
    THE SCHOONER MARY. CHARLES E. ALEXANDER, Administrator, v. THE UNITED STATES. WILLIAM I. MONROE, Administrator, v. THE SAME. HORACE B. SARGENT, Administrator, v. THE SAME. CHARLES T. LOVERING, Administrator, v. THE SAME. WILLIAM G. PERRY, Executor, v. THE SAME. WILLIAM S. CARTER, Administrator, v. THE SAME. JOHN W. APTHORP, Administrator, v. THE SAME. ROBERT GRANT, Administrator, v. THE SAME. LAWRENCE BOND, Administrator, v. THE SAME.
    [French Spoliations,
    367, 3042, 3570, 3571.
    Decided December 2, 1901.]
    
      On the Proofs.
    
    In 1797 the Mary is seized on the high seas by a French privateer. On the following day her master and crew overpower the captors and carry her into Tortola. There the master, being unable to put to sea for want of a sufficient crew, sells the vessel and cargo at a sacrifice.
    
      I. Where a neutral vessel seized by a belligerent is being sent in for examination, her rescue by her master and crew is unlawful.
    II. A belligerent has the right to search neutral vessels, and the right of search carries with it the correlative duty of submitting to search.
    
      The Reporters'1 statement of the case:
    The following are the facts of the case as found by the court:
    I. The schooner Mary, a duly registered vessel of the United States, belonging- to the port of Boston, whereof John Myrick, a citizen of the United States, was master, sailed from the port of Boston on a commercial voyage in 1797 bound for Demerara with a cargo of merchandise, both vessel and cargo being owned by Jonathan Merry, a citizen of the United States. She duly arrived at Demerara and sold her cargo, and with the proceeds the master purchased a return cargo for account of the owner, with which she sailed from Demerara for Boston March 30, 1797.
    XI. On the 11th day of April, 1797, while peacefully pursuing her return voyage, said vessel was seized on the high seas by a French privateer commanded by Capt. Antoine Fuette. On the following day, however, the master succeeded in overpowering the prize crew and recapturing the vessel, and took her into the island and port of Tortola, one of the Virgin Islands. There the said master, having been deprived of his ship’s papers, which had been carried off on the privateer, was unable to put to sea, or to obtain a crew for the want thereof, and was compelled to sell the vessel and cargo at a sacrifice and at the best prices which he could obtain for same.
    III. The losses by reason of the capture of the Mary were as follows:
    Value of the vessel. 3>3,000.00
    Value of the cargo from Demerara. 5, 758.86
    Unsold goods in outward cargo. 432.48
    Total. 9,191. 34
    Proceeds of sale of vessel.§1,500.00
    Proceeds of cargo, gross sales. 5,193.54
    - 6,693.54
    Net loss §2,497. 80
    
      As the captain while at St. Thomas could not receive all his money for the vessel and cargo, and had . waited a considerable time for payment, but could not obtain it in cash, he thought it most for the interest of those concerned to take a quantity of nutmegs and cloves in part payment, which he did at the current price therefor.$2,036.50
    Duties and freight at Portland. 341. 64
    2, 378.14
    The above nutmegs and cloves were sold in Boston for. 1,415. 30
    Loss on nutmegs and cloves. 1962. 84
    Total. 3,460.40
    Expenses from Tortola to St. Thomas and from there home_ 279. 93
    Total loss. 3,740. 33
    IY. On December 17, 1796, Jonathan Merry, owner of the vessel and cargo, insured his interest therein for the voyage aforesaid, in the sum of $5,250, in the office of Joseph Taylor, an insurance agent of Boston, and said policy was underwritten as follows:
    Daniel Sargent. $600.00
    Jonathan Williams. 700.00
    John Brazer.•_. 700. 00
    Nicholas Gilman. 750. 00
    William Smith. 500. 00
    Caleb Hopkins. 500.00
    Nathan Bond. 500.00
    William H. Boardman.. 1,000.00
    On the 21st of February, 1798, the underwriters paid to said Merry $2,426.52, in the proportions underwritten by each, respectively, as and for a partial loss, at the rate of 46.22 per cent.
    On December 19, 1796, Joshua Hilton, the mate of said vessel, insured his interests in certain goods on board the said vessel, constituting his adventure for the voyage aforesaid, in the sum of $250, in the office of said Joseph Taylor, and said policy was underwritten in that sum by said Nicholas Gilman. On October 4,1797, said Gilman paid the said Hilton the sum of $54.33, as and for a partial loss.
    Y. The claimants have produced letters of administration for the parties whom they respectively represent and have otherwise proved to the satisfaction of the court that the persons of whose estates they are respectively administrators are the same persons who suffered loss through the capture of the Mary, as set forth in the preceding findings, and that they were citizens of the United States.
    
      Mr. George A. King, Mr. W. T. S. Curtis, and Mr. Theodore J. Pickett for the claimants.
    
      Mr. Charle» W. Russell (with whom was Mr. Assistant Atr torney- General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The several claims involved in this action are prosecuted by citizens .of the United States, who allege, in substance, that prior to the convention between the United States and the French Republic, concluded September 30, 1800, they had valid claims to indemnity upon the French Government arising out of the illegal capture of the vessel and cargo in ques-ion while peacefully pursuing a commercial voyage on the high seas, and that under the Fi’ench'spoliation act of January 20, 1885 (23 Stat. L., 283), they are severalty entitled to a finding and conclusion as to the loss sustained.

In April, 1797, the schooner Mary, John Myrick, master, sailed from the port of Boston on a commercial voyage bound for Demarara with a cargo of merchandise, and after having-reached that port and disposed of her cargo the master with the proceeds purchased a return cargo.

In April, 1797, while peacefully pursuing her return voyage the vessel was seized on the high seas by a French privateer, commanded by Gapt. Antoine Fuette, and a prize crew was put on board, but on the following da}*- the master succeeded in overpowering the prize crew and recaptured the vessel and took her into the island and port of Tortola, one of the Virgin islands; but for the want of ship’s papers, which had been carried off on the privateer, he was unable to put to sea or obtain a crew, and was therefore compelled to sell the vessel and cargo at a sacrifice.

On this state of facts the Government contends that whatever claim arose in claimant’s favor upon the French Government growing out of the capture aforesaid was released by the act of the master when he overpowered the prize crew and recaptured the vessel, and that therefore the case comes within the decision of the case of Dederer v. The Delaware Insurance Company (2 Washington’s Circuit Court Reports, 61).

In that case an action had been brought on two policies of insurance, dated in 1806, on the ship Romulus and her freight, both being valued, one of which was at and from New York to Habana and back. The vessel had sailed from New York to Habana, and on her return voyage was captured bv a British-privateer, “the captain of which assigned as the cause of the capture that war was either declared or would soon take place between Great Britain and the United States.” The crew, except the captain, the mate, and a boy, were taken off the Romulus, and the vessel, under a prize master, was ordered to Halifax.

On the voyage to Halifax the captain of the Romulus, apprehending the loss of his property on board and his imprisonment, and the loss which would result to the owners of the vessel and cargo, “ concerted with the mate and the boy a plan to retake the vessel,” but “after a warm contest it was given up. The vessel and cargo were carried in, libeled as enemy’s property, and condemned as good and lawful prize ” on the ground of the captain’s attempt to retake the vessel as aforesaid.

On that state of facts Mr. Justice Washington, in respect of the attempt to rescue the vessel, said:

“ That the attempt to rescue the vessel was unlawful and afforded a ground of condemnation is proven by the opinions of the best informed jurists, and has received the sanction of the common-law courts in a variety of instances. The doctrine was indeed admitted by the plaintiff’s counsel, though said not to apply to this case, as the captain acted under misinformation given him by the captors. This excuse, however, will not do as between the insurer and the insured, because the latter before he can recover must prove that he has strictly complied with the terms of his warranty. He can not justify a breach of it b3r alleging misconduct in third persons.”

In the present case, however, the resistance or grounds for condemnation were stronger and more aggravated than in that case, for here there was successful resistance by retaking the vessel at a time when all resistance to search was unlawful. Here we have only to do with the liability of France prior to September 30, 1800, and if none existed at that time then none of the claimants had valid claims for indemnity.

A belligerent power has the undoubted right to cause neutral vessels to be searched for the purpose of preventing the conveyance of contraband goods destined to an enemy’s port, but to avoid abuse in the exercise of such right full faith and credit should be given to the ship’s papers, “unless fraud appear in them or there be good ground for suspecting it.” The right of reasonable search carries with it the corresponding duty of the master of such neutral vessel to submit thereto, and if such ship refuse to be searched, she has, by such act, given good ground for condemnation as a lawful prize. (Vattel’s Law of Nations, Book III, 339 et seq.; Barker v. Blakes, 9 East Rep., 283; 1 Chitty’s Commercial Law, 482-489; The Ship Maria, 1 C. Rob. Rep., 340; The Ship Mentor, 1 Edwards’s Rep., 208.)

It necessarily follows where a neutral vessel was seized, as in the present case, and put in charge of a prize master, to be carried to a port to undergo prize proceedings to determine the character of such vessel and her cargo, that the master had no right to take the law into his own hands and by force retake the vessel.

.His act, therefore, was unlawful, and furnished good grounds for condemnation as a lawful prize; so that whatever claim might have arisen against France growing out of the capture of the vessel was released by the unlawful act of the master by which the claimants were bound, and hence they had no valid claim against France prior to the convention between the United States and the French Republic, concluded September 30, 1800; nor were they claims released to France in part consideration of the relinquishment of certain claims of France against the United States. For the reasons given, the claimants are not entitled to any allowance in their favor.

This opinion, together with the findings in the case, will be reported to Congress for their consideration.  