
    THE SCHOONER NANTASKET. CHARLES F. ADAMS, Administrator, v. THE UNITED STATES. CHANDLER ROBBINS, Administrator, v. THE SAME. THOMAS N. PERKINS, Administrator, v. THE SAME. SALLY I. S. WRIGHT, Administratrix, v. THE SAME.
    [French Spoliations 929, 1632.
    Decided January 4, 1904.]
    
      On the Proofs.
    
    The register shows that “Spear and Bates are the only owners.” After confiscation Spear surrenders his right, title, and interest to the insurers, warranting himself to have been the true and lawful owner of two-thirds. The only claimants before the court are the representatives of Spear, who seek to recover for two-thirds of the value of the vessel. At the time of the condemnation it appears that there was no proof of the neutrality of the cargo before the prize court.
    I.Where the register states that two persons are the owners, the presumption is that each owns one-ha’f interest in the vessel.
    II.Joint owners are presumed to own equal parts in either vessel or cargo, but insurance by each in different proportions may rebut the presumption.
    III.A manifest showing of what the cargo consists, and an invoice showing that the goods were shipped for account of one of the owners, but not shown to have been on board of the vessel, are not sufficient evidence of the neutrality of the cargo to render the condemnation illegal. The distinctions between this case and the Speedwell (ante) pointed out.
    
      
      The Reporter’s statement of the case.
    The following are the facts of the case as found by the court:
    I. The schooner Nantasket, Asa Higgins, master, sailed on a commercial voyage on or about the 24th day of February, 1800, from the port of Boston, Mass., bound to St. Thomas. While peacefully pursuing said voyage she was seized on the high seas on or about the 1st day of April, in the said year, by the French privateer Petite Victorieuse, Captain Decaen, and carried into Great Bay, in the island of St. Martin, and thereafter, on or about the 14th day of April, 1800, said vessel and cargo were condemned as good prize and ordered sold for the benefit of the captors by the tribunal of commerce and prizes sitting at Basseterre, in the island of Guadeloupe, whereby both vessel and cargo became a total loss to the owners thereof.
    The grounds of condemnation, as set forth in the decree, were as follows, viz:
    Considering that it is established' that the act of affirmation which is given at the bottom of the sea letter does not follow the form prescribed in the model annexed to the treaty of February 6, 1778, in that it is not signed by marine officers.
    Considering that the captain has no róle d’équipage in good form.
    II. The Nantasket was a duly registered vessel of the United States, of tons burden, built in Massachusetts in the year 1793, and was owned by David Spear, otherwise called David S. Spear, jr., in the proportion of two-thirds and by Samuel Bates in the proportion of one-third, both of whom were citizens of the United States.
    It appears that the original register showed the ownership the year before the sailing in Ryder, Spear, and Bates. A memorandum on the back of .this old register shows the same to have been canceled and that the property was partially transferred.
    III. The cargo of the Nantasket consisted of flour, codfish, mackerel, beef, pork, butter, soap, candles, salmon, and boards. The sole evidence of ownership of the cargo consisted ot an invoice showing shipment by David S.,Spear, jr.; neither has any evidence been produced to show the neutrality of said cargo.
    IY. The losses of the owners by reason of the seizure and condemnation of the Nantasket and cargo were as follows:
    Value of the vessel. SI, 800. 00
    Freight earnings for the voyage. 761.83
    Value of the cargo.-. 2,802.45
    Premium of insurance paid. 400.00
    Amounting in all to. 5, 764. 28
    Y. March 1,1800, said David Spear,'otherwise called David S. Spear, jr., effected insurance on said vessel and cargo for the said voyage in the office of Peter C. Brooks, in the sum of §4,000, paying therefor a premium of §400, by a policy underwritten by the following' persons, all of whom were citizens of the United States, each in the sum set opposite his. name, viz:
    
      
    
    August 7, 1800, the said Brooks, as agent, duly paid to the said assured the sum of §4,000, as and for a total loss by reason of the premises, the same being a loss to each of the said underwriters of the amount underwritten bjr him.
    The firm of Jeffrey & Bussell was composed of Patrick Jeffrey and Joseph Bussell, the last named being the suiwiv-ing partner of the firm.
    December 23,1801, David Greene, in consideration of §6,000' to him paid by Peter C. Brooks, and the assumption by the said Brooks of all disadvantages arising from his underwriting in the office of said Brooks, assigned to said Brooks all his right, title, and interest in and to all insurance done by him as an underwriter in the office of the said Brooks.
    April4,1808, E. Partridge and W. Gooch, administrators of Tuthill Hubbart, in consideration of §60,000 to them paid by Peter C. Brooks, and the assumption by the said Brooks of all disadvantages arising from the underwriting of the said Tuthill Hubbart in the office of the said Brooks, assigned to said Brooks all the right, title, and interest in and to all insurance done by the said Hubbart in the office of the said Brooks.
    December 16,' 1801, William Smith, in consideration of $3,715.50 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all disadvantages arising from his underwriting in the office of said Brooks, assigned to the said Brooks all his right, title, and interest in and' to all insurance done by him as an underwriter in the office of the said Brooks.
    VI. The loss to said David Spear, otherwise called David S. Spear, jr., was as follows, viz:
    Two-thirds of value of the vessel. §1,200. 00
    Two-thirds of freight earnings. 507. 88
    Premium of insurance paid on vessel. 156. 52
    Total.1,864.40
    Less insurance received on vessel. 1, 565.20
    Leaving net loss to him of. 299.20
    
      Messrs. Ourtis $ Piolcett for the claimants.
    
      Mr. John W. Travner (with whom was Mr. Assistant Attorney- General Pradt) for the defendants’.
   Howry, J.,

delivered the opinion of the court:

The Nantasket was condemned and confiscated at St. Bartholomew. The decree recites that upon an analysis of the papers it was found that the sea letter, being in contravention of the passport, did not follow the form prescribed by the model annexed to the treaty of 1778 and that the vessel for that reason was condemned. But this was after the abrogation of the treatjr of 1778. The alleged deficiencjr in the róle d’équipage was insufficient to authorize the decree, and the resultant condemnation was therefore illegal.

The first question that arises relates to the ownership of the vessel. It is contended for the claimants that David Spear owned two-thirds of the schooner, but the defendants insist that the only evidence of that allegation is a statement in the subsequent insurance receipt, which is not sufficient to prevail against the evidence supplied bjr the register showing equal ownership in Spear and another. As the only persons be-lore the court making claim to the vessel are Spear’s representatives, the dispute as to ownership narrows itself to what title Spear had in the vessel at the time of the capture.

The original register produced at the hearing discloses ownership of the vessel the year before the sailing in one Ryder, Spear, and Bates. This register seems to have been canceled by a subsequent register, according to a memorandum which appears on the back of the original evidence of ownership to the effect that the property was partially transferred. The memorandum discloses nothing else, but the second register shows that in the year of the capture “Spear and Bates are the only owners of the ship or vessel called the Nantasket, of Boston.” After confiscation Spear receipted the insurance company, surrendering the right, title, and interest he possessed in the schooner, so far as the same was insured, warranting himself in the receipt to have been the true and lawful owner of a two-thirds interest.

If there was nothing in the case but the register in force when the vessel went to sea, the presumption would be that Spear was the owner of one-half interest in the vessel only. Joint owners are presumed to own equal parts in vessel and cargo; but insurance bjr each in different proportions' may rebut this presumption. (The Betsey, Obear, 23 C. Cls. R., 277.) The case at bar comes within this rule. Though there is nothing to show the insurance of any part of the ship in favor of the one-third interest not claimed, the insurance receipt does show an ownership by Spear of a two-thirds _ interest. Supplemental to this we have as testimony the first register, which contains evidence of a transfer to some- one. This, taken in connection with the settlement made -by the ' insurance company, leaves no room to doubt that Spear became the owner of two-thirds of the vessel, and the award to Spear must accordingly be for two-thirds.

The claim to compensation for the cargo stands upon an entirely different basis.

The schooner carried a manifest, showing of what the cargo consisted. This of itself did not establish neutrality of the cargo. (The Schooner Betsey, Wyman, 36 C. Cls. R., 256.) The invoice, however, shows the goods were shipped for account of one of the owners of the vessel.

The protest of the master does not show the circumstances of the seizure and condemnation. There is nothing in it to show that the cargo was neutral or that proof of neutrality was offered or that the rights of the supposed American owner were asserted. It is true the protest contains a statement that some articles of merchandise on board belonged to the master, but his claim is not before the court, and we are dealing with the claim of the one alleged to be • the owner of practically everything seized. The master’s protest fails to show that all his papers were on board at the time of the capture, or what his papers were. Under these circumstances we are constrained to believe that there were no papers relating to the cargo except an alleged invoice, and certainly the important fact of neutrality was not disclosed by it.

But the presence of the paper purporting to be the invoice is not disclosed by the decree. This paper appears among the files in such form as to preclude its acceptance as an invoice. The insurance company may have received this paper after the capture. But upon the presumption that it was an invoice it is contended that the shipment of the merchandise for account of one of the owners is disclosed and that the presumption of neutrality must prevail. The case of the Speedwell, Orwoford ante, p. —), where the presumption of ownership arose in favor of the person whose name appeared on an invoice, is cited in support of the contention.

The question of neutrality of cargo did not arise in the Speedwell. The claim of title to the cargo by the owner of the vessel was there denied because the invoice showed the title to be in another person. The innocence of the cargó having been established, ownership thereof was of no further concern to the captors; but, being a material inquiry on a claim for its value under the French spoliation act, the invoice was accepted as the best and only evidence of ownership against persons exhibiting nothing whatever in their favor but ownership of the vessel.

It is further said that if the tribunal which condemned the ■ship had not possessed complete proof of the neutrality of the cargo the matter would have been mentioned in the decree.

In all cases under the act of January 20, 1885 (24 Stat. L., 505), the United States are entitled to whatever valid defenses belonged, to France. Though the ground of the condemnation on the face of the decree be illegal, it was nevertheless the right of France at the time of the capture to rely upon all the facts, and that is the right of the United States now. (The Joanna, Boggs, 24 C. Cls. R., 198.)

It not being necessary for the decree to recite all the grounds of condemnation, and the court now finding that neutrality of the cargo was not established, the claim for the cargo and the insurance thereon is denied. The owner of two-thirds of the vessel is entitled to indemnity for the proven value of his interest, together with freight earnings,-and the case will be so reported to Congress with a copy of this opinion.  