
    THE BRIGANTINE SPEEDWELL. I. P. STARRETT, Administrator, v. THE UNITED STATES. CHARLES T. LOVERING, Administrator, v. THE UNITED STATES.
    [French Spoliations,
    4095, 3650.
    Decided December 7, 1903.]
    
      On the Proofs.
    
    The Speedwell, pursuing a commercial voyage with innocent cargo in-1796, is seized and carried into St. Martin by a French privateer. The prize court finds that her sea letter, clearance, and all papers are in perfect order and decrees her release. While in custody of the French some articles are taken out of the vessel. Subsequently she is captured on another voyage and illegally condemned. It does not appear who are the owners of the cargo.
    I. Pending judicial proceedings in a prize court it was the duty of the captors to preserve without diminution or destruction the property seized, so that the vessel might be restored with no other damage than delay.
    II.Indemnity may be recovered for property removed while in custody.
    III.The treaty with France of 1778 (Art. xxm) provides that “free ships shall also give a freedom to goods.” When a French privateer ascertained the correctness of the papers of the American vessel and learned the innocence of the cargo by actual search the right of detention came to an end. For subsequent detention the claimants are entitled to indemnity.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The brigantine Speedwell, James Crawford, master, sailed on a commercial voyage from Wiscasset, Me., on the 9th day of October, 1796, bound for St. Bartholomew. She arrived there on the 30th of November and discharged her cargo and set sail thence December 10,1796, and was captured the same day by the French privateer La Surprise, and carried into the island of St. Martin and her papers taken to Guadaloupe. She was there proceeded against before the French tribunal of commerce and prizes. On the 23d of December, 1796, said tribunal, acting upon the report of the commissioner of the executive directory to the effect that “her sea letter, clearance, and all papers attached being in perfect order,” decreed the release of said brigantine. She thereafter on the 14th of January, 1797, being released, put to sea from St. Martin.
    While in the custody of the French some rigging and other articles were taken out of the vessel.
    II. The damage to the owners of said brigantine Speedwell .from her capture and detention were as follows: ■
    Detention.'_$195.00
    Loss of rigging. 100.00
    295. 00
    III. On the 28th of October, 1799, said brigantine Speedwell again sailed on another voyage from Frenchmans Bay, Maine, bound for the British Island of St. Vincent, laden with a cargo of timber, the produce of the United States. She arrived at said island of St. Vincent, and there took on board a cargo of rum, molasses, and sugar, the produce of said island, and set sail on her return voyage February 8,1800.
    pursuing her return voyage she was-captured on the high seas by the French privateer La Marianne, and taken into the port of Basse Terre of Guadaloupe. She was there condemned February 13, 1800, by the tribunal of commerce and prizes of that island, and both vessel and cargo were a total loss to the owners.
    
      The grounds of the condemnation were as follows:
    1. That she had no róle d’equipage.'
    2. That as her cargo consisted of rum, sirup, and sugar, taken on board at the English island of St. Vincent, she fell within the condemnation pronounced by the law of the 29th Nivose, year 6, declaring that “every vessel found on the high seas laden in whole or in part with merchandise from England or her possessions shall be declared good prize, whoever may be the owner of such merchandise.”
    The vessel when captured had on board the following papers, all of which were before said tribunal at the time of condemnation:
    1. Register of the brig, dated Waldo boro, Me., November 21, 1797.
    2. Sea letter showing a load of timber bound for St. Vincent.
    3. Clearance from St. Vincent to Savannah.
    4. Bill of lading taken at St. Vincent of 24 hogsheads of rum and 23 of molasses bound for Savannah.
    5. 6, 7, 8. Four papers concerning'her cargo and her clearances from America to St. Vincent.
    IV. The Speedwell was a duly registered vessel of the United States, of 140 tons burden; was built in Massachusetts in the year 1793, and was owned by James Crawford, Thomas Starrett, and John Spear, in equal proportions, all of whom were citizens of the United States.
    V. The cargo of the Speedwell at the time of capture consisted of rum, molasses, and sugar, but who were the owners of same does not appear.
    i VI. The losses by reason of the last-mentioned capture and condemnation of the Speedwell were as follows:
    The value of the vessel. 84,900.00
    The freight earnings. 2,333.34
    Amounting in all, to. 7,233. 34
    VII. James Crawford, one of the owners, was insured to the. amount of $400 by a polic}r underwritten by Nicholas Gil-man, for which said James Crawford paid a premium amounting to $72. Said policy was paid in full as and for a total •loss.
    
      YIII. Tbe losses of the different claimants by reason of said captures were as follows:
    First voyage. $295.00
    Second voyage.'. 7,305.34
    Total. 7,600. 34
    Distributed as follows:
    James Crawford, one-third of loss.$2,533.44
    Add premium of insurance. 72. 00
    2,605. 44
    Deduct insurance received.:. 400. 00
    2,205.44
    John Spear, one-third loss. 2,533.45
    Thomas Starrett (I. P. Starrett, administrator, claimant in No. 4095), one-third of loss. 2,533.45
    Nicholas Gilman, insurance paid James Crawford, as above deducted. 400.00
    
      Mr. George A. King for the claimants. Messrs. Gurtis c& Pickett were on the brief.
    
      Mr. John W. Trainer for the defendants.
   Howry, J.,

delivered the opinion of the court:

The liability of the United States under the act. providing for the ascertainment of claims of American citizens for spo-liations approved January 20, 1885 (23 Stat. L., 283), is, according to the allegations of the petition, made to depend upon the acts of the French upon two different occasions.

There were two captures. The first resulted in a release and a second in a condemnation.

The findings show that the brigantine sailed on a commercial voyage from Wiscasset, Me., bound for St. Bartholomew. She arrived at her destination, and after discharging her cargo again set sail and was captured on that very day and carried into the island of St. Martin. Her papers were taken to Guadaloupe, where the vessel was proceeded against before the French tribunal of commerce and prizes. The prize court, acting upon information that the ship’s sea letter, clearance, and all papei’s attached were in perfect order, decreed a release. While in the custody of the French some rigging and other ai'ticles were taken out of the vessel. The amount of property taken and the damages for the detention are disclosed by the findings.

The claim for compensation, from the circumstances following this first capture, presents questions which have been partly considered and determined and partly not.

Pending judicial proceedings, it was the duty of the officers and crew of the privateer to preserve without diminution or destruction the property seized, so that in case of a decree in favor of the American owners the vessel might be restored with no other damage than the delay. (The Schooner Nancy, 37 C. Cls. R.., 401.) During the time the vessel was in the hands of the prize court after control had passed out of the privateer it was the duty of the substituted French authority to permit no damage, so that, if cause did not exist for condemnation, to make restitution without the spoliation of anj1-thing either to the vessel or to the cargo on board. This was not done, and compensation must follow for the property shown to have been injured.

In the matter of remuneration for detention after the capture international law does not measure liability for the acts of the French. The treaty of 1778 was then in force. Article 23 of that treaty (Pub. Treaties, ed. 1873) contains the stipulation that “Free ships shall also give a freedom to goods * * * contraband goods being always excepted.” When the searching vessel ascertained the correctness of the papers of the brigantine by an examination and learned the innocence of the cargo by actual search, the right of deten tion came to an end and the vessel was free to pursue her voyage. The time taken for the prize court to determine that which the officers and crew had alreadj” found correct was an unjustifiable delajr for which the merchantman is entitled to remuneration.

The condemnation after the second capture was illegal and resulted in the loss shown by the findings. But the court can not regard the owners of the vessel as being the owners of the cargo in the face of the invoice, which shows the cargo to have belonged to a person not before the court claiming its value.

The acts of the captors after the first capture being unwarranted, the owners of the vessel had a valid claim for indemnity upon the French Government prior to the ratification of the treaty of September 30, 1800. The owners are also entitled to recover the value of the vessel and freight earnings under the same rule.

The findings of fact and conclusions of law, together with a copy of this opinion, will be reported to Congress.  