
    THE SCHOONER JOHN EASON. DAVID STEWART AND JOHN E. SEEMES, Receivers, v. THE UNITED STATES. A. P. WARRINGTON, Administrator, v. THE SAME. THE PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA v. THE SAME. BENJAMIN M. HARTSHORNE AND CHARLES N. BLACK, Executors, v. THE SAME. RICHARD DELAFIELD, Administrator, v. THE SAME.
    [French Spoliations,
    1580, 1663, 817, 4037, 2555.
    Decided May 12, 1902.]
    
      On the Proofs.
    
    After the illegal condemnation of the vessel and cargo, the owners, in ignorance of the fact, procure insurance thereon “lost or not lost.” The insurers pay the loss and now prosecute the claim.
    I. Where a vessel had been condemned at the time when insurance was effected, the recovery will go to the extent of the value of the vessel, but not to the premium paid for insurance.
    II. The theory upon which a premium of insurance has been deemed recoverable in this class of cases is that the payment of the premium adds so much to the value of the property insured; but the liability of France is limited to the value of the property at the time of its illegal seizure or condemnation, and can not be augmented by subsequent transactions between owners and insurers.
    
      The Pejjorter-h statement of the casé:
    The following are the facts of the case as found by the court:
    I. The schooner John Eason, John Cowper, master, sailed on a commercial voyage on or about July 15, 1798, bound from Norfolk, Va., to Kingston, in the island of Jamaica. While peacefully pursuing said voyage she was captured on the high seas on or about the 1st day of August, 1798, by the French privateer called La Liberte, Captain Brard, and taken into Porte de Paix, and on or about August 14 of that same year both vessel and cargo were condemned and sold by the French prize tribunal, sitting at Cape Francois, and became a total loss to the owners and insurers. That the ground of condemnation, as set forth in the decree, was that there were certain informalities in the róle d’équipage.
    II. The schooner John Eason was a duty registered vessel of the United States, of 117 tons burthen, and was owned by John Cowper, Joseph Cowper, William Cowper, and Robert Cowper, composing the firm of John Cowper & Co., citizens of the United States and resident merchants of Norfolk, Va.
    III. The cai'go of the John Eason consisted of flour, corn meal, biscuit, and boards, and was the sole property of the said firm of John Cowper & Co., the owners of the vessel.
    IY. The loss to the said John Cowper & Co., the owners of the vessel and cargo, wore as follows:
    ■Value of the vessel. §4,680.00
    Freight earnings. 1,950. 00
    Cargo. 4,500.00
    Amounting to. 11,130. 00
    Less insurance collected. 9,968.15
    Leaving a net loss to John Cowper &Co. 1,161.85
    V. On September 20, 1798, the owners, John Cowper & Co., through the agency of one George Sampson, effected, at a premium of 25 per cent, two policies of insurance, each for the amount'of Si,500, one on the vessel and the other on the cargo, lost or not lost, in the office of the Baltimore Insurance Company, which sum of $3,000 the said company subsequentljr paid the insured.
    YI. On the 24th day of August, 1798, the said owners, John Cowper & Co., through the agency of one George Plumstead, effected, at a premium of 17£ per cent, two policies of insurance in the office of the Insurance Companjr of North America, one for $2,500 on the cargo, the other for $1,500 on the freight, lost or not lost, and subsequently the said company paid to the insured the sum of $3,968.15 as and for a total loss.
    YII. On the 20th day of August, 1798, the said John Cowper & Co., through the agency of Edward Goold & Son, effected, at a premium of 15 per cent, a policjr of insurance in New York, in the office of John Delafield, in the sum of $3,000 on the vessel, lost or not lost, which polic3r was underwritten bj^ the following parties, citizens of the United States, in the sums set opposite their names, viz:
    Rhinelander, Hartshorne &Co. $1, 000. 00
    John Shaw. 500. 00
    John B. Church, of the firm of Church & Delafield. 500.00
    Hugh Pollock & Co... 500. 00
    Richard Yates and George Pollock. 500. 00
    Subsequently, on the 8th of November, 1798, the said underwriters paid to the said insured the amount of their respective subscriptions.
    VIII. The firm of John Cowper & Co. was composed of John Cowper, Joseph Cowper, William Cowper, and Robert Cowper, of whom John Cowper was the surviving partner.
    Richard Hartshorne was the surviving partner of the firm of Rhinelander, Hartshorne & Co. John Delafield was the surviving partner of the firm of Church & Delafield.
    IX. The claimants herein have produced letters of administration upon the estates of the parties for whom they appear, and have otherwise proved to the satisfaction of the court that the persons for whose estates they have filed claims are in fact the same persons who suffered loss by reason of the seizure and condemnation of. the schooner John Eason, as set forth in the preceding findings.
    X. 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 provision 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.
    
      Mr. JE T. 8. Curtis for the claimants. Mr. Leonard Myers was on the brief.
    
      Mr. Charles W. Russell and Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelijg, J.,

delivered the opinion of the court:

The claims in these cases arose out of the treaty of September 30, 1800, between the .Republic of France and the United States (Public Ti'eaties of the United States, p. 225), and are prosecuted under the act of January 20, 1885 (23 Stat. L., 283), known as the French spoliation act, whereby jurisdiction is conferred upon the court to find the facts in relation to the validity of claims of citizens of the United States to indemnity upon the French Government arising out of captures, detentions, seizures, condemnations, and confiscations prior to the convention between the two countries concluded September 30,1800, and report such facts and the court’s conclusions thereon to Congress for final action.

The schooner John Eason, as disclosed bjr the findings, while peacefully pursuing a commercial voyage with a neutral cargo from Norfolk, Va., to Kingston, in the island of Jamaica, was captured on the high seas about August 1, 1798, by the French privateer La Liberte, Captain Brard, and taken into Port de Paix, where, on or about August 14, 1798, both vessel and cargo were condemned and sold by the French prize tribunal sitting at Cape Francois, and became a total loss to the owners.

The ground of condemnation set forth in the decree, as recited in the findings, was that there were certain informali-ities in the róle d’equipage.

The John Eason was a duly registered vessel of the United States, and was, together with her cargo, owned by citizens of the United States.

Subsequent to the condemnation of the vessel and cargo the owners thereof effected the insurance set forth in the findings, to wit, August 20 and 24, and September 20, 1798, “lost or not lost,” on vessel and cargo, paying therefor 25 per cent premium on $3,000, 17£ per cent on $4,000, and 15 per cent on $3,000, or in all a premium of $1,900.

There is no controversy but that the vessel and cargo were illegally condemned by the French prize court, and that the owners thereof had valid claims of indemnity upon the French Government for the loss sustained in consequence thereof prior to the ratification of the convention of September 30, 1800. But the defendants contend that inasmuch as the insur-anee was effected subsequent to the capture and condemnation of the vessel and cargo, France is not liable for the premium paid therefor, and, if not, then the United States is not chargeable therewith under the treaty of 1800.

Though the insurance was effected on the vessel and cargo, “lost or not lost,” subsequent to the condemnation and loss of the property so insured, the contract as between the parties thereto was valid. (Sutherland v. Pratt and others, 11 M. & W., 296; Hooper v. Davidson, 98 U. S., 528, 537.)

The theory upon which the premium of insurance had been allowed is that such cost added to the value of the property insured, and that in case of the loss of such property by the illegal acts of France the measure of damages was the value of the property so lost.

But in the present case, as the insurance was not effected until after the condemnation and loss of the property, the cost thereof is not an element to be reckoned in determining the value of the property; and, if not, then, as the liability of the United States follows that of France, no allowance can be made in the claimants’ favor for the premium of insurance so paid.

As the insurance companies paid the claimants’ loss, as set forth in the findings, they are entitled to be subrogated to the claimants’ rights to the extent of the loss so paid.

The findings and conclusions herein, together with this opinion, will be certified to Congress for their final action.  