
    THE BRIG HIRAM. JOSEPH OGDEN, Adm’r of FERRERS, v. THE UNITED STATES. CHARLES FRANCIS ADAMS, Adm’r of BROOKS, v. THE SAME. HENRY W. BLAGGE et al., Adm’rs of HATCH, v. THE SAME. THE INSURANCE COMPANY OF PENNSYLVANIA v. THE SAME. RICHARD DELAFIELD, Adm’r of DELAFIELD, v. THE SAME. THE NEW HAVEN INSURANCE COMPANY v. THE SAME. SIMON TOMLINSON, Administrator of HULL, v. THE SAME. SIMON TOMLINSON, Administrator of MANSFIELD, v. THE SAME. SIMON TOMLINSON, Administrator of KIMBERLY, v. THE SAME. GEORGE KIMBERLY, Administrator of KIMBERLY, v. THE SAME. JOHN F. PLUMB, Adm’r of JOHN HUMPHREYS, v. THE SAME. JOHN F. PLUMB, Adm’r of JAMES HUMPHREYS, v. THE SAME. RICHARD C. AMBLER, Adm’r of BARTHOLEMEE, v. THE SAME. SAMUEL WILMOT, Administrator of DE FORREST, v. THE SAME. HARRIET E. SEBOR, Administratrix of SEBOR, v. THE SAME. T. B. BLEEKER, Jr., et al., Receivers of THE NEW YORK INSURANCE COMPANY, v. THE SAME. NATHANIEL FELLOWES’S ADMINISTRATOR v. THE SAME. CARLISLE POLLOCK’S ADMINISTRATOR v. THE SAME. PETER ELTING’S ADMINISTRATOR v. THE SAME. WILLIAM OGDEN’S ADMINISTRATOR v. THE SAME.
    [French Spoliations
    5142, 4948, 4078, 293, 1913, 2555, 2908, 637, 515, 3959.
    Decided June 18, 1888.]
    
      On the Proofs.
    
    (1) The administrator of an insurance agent files in due time, under Rule 105, a petition in behalf of twelve underwriters on one policy in solido, and seeks to recover to their use. (2) Some of the underwriters, after the expiration of the jurisdictional period for instituting suits, seek to intervene in his case. (3) The administrator of an insurance agent sets up the claim o'f a deceased underwriter and seeks to recover for his “personal representatives” without alleging administration, and the administrator seeks to intervene without filing a petition or proving the identity of his decedent. (4) The vessel was bought in by the master for the benefit of the owners at trifling cost, but the insurers paid the owners the full value, which they now seek to recover.
    I. The court adheres to the conclusions reached in the case of the Ship Betsey (ante.) and for the reasons there given.
    
      II.A rule (Uule 105), however expressed by tho court or understood by tho parties, can not enlarge tho scope of a statute nor modify conditions imposed upon the jurisdiction of the court.
    III. The administrator of one who kept an insurance office in 1798, and was possessed of no equity in or lien upon the claims of his principals, can not maintain an action under the French Spoliation Act, 1885, on behalf of underwriters.
    IV. Where the administrator of an insurance agent instituted a suit in behalf of all the underwriters upon a single policy, within due time, they may subsequently come in by supplemental petition under Rule 105, though he do not consent.
    V.Where a vessel was bought in by the master for the benefit of the owners at trifling cost, the actual loss measures the extent of the liability of France.
    VI.The recovery of the insurers where a vessel was bought in must be restricted to the money paid, plus tho freight earnings of the voyage and demurrage for the interval between capture and sale. The insurers can not recover more, though they paid the owners the full value of the vessel.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    
      General findings relative to the ship and cargo.
    
    I. The brig Hiram sailed from Antigua for New Haven on the 4-th of May, 1798, under the convoy of a British ship of war. On the 9th of May being separated from her convoy, she was captured by the French privateer Les Deux Amis and taken to the island of St. Martin. The vessel and cargo were condemned at Basse-Terre, Guadeloupe, by the tribunal of commerce on tho 17th Prairial, sixth year of the French Republic. The grounds of condemnation were that the brig, having on her out-yvard voyage been bound from New Haven to Marie Galante, had been to Antigua without having been forced to go there, and had thereby acted contrary to her passport. Subsequent to condemnation, the ship and cargo were sold pursuant to the decree.
    II. The Hiram was a duly registered American vessel, built at Derby, Conn., in the year 1796. She measured 100 tons and her value at the timeof capture would have been, in an American port, $5,000. At the sale described in the first finding, she was bought in by her master for the benefit of her owners for $640, which with, exchange and commissions, made the cost oí her puchase to her American owners $800.
    III. The cargo upon the vessel at the time of capture had been taken on board at Antigua, and consisted chiefly of rum and sugar. It was owned, so far as appears by said invoices and policies of insurance, in part by the firm of Hulls & Mansfield, of Derby, Conn,, in part by the firm of Isaac & Daniel De Forrest, of Stratford, Conn., and in part by one B. Onderdonk, of the city of New York, and was of the value of upwards of $14,000. None of the above-named owners have appeared as claimants in these proceedings.
    IY. The amount of the losses caused by the capture of the Hiram are as follows:
    Purchase of the vessel at sale, etc. $800
    Freight earnings of the voyage (two-thirds). 1,600
    Demurrage between capture and sale. 800
    Losses on the vessel. 3,200
    Value of cargo so far as shown... 14,000
    Total amount of losses. 17,000
    
      Special findings relating to the several eases.
    
    Y. In Oases No. 4948,4078. The Hiram, at the time of capture, was owned by eight persons, one of whom was Israel Kimberly, and one Liberty Kimberly, and their losses by reason of the capture amounted to $800, as shown in Findings II and IY. But their shares in the vessel were at the same time insured by the New Haven Insurance Company in the sum of $1,000. The insurers subsequently paid to them the sum of $980 on such policy, an amount in excess of their actual losses. Of the above owners three, William Mansfield, Sheldon Gracey, and Jacob Townsend, were insured in the office of Peter Char-don Brooks, on their interests in the vessel, for $2,900, upon which the underwriters subsequently paid to them $2,408, an amount in excess of their actual losses. Of the above owners Samuel Hull and John and James Humphreys appear to have been uninsured, and to have suffered losses by reason of the capture of the Hiram as follows: Samuel Hull, $400; John Humphreys, $400; James Humphreys, $400.
    YI. InCase4948. The owners of the vessel claim to have been the owners of a large part of the cargo, but no competent evidence has been produced to establish the fact. In the same case Daniel De Forrest is alleged to have been the owner of a part of the cargo, but no competent evidence has been produced to establish the fact. In the same case James Humph-reys is alleged to have been the owner of a part of the cargo, but no competent evidence has been introduced to establish the fact. In the same case Jared Bartholomew is alleged to have been the owner of a part of the cargo, but no competent evidence has been introduced to establish the fact.
    VIL In Case Ho. 293. Three of the owners of the Hiram on the 21st of May, 1798, obtained insurance on their shares of the vessel in the office of Peter Ohardon Brooks, in Boston, for $2,900, on which policy Nathaniel Fellowes, William Smith, and Crowell Hatch were underwriters. Subsequently there was paid by the underwriters to the assured, as for a total loss, $2,408, to wit: Nathaniel Fellowes, $830; William Smith, $830; Crowell Hatch, $748. But the loss on the vessel, as shown in Findings II and IV, of these three owners amounted to only $1,200. Hence the share of each underwriter proportionately in the claim is as follows: Nathaniel Fellowes, $414; William Smith, $414; Crowell Hatch, $372. Subsequently William Smith assigned to Peter Ohardon Brooks all of his right and interest in this and other vessels and claims in consideration of $4,000. The amount due to the claimant, Charles Francis Adams, under such assignment and. by reason of the capture of the Hiram is $414.
    VIII. In Case 1913. Crowell Hatch, one of the underwriters mentioned in the preceding finding, paid the amount therein set forth. The loss sustained by him by reason of the capture of the Hiram was $372.
    IX. In Case No. 2555. The firm of Church & Delafield did business in the City of New York as marine underwriters and insurers, and on the 17th May, 1798, issued a policy of insurance in favor of B. Onderdonk, upon the cargo which had been shipped on board the Hiram on her voyage from Antiguato New Haven, to the amount of $1,000. Subsequently the insurers paid on such policy the sum of $980. , John Delafield was the surviving partner of such firm. The'loss suffered by the firm of Church & Delafield by reason of the capture of the cargo was $980.
    X. In Case No. 2908. The New Haven Insurance Company, a corporation existing in 1798 and still existing under the laws of the. State of Connecticut, issued' a policy of insurance on the 10th of May, 1798, in favor of Israel and Liberty Kimberly to the amount of $1,000 on the brig Hiram. The company subsequently paid to the assured the sum of $980, as for a total loss. The amount which the insurance company suffered by reason of the capture of the Hiram was $980.
    XI. In Case No. 5142. In 1798, John Ferrers kept an insurance office, and was the agent of underwriters, transacting business in the city of New York. On the 17th May, 1798, the firm of Isaac and Daniel De Forrest procured a policy of insurance in his office to the amount of $6,000 upon their cargo shipped from Antigua on the Hiram. Upon this policy the following-named persons became underwriters jointly and in solido for the entire amount: G-ouverneur & Kemble, John B.. Church, Peter Elting, Thomas White, Jacob Sebor, William.' Ogden, John Shaw, and David Smith & Co. Onthe4th August, 1798, the above-named underwriters paid to the insured the sum of $5,880, as for a total loss, and received from them an assignment of even date, transferring to them the subject-matter of the insurance and their claims therefor. This assignment was, left in the possession of the agent, Mr. Ferrers, and was by him. transmitted, with other papers of like character, to his execu-. tors. On the death of his executors the present claimant,.. Joseph Ogden, was duly appointed administrator.
    XII. In Case No. 637. Jacob Sebor was one of the underwriters mentioned in the preceding finding. He contributed his proportion, $490, upon the policy before described. The loss sustained by Jacob Sebor, by reason of the capture of the.. Hiram, was $490.
    Case No. 515. The Insurance Company of the State of Pennsylvania, a body corporate existing under the laws of that State in 1798, and still existing, on the 31st May, 1798, issued a policy of insurance upon the cargo of the firm of Hulls & William Mansfield, which had been shipped from Antigua on board the Hiram, as set forth in Finding III. Subsequently the company paid upon that policy to the assured, as for a total loss, the sum of $3,528, and the assured thereupon assigned and ceded to the company all of their right to indemnity. The loss suffered by the Claimant by reason of the capture of the Hiram was $3,528.
    
      XIY. In Case No. 3559. The New York Insurance Company was a body corporate existing under the laws of the State of New York in 1798. On the 18th May, 1798, the company insured the firm of Hulls & William Mansfield upon their cargo, which had been shipped on board the Hiram, to the amount of $1,800. Subsequently, the company paid the assured the sum of $ 1,764 as for a total loss. By an order ot the Supreme Court of New York, January 17, 1852, receivers were appointed to wind up and settle the affairs of the company. By an order of the same court, made February 19,1884, the present claimants, T. B. Bleecker, jr., and Chares C. Leary, were appointed with like powers and duties. It does not appear who are the parties in interest represented by the said receivers, nor whether they are stockholders or creditors of the company. The loss sustained by the New York Insurance Company by reason of the capture of the Hiram was $1,764.
    XY. The following claimants have produced letters of administration and have otherwise proved to the satisfaction of the court that the persons whose estates they have administered were the same persons who suffered loss by the capture of the Hiram and were citizens of the Hnited States;
    In Case No. 4948. Simon Tomlinson, administrator of Samuel Hull. The same, administrator of William Mansfield. The same, administrator of Liberty Kimberly. John F. Plumb, administrator of John Humphrey. The same, administrator ■of James Humphrey. Bichard C. Ambler, administrator of Jared Bartholemew. Samuel Wilmot, administrator of Daniel De Forrest.
    In Case No. 4078. George Kimberly, administrator of Israel Kimberly.
    In Case 293. Charles Francis Adams, C. Brooks.
    In Case 1913. Henry W. Blagge et al., Crowell Hatch.
    In Case 2555. Eichard Delafield, administrator of John Delafield, surviving partner.
    In Case 5142. Joseph Ogden, administrator of John rers.
    In Case 637. Harriet B. Sebor, administratrix of Jacob Sebor.
    
      The court decided that the following claimants were entitled, respectively, to the following amounts as indemnity from the United States:
    Simon Tomlinson, administrator of Samuel Hull.„•_ $400
    John F. Plumb, administrator of John Humphrey. 400
    The same, administrator of James Humphrey. 400
    Charles Pranois Adams, administrator of Peter C. Brooks. 414
    Henry W. Blagge etal., administrators of Crowell Hatch. 372
    Richard Delafield, administrator of John Delafield, survivor. 980
    The New Haven Insurance Company. 980
    Harriet E. Sebor, administratrix of Jacob Sebor. 490
    The Insurance Company of the State of Pennsylvania. 3,528
    T. B. Bleecker, jr., et al., receivers of the New York Insurance Company. 1,764
    And the court further decided that the following persons, having been paid by their respective insurers all of their actual losses, had no valid claim for indemnity against either France or the United States: "William Mansfield, Israel Kimberly, Sheldon G-racey, Liberty Kimberly, Jacob Townsend, Daniel De Forrest; and that Jared Bartholemew and John Ferrers had failed to establish a claim to indemnity.
    
      Mr. James Thomson for Joseph Ogden, administrator,
    No. 5142.
    
      Mr. William M. Marie for. Charles Francis Adams, jr., administrator,
    No. 293.
    
      Mr. George 8. Éoutwell for Henry W. Blagge and S. B. Sam-uels, administrators,
    No. 1913.
    
      Mr. Leonard Myers for the Insurance Company of the State of Pennsylvania,
    No. 515.
    
      Mr. Charles G. Beamariand Messrs. Shéllábarger & Wilson for. Kichard Delafield, administrator,
    No. 2555.
    
      Mr. A. IT. Oragin and Mr. John W. Butterfield for Simon Tom linson,administrator; JohnF. Plumb, administrator; Bichard G. Ambler, administrator; Samuel Wilmot, administrator, and The New Haven Insurance Company.
    No. 4948 and No; 2908.
    
      Mr. James Lowndes for Harriet E. Sebor, administratrix.
    No. 637.
    
      
      Mr. Allan Rutherford and Mr. George A. King for George Kimberly, administrator.
    No. 4078.
    
      Mr. Lawrence Lewis, jr., for T. B. Bleecker, jr., and Chas. O. Leary, receivers.
    No. 3959.
    
      Mr. Benjamin Wilson and Mr. O. W. Bussell (with whom was Mr. Assistant Attorney- 'General Howard) for the defendants.
    The vessel was reasonably suspected, and therefore condemned, because her passport to Marie-Galante was evidently false, since she had gone to the British island of Antigua, fifty miles farther north, and set out for home from Antigua. We submit that the falsity of this essential paper and the perjury of the captain to procure it were quite sufficient to raise a doubt upon any and all papers that may have been on board, and of the bona fules of the vessel and her dealings with Antigua.
    From our study of the condemnations in these cases, we do not believe that the so-called decree of condemnation is the whole decree; and we therefore particularly insist upon the impropriety of stigmatizing a judicial decision as illegal upon such an unauthenticated paper. We doubt not that .the paper is part of a decree and correctly translated from the French, but the formalities and specifications which we find in so many others seem to be suspiciously absent.
    The vessel was trading with a colony of a belligerent, in violation of international law.
    The captain’s protest shows that he had to be fired at twice and forcibly taken. This reminds us that the Supreme Court in the case of Bass v. Tingy 4 (Dallas, p. 39), held that prior to any hostile action by Congress France was an enemy, the court sayiug, “ It is by that description alone that either (nation) could justify or excuse the scene of bloodshed, depredation, and confiscation which has unhappily occurred; and surely Congress could only employ the language of the act of June 13, 1798, towards a nation whom she considered as an enemy. The court need not be told that it required no act of Congress to authorize France to make war on us. How was the capture of an American vessel by a French armed vessel a capture by an enemy1? Was it the taking of a prize of war ? Did the law of war apply to it ? To these questions let the Supreme Court answer (same case, p. 49): “ In fact and in law we are at war. An American vessel fighting with a French vessel to subdue and make her prize is fighting with an enemy accurately and technically speaking, and if this be not sufficient evidence of the legislative mind it is explained in the same law. The sixth and the ninth sections of the act speak of prizes, which can only be of property taken at sea of an enemy jure belli (jure belli means by the law of war; what prize means the Supreme Court here are attempting to define); and the ninth section speaks of prizes taking from an enemy, alluding to prizes which had been previously taken, but no prize could have been taken except from France; prizes taken from France, therefore, were prizes taken from the enemy. This, then, is a legislative interpretation of the word enemy, and if the enemy as to prizes surely they preserve the same character as to recaptures. Besides, it may be fairly asked why should the rate of salvage be different in such a war as the present from the salvage in a war more solemn or general ? And it must be recollected that the occasion of making the law of March, 1799, was not only to raise the salvage but to apportion it to the hazard in which the property retaken was placed; a circumstance for which the former salvage lawhad not provided” (namely the law of June 28,1798). “ The two laws, upon the whole, can not be rendered consistent unless the court could wink so hard as not to see and know that, in fact, in the view of Congress and to(every intent and purpose, the possession by a French armed vessel of an American vessel was the possession of an enemy.”
    We conclude with saying that the depredations and confiscations from which our friends, the claimants, suffered were part of the war which our enemies, the French, were then waging against us, being authorized by the French Government in the same manner as prizes and recaptures were appropriately authorized by Congress in response thereto.
   Nott, J.,

delivered the opinion of the court:

The claimant, Josiah Ogden, avers that, in 1798, John Fer-rers, whose administrator he is, kept an insurance office in the city of New York, in which he effected insurance for owner by means of what were then termed “ outdoor underwriters.” The petition of Mr. Ogden does not set up any claim of his decedent against France, but is filed on behalf of those underwriters who, through his agency, insured the brig Hiram.

His counsel has insisted that Mr. Ferrers was the sole custodian of all the underwriters; that he kept their papers; that he preserved their evidence; that he and. his executors and administrators have kept watch for them, and are now employing counsel on their behalf; that he has filed his petition, as a matter of duty, in pursuance of the rule of this court (Rule 105); and that having done so on the suggestion of the court, it is the duty of the court to protect him. He also urges that the twelve underwriters, whom he thus represents upon a policy for $6,000, are not ordinary underwriters each for himself, but that their obligations were joint, or in solido, and hence that it is peculiarly fitting that their joint claims be prosecuted in one suit, which can most conveniently be done by the representative of their single and only agent.

Conversely the counsel of some of these underwriters protest against judgment being rendered in the name of the agent where their clients are entitled to the money, and insist that a recovery can only be in favor of the person authorized by statute to bring suit.

There are, indeed, four classes of underwriters represented or affected by this petition: (1) There are underwriters who are represented in no other way. (2) There are underwriters whose administrators have filed petitions in their own name and sought to recover in their own right. (3) There are underwriters who have filed motions to intervene within the jurisdictional period prescribed by the statute. (4) There are underwriters who have filed such motions, but not until after the jurisdictional period for bringing these suits had expired.

The cases differ somewhat from those which were considered in the cases of the ship Betsey (ante, p. 277), but the court adheres to the conclusions then reached, and for the reasons then given.

The rule which has been adverted to by counsel was framed to simplify and expedite practice and procedure. However expressed or however understood, it can not enlarge the scope of the statute, nor modify the conditions which are imposed upon the jurisdiction of the court. The agent of the underwriters had no claims of his own against the Government of France, and was possessed of no property, equity, interest, or lien in or upon the claims of his principals. It is not perceived that the fiduciary capacity with which he was invested by the underwriters descended to his executors, or was of such a continuing nature as to give him a footing in any court, much less a right to recover upon their claims without their consent. It must, therefore, be held that the present administrator has no valid claim on behalf, of John Ferrers, and that he is not the legal representative of any underwriter, nor entitled to maintain a suit on his behalf.

With regard to those underwriters who have come in by a motion to intervene, either before or since the expiration of the jurisdictional period, it must be held for the reasons likewise set forth in the opinion in the Betsey that they have a right to do so. The court prescribed a method by which a number of claims founded upon a single policy of insurance might be conveniently united in one suit. The administrator of Ferrers was under no obligation to begin that suit, and neither the underwriters nor the court could compel him to do so; but, having voluntarily done so and thereby invited parties with whom his principal haa confidential business relations to come into court in this way, and they having acted upon the faith of the invitation and under authority of the rule of the court, it would be needlessly unjust to deprive them of all right of action. It must, therefore, be held that the claims of these intervening underwriters will not be dismissed if properly presented by a supplementary petition filed either before or after the jurisdictional period.

In a number of these cases a novel question arises which was not fully discussed at the bar, but has received the serious attention of the court. It relates to the extent of the liability of France, and consequently to the extent of the recovery of the owners of the vessel and their insurers.

The Hiram was a brig of 100 tons measurement, and of about $5,000 value. If the case stopped with her capture that amount, with her freight earnings for the voyage, would measure- the liability of France; but it appears that she was bought in by her master for the benefit of her owners at the trifling sum of $640, which, with exchange and commissions, would be increased to about $800. On the one hand,- therefore, the loss which the owners suffered by the capture of their vessel was only about $800; and on the other hand the French Government might well say that the value of the vessel was only $640, in a case where the owners actually acquired her at that price.

But the matter is farther complicated by the fact that two insurance offices paid five of the owners substantially the full amount for which they were insured, an amount which considerably exceeded the real loss. It would seem in such a case, where the owners were paid as for a total loss, that the recovered vessel properly went to the insurers; but, be that as it may, the court is of the opinion that the actual loss measures the extent of the liability, and that the indemnity must be restricted < to the money which was paid to recover the vessel plus the freight earnings of the voyage, and a reasonable sum in the nature of demurrage for the interval between capture and sale. It must, therefore, be held that the recovery of both the owners and insurers be restricted within this measure of damage.

In case No. 293 the administrator of Peter Chardon Brooks sets up one of the policies of insurance before spoken of, upon which one Nathaniel Fellowes was an underwriter to the amount of $1,000. The petition avers loss and payment and all the facts necessary to give Mr. Fellowes a good cause of action if he were actually living. It then demands, “ For and on account of the personal representatives of Nathaniel Fel-lowes, $931.”

On this presentation of the claim of the underwriter the counsel for the United States states the following objection :

“ That Nathaniel Fellowes and the personage, if any, created by letters of administration on his estate, having failed to avail themselves of the Act of January 20, 1805, are to be wholly disregarded by the court.”

For the reasons given in the case of the Betsey it must be held that on the one hand the administrator of Fellowes must come in by supplemental petition, properly alleging his administration ; but it must also be held on the other hand that the court should not wholly disregard a claim thus presented. This claim will therefore be remanded for further proceedings.

The order of the court is that the findings of the court in the following cases be transmitted to Congress:

In case 293, Charles Francis Adams, administrator of Brooks.

In case 1913, Henry W. Blagge et al., administrators of Hatch.

In case 515, the Insurance Company of the State of Pennsylvania.

In case 2555, Eichard Delafield, administrator of Church and Delañeld.

In case 2908, the New Haven Insurance Company.

In case 4948 and 4078, Simon Tomlinson, administrator of Hull, Mansfield, and Liberty Kimberly; George Kimberly, administrator of Israel Kimberly; John F. Plumb, administrator of John and James Humphreys; Eichard O. Ambler, administrator of Jared Bartholemew; Samuel Wilmot, administrator of Daniel DeForrest.

In case No. 5142, Joseph Ogden, administrator of John Fer-rers.

In case No. 637, Harriet E. Sebor, administratrix of Sebor.

In case No. 3959, T. B. Bleecker, jr.„ei al., receivers of the New York Insurance Company.

And that the following claims be remanded for further proceedings :

In case 293, Nathaniel Fellowes.

In case 5142, Carlisle Pollock, Peter Elting, William Ogden.  