
    (Prize.)
    The Fortuna.—Krause et al. Claimants.
    
    A question of proprietary interest, and concealment of papers. Farther, proof ordered, open to both parties. On the production of farther proof by the claimant, condemnation pronounced.
    
      • TfVhers a noutral ship owner lends Iiis name to cover a fraud with regard'to tha cargo, this circumstance will subject the ship to condom-nation.
    It is a relaxation of the rules of the prize court, to allow time for farther proof .in a case whore there has boon concealment of material •papers.
    This is the same cause which is reported ante, yol, 2. p. 161, and which was ordered to farther proof- at the last teriu. It was submitted without argument» upon the farther proof, at the present term.
    Feb. 26th.
   Mr. Justice Johnson delivered

the opinion of the court. Both vessel and cargo, in this case, are claimed in behalf of M,' & J. Krause, Russian- merchants, resident at .Riga, %The documents and evidence exhibited Martin-Krause as the proprietor of the ship, but • the captain swears that he considered her as the property of the house óf M, & J.'Krause,- from their having exercised the ordinary acts of ownership over 'her ; and. in this belief he is supported by the fact that his contract k made with John Krause, by whom he appears to have been put in command of the ship. Martin Krause, who appears in the grand bill of sale, is the same Martin Krause who is a member of the firm of M. & J. Krause.

. , . Analogy 4ween this case St. Nicholas, •417!’7°** *’P"

In all its prominent features, this case bears a strikA y mg resemblance to the case of the St. Nicholas. A vessel,- documented as Russian, is placed under the ^solute controul of a British house, is dispatched under the orders of that house to the Havanna, where ■she is loaded under the directions of an individual of the name of Muhlenbruck, who assumes the character of agent of the Russian owners ; she is then ostensibly cleared out for Riga, but with express orders ’to call at a British port, and terminate her voyage under the orders of the same house, under the auspices of which .the adventure .had originated and been so far conducted.

Under these circumstances, it was certainly incumbent upon the claimant to show the previous correspondence of the British with the Russian house, and -thé immediate dependence of the agent at the Havanna, upon the Russian house for authority, instructions, and resources. When we come to compare the correspondence of Muhlenbruck with that of Smith, the agent in the St. Nicholas; we find here, also, a striking similitude. In that case, the supposed correspondence with the Russian principal is inclosed under cover to. the British ho usé, with a request that they .¡would forward it. In. this case'the letters covering, the invoice and bill of lading, and directed .to M. & J. Krause, is confided to the captain, but with express instructions to forward it to the British house, and await itheir orders.

nEfnUg?romnthB

dence of the claima,,t» and„ existence of evidence b of rest?y*lint*'

The material facts on which the court relies, in making up its judgment on the claim of the cargo, are the following:.

In the first place, there is a general shade of suspicion cast over the whole case, by the fact that all material papers relating to the transaction were mysteriously concealed in a billet of wood. Had there been nothing fraudulent intended, these papers ought to have been delivered along with the documentary evidence. But they were not discovered until betrayed by one of the crew. It is upon the investigation of these papers, principally, that, the circumstances occur which discover the true character of- this voyage.

Secondly. There is no evidence thaí this adventure was ever undertaken under instructions, from M. & J. Krause. But there is evidence - that every , ; . in - thing is set m motion at the touch of Bennet & Co. of London. And although they affect to act in the capacity of agents of the Russian house, even the 1 rules of the common law would constitute them principals, in a case in which they cannot exhibit the authority under which they assume the character' of agents. Again; there is no evidence that' any funds were furnished, by the Russian house for the purchase of this cargo. But there is evidence, and we think conclusive evidence, to ‘show that it was purchased on - funds of the British house, remitted through the medium of the cargo of the Robert Bruce,, a ship loaded by Bennet' & Cot, and despatched about'the same time for the Havanna. in tne letter of instructions of the 18th of March, 1813, the captqin is told to proceed to the Havanna and await the arrival of Muhlenbruck, in the Robert Bruce, for ordej^},-arid in ease of any accidents befalling that vessel..'-to apply to the Spanish house of Ychazo & Carricabura,. at. the Havanna, for farther instructions. And in" a letter to the house of Lorent Steinwitz of Charleston, Bennet & Co. inform them, that the Fortuna is despatched to the Havanna to the address of Ychazo - and Carricabura to obtain a freight for the Baltic, and request Lorent & Steinwitz to advise that house, if they could obtain a freight for her to any port in Europe., This correspondence is explained thus: the cargo of the' Robert Bruce would probably be sufficient to load this ship with colonial produce.; if she arrives in. safety, the original adventure can then proceed, but should she be captured or lost, some return freight must then be fc und for the Fortuna. And accordingly we find in the letter to Bennet & Co. of the 24th March, Mphlenbruck solicits a credit on Jamaica or Cadiz as he expresses if? te to be able .to settle the surplus of the amount al~veady shipped which may be left out,of the proceeds'of the outward bound shipment of the Robert Bruce.”' Now the. only shipment he had then made was by the Fortuna; and this letter gives advice of that s&ipment, as also of the arrival of the Robert Brace, and the progress he had made in disposing of her cargo. The passage quoted means, therefore, (although somewhat obscurely expressed,} “It is possible that the outward cargo of the Robert Bruce may not be sufficient to .pay for the shipment already made by the Fortuna, and you must, therefore, furnish me with a ciedit to make úp .the deficiency,” Ychazo and Carricabura no doubt advanced for the purchase of the cargo of sugars upon the credit of the cargo of the Robert Bruce, and according y we find that house charging a commission for advancing. On these facts we are satisfied that the cargo was purchased with British funds.

Want of MuMenbraolf was the agent of the ciQimants, and proofs that he o?th^enemy house.

Lastly; there is no evidence that Muhlenhruck was agsnt of M.-& «L Krause, and there is abundant evidence of his being the avowed and confidential agent 0f tha British house. "We see in the midst. of the anxiety to keep up the character of agent to the Russian house, this g'entleman,' without being awarG °f it, does an act which at once shows to whom he holds himself accountable. In his letter to Bennett & Co. of flie &4th of March, he requests them to inform the Russian house, that he has made certain advances on account of the ship; But why request Bennett & Co. to do this,- if he was himself in immediate connection apd correspondence with the Russian house ? The tact is, his correspondence with the Russian house'was fictitious, and his object was to inform Bennett and’ Co. in reality, whilst he feigned to address himself ip M. & J. Kráuse, and thus the letters to the latter house, covering the invoice and bill of lading, although of the same date with that to Bennett &' Co. omits this piece ■of information,'which, in a real correspondence, would be groundwork of a credit to himself, and contains ■nothing but the most general information, just enough in fact to glps» over the transaction, and give it the aspect of reality."

Neutral ship ¿£ ™r “h(fr^!g subjects tl ship to ooi demnation.

Relaxation cou™'in aííc p^oofhfa'caBe’ of concealment

With regard to the vessel, it would be enough to observe, that. if a neutral ship-owner will lend his name to cover a fraud with regard to the cargo, this circumstance alone will subject him to condemntioh. But'in this case -there are, also, many circumstances to , _ . . , maintain a supicion that the vessel was British property, or at least not owned as claimed. Although this court, from extreme anxiety to avoid subjecting a neutral to condemnation-, has relaxed its rules in allowing time for. further proof in a case where there was concealment-of papers,,yet nothing has been brought forwaid to support the neutral character of the ship. No charter-party, no original correspondence, nothing, in fact, ..but those formal papers which never fail to accompany a fictitious,, as well as a real, transaction. On the contrary, we find the captain, without any instructions from his supposed owners, submitting implicitly to the orders of Bennett & Co. in every thing ; and the latter assuming even a control over the contraCt which he exhibits with h;. supposed owner in Riga, and expressing a solicitude about his expenses, which could only have been suggested by a consciousness that the house of B. & Co. would have- to pay those expenses.

Upon the whole,'we are satisfied that it is a case for condemnation both of ship and cargo.

Decree affirmed. 
      
      
         Translation of Exhibit, 287. A. “ On iha following conditions have I given to Captain Henry Behrens, the command of the ship Fortuna, under Russian colouis, lying at presenf in Riga.
      1,-Captain Behrens shall' have 25 Alberts dollars monthly wages.
      2. The whole cabin freigBt fcas been allowed him.
      
        3, He is (o receive 6 per cent, primage,
      4. Travelling expenses for the benefit of the vessel, as, • likewise, victualling expense* for (he use of the ship in port, consistent • with moderation, have been allowed to the captain.
      Captain Behren-, on Bis part,'promises to watch the interest of his owner in every respect, and do the best he can for the benefit of the vessel.
      ■ For the fulfilment Of the-present contract! bind myself by my signature.
      Riga, the 12th of August, 1813.
      Per Proc. John Krause, (Signed) Schultz.”
     
      
      
         “London, 18th Nov. 1813. Capt. Henry, Behrens,
      As we have settled your ship’s accounts by paying you a balance of 206Z. IBs. lid. up to November 13th, we now agree that the arrangement made with Messrs. M. fy J. Krause, when you weie last at Riga, shall continue in force, for the pending voyage, as far as relates to your pay and primage, and we agree to pay youta'gratuity of one hundred pounds (1001.) sterling at the exchange current, whenever your voyage shall end', and likewise to allow you your cabin freight at the rate which the ship receives for her cargo. We have ordered Mr. J. F. Muhlenbruck to supply you with the cash necessary ¡for your expenses in the Havanna when arrived out, which we beg may be as little as possible, And in cáse of your wanting any aid in Portsmouth, apply to ‘Mr. Andrew Lindergreen,. or in Plymouth, to Messrs. Fuge &. Son, or in Falmouth to Messrs. Fox Sf Son,- who will supply you on showing this letter. We desire tiiat you’will, with your ship Fortuna, as speedily as possible, join the West India convoy now laying at Portsmouth taking sailing instructions, and proceed with • the same Convoy to the Ilavonna, whfere you will apply to Mr. J, F Muhlenbruck, at Messrs. Ychazo & Carricabura, merchants there. You will receive at the Havanna Mr. J. F. Muhlenbruck’s instructions which you will follow implicit • ly. Mr. J. F. Muhlenbruck goes out to the Havanna on board the Robert Bruce, or' some other vessel in the convoy, if the Robert Bruee is too late. Should any accident’befal him in the vessel on board if which he goes, so that it is ascertained that Mr. J. F. Muhlenbruck cannot arrive at the Havanna, or if he should not. be- arrived there sixty days, (60) after you have arrived there, you will consult with Messrs.Ychazo & Carricabura what is best to be done. Should the convoy be gone on your arrival at Portsmouth you are at liberty to follow it without convoy. Wishing you a good voyage, we remain, &C. (Signed,) BENNET &. Co.,
      On your arrival at Leith apply to Ogilvie & Patterson.
     
      
      
         ’■Havannafiith March, 1815. Messrs. Eennet&Co. London
      Gentlemen,
      I have the honour to refer you to my last letters of 21st of February, and the 1st of March, of which I have sent you by different apportunitie* triplicates. ri he first letter principally contained to request tfie favour of your opening me a credit in Jamaica or Cadiz to be able to settle the surplus of the amount already shipped, which may be left out of the''proceeds of the out- ' bound shipment of the Robert Bruce. I hope that the above letter has reached you in time to grant, me as soon as possible the favour, and, beg to be convinced .that only the greatest necessity engages me to request it; not being able to draw on either America or England. I have now the greatest pleasure to inform you »of the safe arrival of the Robert Bruce, James Chessel, master, on the- Í9th, under protection of his majesty’s ship North Star, Captain Thomas Coe, from Jamaica. From Cork she sailed with' convoy, consisting of his majesty’s ship Leviathan 74, Captain Adam Drummond, the Talbot 20, Captain Spelman Swaine, and the ■ Scorpion . of. 18 guns, Therefore, she -has been the whole voyage under convoy, and the- insurers have to -pay the full returns of 6 per cent, The North Star, which sails to morrow, takes, all the ready vessels for Europe out to Berrhuda ; from thence another con.Voy'WjB bagranted to protect them to England, or at' least as far as the latitude oF Halifax. ■ The Russian ship Fortuna, Captain Behrens, In-den with 1520 boxes assorted sugars bound tó Riga, and for account and risk of Messrs, M. &J. Krause at,that place is ready to jojn this convoy, • I enclose you invoice and bill of lading, which you.wili be pleased to forward, with the first opportunity to the above friends. The Captain Behrens has got instructions from me to touch, according .to the prevailing winds, either in Leith or in the channel. By the present circumstances on. the continent1of Europe, Messrs, M. & J. ¿pause may have been induced- to send this cargo to a better market than it , probably meets at Riga. Should they have given you any instructions concerning this vessel, the Gaptain Behrens has .orders to wait, for your kind information in regard of the farther destination, which ordersfrom you I beg to send him as soon as you know- at what port of the above mentioned he has arrived in England. Please to inform also Messrs. M. & J. Krause, that, I -have -advanced here the captain, 1332 dollars 4 cents, for the use of ship Fortuna. Next week- the cargo of the Robert Bruce will be all delivered, and I endeavour to procure - the highest prices possible, The Oznaburgs will sell as well as the Estopillas,'but I am sorry you was not able to get more of the latter, and of a finer quality, being always the leading article of an assortment of linen. The pri«ca of sugar are nearly the same, and the arrival of this convoy has brought them úp 1-8 to 1-4 dollar higher. Coffee is lower, and I expect to buy and lay in good coffee, at 10 toll dollars. Messrs, Hubbeits, Taylor &' Simpson inform me that I may not expect a convoy leaving Jamaica before the 20th of April. This same convoy can arrive here the 10th or 15th of May, and sill possible exerticm shall be made on my side to get the Robert Bruco laden before this time. I have • till now not received an answer of Messrs. Hibberts, respecting the bills on London.- Your kind letter1 of the 18th of December I have duly received. I am happy that the sugars ate1 bought within your limits,'and wish to be as fortunate with those wanted for the Robert Bruce’s cargo,
      I have the nonour,- &e. (Signed^)
      J. F. MUHLENBRUCK,’’
     
      
      
         (Translation)
      
        <tHavanna,'2iih March, 1814. Messrs. M.&I. Krause,Riga.
      • With the present I have thehonour to send-you (he invoice and bill of lading of a cargo of Sugars 'foi you» esteemed account in the .Fortuna., Captain H. Behrens. The -sb8p could not take more than 1520 boxes white, and 600 •brown, with Cam peachy wood which was necessary for stowing ; together $57,-517- 4, for which you will please give me ■credit. The sugars are of the .new crop bought at a moderate price, and of a very good -quality. And I hatter myself you will be content with the fulfilment of your kind commission. As there is a convoy leaving this place to-morrow for Bermuda, I found it advisable for the Fortuna to join ‘ the same, and wish her a very quick ánd safe passage. Of the above documents I shall send yod duplicate» when 5 have the honour of witting you again. The prices of Bussian articles are at present — Raven’s Duck, $ 16, Canvas$42. Iron can only be sold whh a loss, and in small quantities, as the price has fallen, &.C-.
      (Signed,)
      J. F, MUHLENBRUCK”
     