
    THE SCHOONER BETSEY. SAMUEL D. WYMAN, Administrator, v. THE UNITED STATES. CHARLES J. HIGGINS, Administrator, v. THE SAME. CHARLES W. DYAR, Administrator, v. THE SAME. CHARLES F. ADAMS, Administrator, v. THE SAME. SETH P. SNOW, Administrator, v. THE SAME. NATHAN MATTHEWS, Jr., Administrator, v. THE SAME.
    [French Spoliations, 3418, 1671, 3298, 255, 1638, 2394.
    Decided April 15, 1901.]
    
      On the Proofs.
    
    The Betsey had on board when seized in 1800 her register and manifest of the cargo, but no document to show its neutrality. In this court the claimants rely upon a New England custom of the time, which was that where the owners of the vessel were owners of the cargo, no invoice or proof of ownership was carried.
    I.The prize courts of a belligerent nation in 1800 were not bound to take notice of a local custom at variance with the requirements of international law, or to infer, in the absence of,an invoice, that the cargo belonged ,to the owners of the vessel.
    II.Such a custom has been regarded in this court as sufficient to show, prima facie, that the cargo belonged to the owners of the vessel, where the question was simply one of ownership.
    III. A prize court of a belligerent power is entitled to proof of neutrality of the cargo, and in the absence of proof may condemn it as the property of unknown belligerent owners.
    IV. After the abrogation of the treaty of 1778 (1 Stat. L., 578) a passport would not have exempted an American vessel from seizure and search.
    Y. Where a vessel carried nothing to establish the neutrality of the cargo, and it does not appear that the master ofEered proof of it or established any ground upon which this court can hold that the condemnation was illegal, it must be held that the fault was the vessel’s,, and the French court was justified in condemning the cargo.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The schooner Betsey, William Wyman, master, sailed on a commercial voyage on or about May 8, 1800, from Boston, Mass., bound for Demerara. While peacefully pursuing her said voyage she was captured on the high seas, on or about the 17th day of June, 1800, by the French privateer Le Brilliant, Captain Rutz, sailing under the authority of the French Republic, and taken to Basse Terre, Guadeloupe, where both vessel and cai’go were, eleven days later, condemned as good prize and ordered to be sold for the benefit of the captors by the French tribunal of commerce and prizes sitting at that port, wherebj' both vessel and cargo became a total loss to the owners. The grounds of condemnation, as 'set forth in the decree, were that the affidavit at the bottom of the captain’s sea letter was not signed by national officers; that there was no list of the crew or bill of lading, and the invoice did not sufficiently show the cargo to be neutral.
    II. The Betsey was a duly registered vessel of the United States, of 79¡j-f- tons burden, built at Salem, Mass., in 1797, and was owned in equal parts by Thomas E. Gage, Daniel Wild, and William Wyman, all citizens of the United States, residing in the State of Massachusetts.
    III. The cargo consisted of beef, butter, boards and joists, candles, lime, oils, pork, fish, shingles, tongues, a'nd tobacco, and was owned by the same persons who owned the vessel, and in the same proportions.
    IV. The losses by reason of the capture and condemnation of the Betsey were as follows:
    The value of the vessel was. $3,160
    Freight earnings were. 1,333
    The value of the cargo was.i 3,057
    Premiums of insurance paid. 216
    Total. 7,766
    V.Case No. 3418. William Wyman, captain of said schooner, was one-third owner of both vessel and cargo. He insured his interest in the same in the office of Peter C. Brooks in the sum of $1,200, being $600 on the vessel and $600 on the cargo, paying therefor a premium of $216. Said policy was dated May 12, 1800, and was underwritten by sundry persons hereinafter stated.
    Thereafter, on the 26th day of September, 1800, said Brooks, as agent of said underwriters, paid to said Wyman the sum of $1,200 as and for a total loss thereon.
    
      The losses of William Wyman were as follows:
    One-third value of the vessel. $1,053
    One-third value of freight earnings. 444
    One third value of the cargo. 1,019
    Premium of insurance paid. 216
    Total. 2, 732
    Less insurance received. 1,200
    Leaving a net loss of.■-. 1,532
    VI.Case No. 1671. Thomas E. Gage was one-third owner of said vessel and cargo. It does not appear that he effected any insurance on same. His losses were as follows:
    One-third value of the vessel. §1,053
    One-third value of freight earnings. 444
    One-third value of the cargo. 1,019
    Amounting in all to. 2,516
    VII.Case No. 3298.. Daniel Wild was one-third owner of said vessel and cargo. It does not appear that he effected any insurance on same. His losses were as follows:
    One-third value of the vessel. §1,053
    One-third value of freight earnings. 444
    One-third value of the cargo. 3,019
    Amounting in all to. 2,516
    VIII. Case No. 255. Benjamin Homer, as underwriter in the office of Peter C. Brooks, on policy dated May 12, 1800, insured said William Wyman on his portion of the vessel and cargo in the sum of $600.
    Thereafter, on the 26th day of September, 1800, said Peter C. Brooks, as agent of said Benjamin Homer, paid to the assured the sum of $600 as and for a total loss thereon.
    Afterwards said Homer assigned to said Brooks, for a valuable consideration, all his interest in the business and all right and title to recovery for the amount paid.
    IX. Case No. 1638. Crowell Hatch, as underwriter in the office of Peter C. Brooks, on policy dated May 12, 1800, insured said William Wyman on his portion of the vessel and cargo in the sum of $600.
    Thereafter, on the 26th day of September, 1800, said Peter C. Brooks, as agent of said Crowell Hatch, paid to the assured the sum of $600, as and for a total loss thereon.
    
      X. Case No. 2394. Daniel Sargent underwrote a policy for $700 for merchandise shipped on the Betsey, and afterwards, on August 30,1800, paid the same to Jonas Welsh. Whether, however, said Jonas Welsh owned any merchandise on said yessel, or otherwise what his interest was, does not appear.
    XI. The claimants, Samuel D. Wyman, Charles J. Higgins, Charles W. Dyar, Charles F. Adams, Seth P. Snow, and Nathan Matthews, jr., have produced letters of administration upon the estates of William Wyman, Thomas E. Gage, Daniel Wild, Peter C. Brooks, Crowell Hatch, and Daniel Sargent, respectively, and have otherwise proved to the satisfaction of the court that the persons whose estates they represent were the same persons who suffered losses by reason of the capture of the Betsey.
    Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803, 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 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 except as aforesaid, nor does it appear that any of said claims are owned by an insurance company.
    
      Messrs. Curtis (& Pickett, Mr. George A. King_, and Mr. Percy A. Bridgham for the claimants.
    
      Mr. Charles W. Bussell and Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

The American schooner Betsey was condemned by the French tribunal of commerce, sitting at Basse Terre, Guadeloupe, in J une, 1800, after the abrogation of the treaty of 1778. Her nationality was shown by her register and other papers. Of the illegality of the condemnation of the vessel the court is without doubt. The question involved in the case relates to the condemnation of the cargo.

The Betsey carried a manifest showing of what the cargo consisted and that it was an innocent or commercial cargo, not contraband of war. She carried no document whatever to show its neutrality — that is to say, that it was owned by American citizens, and not by belligerent owners. The claimants rely upon a custom then prevailing in New England ports of vessels engaged in trade with the West Indies, that when the cargo belonged wholly to the owners of the vessel no proof of ownership was carried, and conversely that when no proof of ownership appears to the contrary it is to be inferred that the cargo belonged to the owners of the vessel. The court has recognized this custom in some cases, and, so far as the mere question of ownership is involved, would regard the facts in this case as sufficient prima facie to establish the ownership of the cargo if ownership were the only question to be determined. That is to say, if it were established in this case that the condemnation of the cargo was illegal, the court would regard the owners of the vessel as being the owners of the cargo without further proof.

But it is manifest that the courts of another nation were not bound to take notice of a local custom utterly at variance with the provisions of the treaty of 1778 and the requirements of international law.

Ownership is one thing and neutrality is another. The French prize court was not interested in the question whether the cargo belonged to this or that American citizen, but in the question whether it was the property of neutral or belligerent owners. A prize court of a belligerent power was entitled to have the neutrality of a cargo established. The treat}’- of 1778 was based upon the principle that free ships make free goods; but it also required “that if either of the parties should be engaged in war the ships and vessels belonging to the subjects or people of the other ally must be furnished with sea letter or passports made out according to the form annexed to the treaty,” and likewise that such ships should be provided always with a certificate containing the several particulars of the cargo. (Art. XXY.)

The manifest on board answered this last requirement, so that if the vessel had been seized before the abrogation of the treaty and had carried a proper passport her cargo would have been exempt from seizure. There is no evidence in the case except a register, a manifest, and the local custom above referred to. It is recited in the decree that she had a sea let- . ter not property attested, but it does not appear that the sea letter was that prescribed by the treaty, and if it were it would not have been obligatory, we-think, upon France after the abrogation of the treaty by the Act July 7, 1798 (1 Stat. L., 578), on the part of the United States.

It seems, then, only too apparent, so far as now appears, that the vessel carried nothing to establish the neutrality of the cargo. There is no protest on the part of the master in the case, showing the circumstances of the seizure and condemnation, or that he had asserted the rights of American owners, or offered proof of the neutrality of the cargo, or established any ground upon which this court can hold that the condemnation.was illegal and unjust. The fault was the vessel’s. Upon this evidence, and want of evidence, it must be held that the prize court was justified in decreeing condemnation.

The conclusion of the court is that the owners of the vessel and the insurers of the vessel are entitled to indemnity; that the owners of the vessel carrying presumably a belligerent cargo are not entitled to indemnity for freight earnings; that the owners of the cargo and the insurers of the cargo are not entitled to indemnity; and the case will be so reported to Congress with a copy of this opinion.  