paid the said King the sum of $271.39, as and for a general average loss on said policy. The said com-pan}T also paid a further loss of $10.19, on account of expenses of appeal from the decree of salvage, as its proportion on said policy, making a total loss thereon of $281.58.
    The Insurance Company of the State of Pennsylvania insured said Thomas Loyd, a citizen of the United States, on certain goods owned by him on the Fair American, in the sum of $100, at a premium cost to him of 80 per cent. Thereafter the said company paid the said Loyd the sum of $225.01, as and for a general average loss on said policy. The said company also paid a further loss of $1.69 on account of expenses of appeal from the decree of salvage, as its proportion on saiá policy, making a total loss thereon of $229.61.
    The total loss to the Insurance Company of the State of Pennsylvania was as follows:
    Amount paid on policies of Isaac Harvey, jr.■.§6,517. 64
    Proportion of expenses of appeal thereon. 267. 34
    Amount paid on policy of Reay King. 271.39
    Proportion of expenses of appeal thereon. 10.19
    Amount paid on policy of James Loyd. 225.01
    Proportion of expenses of appeal thereon. 4.69
    Amounting in all to. 7,296.20
    
      Mr. Leonard Myers for the claimant. Mr. Dallas Sanders and Mr. Lawrence Leiois, jr., were on the brief.
    
      Mr. John W. Trainer (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The brig Fair American, Forrest, master, jailed on a commercial voyage on the 8th of November, 1798, from Surinam bound for Philadelphia, and while peacefully pursuing the voyage was captured on the high seas on the 17th of Novem-' ber by the French privateer Jalouse. On the 20th of November she was recaptured by the United States sloops of war Montezuma and Norfolk.

On the next day, to wit, November 21, she was again captured by the French frigates Volunteer and Insurgent and a prize crew placed on board. On the evening of the same day she was recaptured by the United States sloop of war Montezuma and taken to the port of Antigua and there ordered to the port of Philadelphia. Being unable to reach that port, the vessel was taken to the port of New York, where the vessel and cargo were libeled in the District Court of the United States for the district of New York; and on the 11th day of February, 1799, condemned to pay a salvage of one-half of the appraised value of vessel and cargo.

The vessel was appraised at $6,250 and the cargo at $24,593.16, making the aggregate $30,843.16, one-half of which was paid by the owners.

From this decree an appeal was entered by Isaac Harvey, jr., owner of the vessel and part of the cargo, but the appeal was abandoned.

The- Fair American was a duly registered vessel of the United States, of 145^f tons, built in the year 1796, and owned by said Harvey, a citizen of the United States.

The main question to be determined in the decision of the cause is, Were the seizures of the vessel by the French privateers illegal; and,, if not shown to be such by the evidence, are the claimants entitled to recover the amount of salvage paid, or any amount, because of the condemnation by the United States court in-the proceeding for salvage?

Both seizures were made by French privateers when war was flagrant between France and England and after the abrogation of the treaty which had been entered into upon the part of .the United States with the Government of France, denominated Treaty of Amity and Commerce. (8 Stat. L., 12.) As has been said in the case of The schooner Nancy, Ward, Master (37 C. Cls. R., 410):

“At the time of the capture, under and by virtue of international law, privateers of France had the undoubted and undisputed right to search, and, if necessary, to seize, American vessels. The right of search is preliminary to the right of seizure, and the right of seizure depends upon the result of the exercise of the right of search. Search and seizure are not necessarily illegal, because in time of war the belligerents, founded upon the condition of war, have the right to the exercise of both. Upon the seizure of a vessel, although neutral, all presumptions are in favor of the seizing vessel, and the onus is thrown upon the seized vessel, and therefore when a seizure is made the presumption of law is that it was properly made. If, upon the seizure, all presumptions are in favor of the seizing vessel, there is nothing in this case to indicate that the French vessel, in making a search and consequent seizure, acted illegally so far as the mere seizure is concerned. If the seizure was made in a lawful manner, and if no illegality is shown to have existed in what the French privateer did afterwards, then no grounds of recovery exist founded on seizure alone. The liability of France depends upon what it did, and not being a party to the proceedings in which the decree of salvage was made, France is not-bound bjr the legal effects of that decree, except as a mere measure of the damages suffered by the owners of the vessel. The liability of the United States in this proceeding is measured by the liability of France, and if no facts are shown which would make France liable (if this was a proceeding against France), then no liability attaches to the United States under the treaty of September 30, 1800.”

At the time of the seizure of the vessel, it being after the abrogation of the treaty of amity and commerce made in 1788, the French privateer had the right to seize for the purpose of search the vessels of neutrals in the prosecution of the Avar against its enemy, and France was responsible only for the improper and illegal exercise of that right. The right of search is one of the incidents of war to which neuti'als may be subjected, in order not to interfere Avith belligerents in the prosecution of hostilities against each other. It being a recognized right, the proper exercise of the right of search invotyes no responsibility of wrong against the power exercising it.

Upon the seizure of a neutral vessel all presumptions are in favor of the legality of the seizure, it being in pursuance of a conceded right; and the burden of proving to the contrary is thrown upon the parties contesting the legality of the seizure. (Schooner Sally, 37 C. Cls. R., 542.)

As was said in the case of the Nancy, Ward, master (supra), “there is nothing in this case to indicate that the French vessel in making the search and consequent seizure acted illegally so far as the mere seizure is concerned.” This case differs from the Sally in this, to wit, that case did not stop with the mere seizure; but it Avas shown that after the capture the French authorities despoiled the ship by breaking its hatches and plundering it of a great part of its cargo, besides destroying the papers of the ship, by the neglect of the French officers in charge. The court in that case, while holding that the illegality of the capture was not shown, it held that the French authorities violated in a gross manner the rights of the American oAvners after the capture; and because of such illegality of conduct upon the part of the seizing parties the court held that there was a right of recovery. There may be a legal seizure, but the right of the capturing party may be defeated by the illegality of proceedings incident to the care, custody, and condemnation of the alleged prize. In this case the findings show that the Fair American was an American vessel; but beyond that the proof is silent in the requisites to show that the seizure was illegal. The seizure is the only thing complained of in the proceeding; the evidence being deficient in showing facts from which the court would be justified in holding that it was an illegal seizure on the part of the French vessel, and failing in that element of necessary proof, the court decides that the seizure was not illegal. It is only the illegal acts for which the law allows a finding in favor of the claimant.

The findings, with a copy of this opinion, will be certified to Congress.  