
    THE BRIG “BEE.” THE INSURANCE CO. OF NORTH AMERICA v. THE UNITED STATES.
    [French Spoliations, 468.
    Decided October 26, 1914.]
    
      On the Proofs.
    
    The brig Bee, carrying a certificate of American ownership but not registered, was seized while on a commercial voyage from Edenton, N. C., to the island of Barbados and, with her cargo was condemned by the French tribunal of commerce in December, 1798, after the abrogation of the treaty of 1778.
    I. Where the cargo of the vessel seized has not been properly documented the condemnation of the cargo was legal, and the owners and insurers thereof are not entitled to recovery therefor under the authority of the Betsey case. 36 C. Ols., 256.
    II. Where a vessel at the time of seizure carried a certificate showing the ownership to be in a citizen of the United States and is later condemned, such seizure and condemnation is illegal, and the insurers of the vessel are entitled to indemnity for the insurance paid thereon.
    
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. The brig Bee> whereof Denton James was then master, sailed on a commercial voyage on October 22, 1798, from Edenton, N. C., bound to the island of Barbados. While peacefully pursuing her said voyage she was seized on the high seas on November 24, 1798, by the French privateer La Resolue, Capt. Anthony Friol. When the brig’s papers were handed to the captain of the privateer, the first that he came across was the role d’équipage, and finding the brig to be American property, he took no more pains to examine the rest of the papers, but placed a prize master and crew on board and carried the vessel into Guadaloupe. Both vessel and cargo were condemned on December 12, 1798, by the commercial tribunal in the island of Guadaloupe, whereby both vessel and cargo became a total loss to the owners thereof.
    The grounds of condemnation in the decree were as follows:
    “ Considering that the American schooner Bee's expeditions are not conformable to the formalities prescribed by law; that the invoice is not signed by any constituted authorities; that the bill of lading is not signed at all; that the role of equipage is not made before witnesses nor attested by a naval officer; that the notary’s signature, only one, is not even attested; considering in fine that he has no register; that two persons only have given a light certificate at the foot of the role of equipage; -informed that the said schooner was the property of Benjamin Coakley; that those two signatures are not attested; and that the body of that certificate is not equivalent to a register.”
    II. The brig Bee was a vessel of he United States carrying a certificate of ownership but without a register. She was owned solely by Benjamin Coakley, a citizen of the United States, residing in Edenton, N. C. The vessel at the time of capture was v orth at least the sum insured thereon.
    III. The cargo of the Bee at the time of capture consisted of shingles, staves, and headings, and was owned solely by Benj amin Coakley, the owner of the vessel. But it does not appear that the vessel carried any competent documents to establish the neutrality of said cargo before the French court.
    IY. December 27, 1798, Samuel S. Cooper, as agent for Benjamin Coakley, effected insurance on the vessel in the sum of $1,250 in the office of the Insurance Company of North America, paying therefor a premium of 17-?,- per cent.
    Thereafter said company duly paid said insured the sum of $1,225, being in full for a total loss, less the customary abatement of 2 per cent.
    December 27,1798, Samuel S. Cooper, as agent for Benjamin Coakley, effected insurance on the cargo in the sum of $750 in the office of the Insurance Company of North America, paying therefor a premium of T7| per cent.
    
      Thereafter said company duly paid said insured the sum of 735, being in full for a total loss, less the customary abatement of 2 per cent.
    V. The Insurance Company of North America is duly incorporated under the laws of the State of Pennsylvania.
    Said claim was not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803. It was not a claim growing out of the acts of France, allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain concluded on the 22d of February, 1819, and was 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 are the owners of said claim, which has never been assigned.
    CONCLUSIONS OE LAW.
    The court decides as conclusions of law that said seizure and condemnation of the vessel were illegal, and the owners and insurers had valid claims of indemnity therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic concluded on the 30th day of September, 1800; that said claim was relinquished to Francé by the Government of the United States by said treaty in part consideration of the relinquishment of certain national claims of France against the United States; and that the claimants are entitled to the following sum from the United States:
    The president and directors of the Insurance Company of North America,, one thousand two hundred and twenty-five dollars, $1,225.
    But that the condemnation of the cargo was legal, the same not having been properly documented, and the owners and insurers thereof are entitled to no recovery therefor, dollars, $1,225.
    C. Cls., 261.
    No person claiming to represent Benjamin Coakley has appeared herein.
    
      
      Mr. Thomas Stokes for the plaintiff. Mr. J. Bayard Henry was on the brief.
    
      Mr. John W. Trainer, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   BaeNey, Judge,

delivered the opinion of the court:

The American brig Bee was seized and, together with her cargo, was condemned by the French tribunal of commerce sitting in the island of Guadeloupe in December, 1798, after the abrogation of the treaty of 1778. It appears from the decree of condemnation that “the invoice is not signed by any constituted authorities ” and that “ the bill of lading is not signed at all.” There appears in the record a copy of a bill of lading which is signed and a. copy of an invoice which is not signed. This makes some incongruity in the evidence in the case, but, taken together, we think it comes within the case of the Betsey, 36 C. Cls., 256, and that it must be held that the cargo was properly condemned.

As to the vessel, another question is presented. As to her indentity, the decree recites “ that two persons only have given a light certificate at the foot of the role of equipage; informed that the said schooner was the property of Benjamin Coakley; that those two signatures are not attested; and that the body of the certificate is not equivalent to a register.” It thus appears that the Bee was a foreign-built vessel not entitled to registry and.carried some paper purporting to be a certificate of American ownership. In several places in the decree the vessel is mentioned as the “American schooner Bee” and in the protest it is stated that the captain of the French privateer found her to be “American property.” It appears in the record that Benjamin Coakley, at Edenton, N. C., the port from whence the Bee sailed, on the 13th of April, 1799, made oath that he was an American citizen and the sole owner of the schooner Bee.

In the case of the Amiable Nancy, 3 Wheat., 561, the Supreme Court held that the mere absence of all papers affords no just cause of condemnation, but is only a just cause of suspicion which may be explained on the preparatory examination. The same doctrine was laid down in an opinion by Howry, J., in the case of the Schooner Hazard. 39 C. Cls., 376.

In the case before us the decree of condemnation states no claim that the vessel carried contraband goods or had in anywise violated any of the duties of a neutral. She was condemned on the sole ground that the certificate of ownership was not satisfactory to the court, and yet in the very decree of condemnation she is three times declared to be an American vessel. In the same instrument the tribunal acknowledges information that she is the property of Benjamin Coakley, who, as before stated, is shown to have been an American citizen.

It thus appears that the French tribunal which condemned this vessel had before it proof that the vessel was the property of an American citizen, and had in no manner violated any of the obligations of a neutral.

Taking these items of proof together we are inclined to hold that the Bee carried a certificate which sufficiently identified her as being the property of an American citizen. The decree (as translated) says that it was a “light” certificate, doubtless thereby meaning that a certificate of that character was not equivalent to a register, as afterwards stated. But, as stated, they obtained from it the information that she was owned by Benjamin Coakley, who appears to have been an American citizen, and that was all the information it was necessary for it to convey.

“A certificate or passport, therefore, from the sovereign of the flag, or a certificate from one of his consuls, that the vessel is owned by one of his citizens or subjects will be a sufficient assurance that the flag, for international purposes, is rightfully carried. * * * Nonregistered ships on the high seas owned by citizens of the United States will be protected by the Government of the United States, so far as concerns their relations to foreign States.” 3 Wharton’s International Law, sec. 410, p. 663.

Alexander Hamilton, in a letter to the collector of the port of New York, May 13, 1793, said: “ Our property, whether in the form of vessels, cargoes, or anything else, has a right to pass the seas untouched by any nation by the law of nations; and no one has a right to ask where a vessel is built, but where is she owned? ” Id., same section, p. 665.

“A vessel owned by a citizen of the United States may carry its flag and enjoy the protection of its Government on the high seas, although from the fact that she is foreign built or for some other cause she can not become a registered vessel of the county.” Taylor’s International Law, sec. 264.

The conclusion of the court is that the insurers of the vessel are entitled to indemnity for the insurance paid upon the vessel, but not for insurance paid upon the cargo, and the case will be so reported to Congress, together with a copy of this opinion.  