
    THE SNOW THETIS. THE PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA v. THE UNITED STATES. GORDON GAIRDNER, Administrator, v. THE SAME.
    [French Spoliations,
    1323, 2378.
    Decided May 19, 1902.]
    
      On the Proofs.
    
    The captors take the master of the Thetis on board of the privateer, leaving only a part of the crew on the prize. She is'carried in and condemned in the absence of the master and without an opportunity being given for any person to appear on behalf of the owners.
    I.Where the decree of a prize court is silent as to the appearance of the master or owners, and there is neither protest nor proof to show that they were denied a hearing, the presumption is that they were given an opportunity to defend. But where the proof shows that they were deprived of such an opportunity, the condemnation is an ex parte proceeding and illegal.
    II.The recitals of a decree are considered a part of the evidence in a case, but the essential things to be investigated in such cases are the regularity of the proceeding in the prize court and the opportunity to appear and defend.
    III.It was well settled at the end of the eighteenth century that before a ship or cargo could be disposed of by the captor there must be a regular judicial proceeding wherein both parties might be heard.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The snow Thetis, Samuel Cameron, master, sailed on a commercial voyage on or about the 1st day of April, 1797, from Madeira, bound to Charleston, S. C.
    While peacefully pursuing said voyage she was seized on the high seas on or about the 30th day of the said month bjr the French privateer Liberty and conducted to Monte Ohriste, and both vessel and cargo thereafter condemned and ordered sold for the benefit of the captors by decree of the French prize court sitting at Cape Francois, whereby the same became a total loss to the owners thereof.
    The grounds of condemnation, as set forth in the decree, were as follows:
    First. That the vessel ivas coming from an enemy’s port;
    Second. That the inventory of the papers found on board failed to show a register, certificate of cargo; charter party, invoice, and bill of lading.
    The evidence establishes to the satisfaction of the court that the privateer Liberty captured the snow Thetis, took the master of the snow and four of his seamen to the Liberty, but left the mate, three seamen, the captain’s wife, a girl, and a black boy on board the Thetis. The Thetis was then ordered to Fort au Paix, where the privateer belonged; that the captured vessel sailed in company with the privateer and a brig until spoken by a Spanish frigate, when the privateer left them; that they proceeded on the voyage, but came to anchor in company with the brig in the.baj' of Monte Christe, where the prize master obtained a pilot and proceeded to Fort Dauphin; from thence the master went to Cape Francois to put in a claim for the vessel and cargo, being the only officer left on board the Thetis; and thereupon the mate applied to the American consul at the cape for relief, and in company with the consul waited upon the French administration, but neither were permitted to see the authorities; thereupon they sent a petition in writing to the administration, but obtained no answer, and afterwards the prize master disclosed to the mate the condemnation of the vessel and the cargo. The cargo was subsequently landed and sold at public sale, while the trunks and chests on board the Thetis were rifled of their contents, the captain and passengers deprived of their belongings, and the mate turned out of the vessel, after which the mate, with the captain’s wife, the girl, and the black boy, took their passage home.
    II. The Thetis. belonged to the port of Charleston, S. C., but -as no register is produced her age, tonnage, and ownership can not be ascertained. It appears, however, that said vessel was insured for said voyage with the Charleston Insurance Company for the sum of §6,000, as hereinafter set forth.
    Said insurance was effected by James and Edwin Gairdner & Co., citizens of the United States and merchants of Charleston, and were afterwards paid by said insurance company the sum of $6,000, as and for a total loss thereon.
    III. The cargo of the Thetis at that time of capture consisted of wines and was owned principally bjr said James and Edwin Gairdner & Co.
    One James Reill\T owned a small invoice of wine on board said vessel, but whether said Reilly was a citizen of the United States does not appear.
    IV. The losses by reason of the capture and condemnation of the Thetis and cargo, so far as is shown by the evidence, were as follows:
    Value of the cargo owned by James and Edwin Gairdner & Oo. §14,524.11
    Freight earnings. 2,160. 00
    Premium of insurance paid by James and Edwin Gairdner & Go. on cargo. 900. 00
    Amounting in all to. 17, 584.31
    Less insurance received by James and Edwin Gairdner. 11,640.00
    Leaving a net loss of. 5,944.11
    V.James and Edwin Gairdner effected insurance in the office of the Charleston Insurance Company in the sum of $12,000 on said cargo, paying therefor a premium of $900. They were afterwards paid by said company the sum of $11,640 as a loss arising by reason of the promises, being the face of said policy loss an abatement of 3 per cent.
    The said James and Edwin Gairdner & Co. likewise effected insurance on said vessel in the sum of $6,000 with the said company, paying therefor a premium not stated. They were afterwards paid the said sum of $6,000 by the said insurance company as a loss arising by reason of the premises.
    No claim is presented herein in behalf of the Charleston Insurance Company.
    
      VI. Majr 5, 1797, said James Reilly, through the agency of one Robert Andrews, effected insurance with the Insurance Company of North America in the sum of $820, paying therefor a premium of 10 per cent.
    November 4, 1797, the said company duly paid the said Robert Andrews as agent the sum of $803.60, as and for a total loss by reason of the promises, being the face of said policy less the customary abatement of 2 per cent; but it not appearing that said Reilly was a citizen of the United States no allowance is made to said insurance company for the loss on said policy.
    VII. The firm of James and Edwin Gairdner & Co. was composed of said James Gairdner, Edwin Gairdner, and Robert Mitchell, citizens of the United States, residing in Charleston, S. C. Said James Gairdner was the survivor of the firm.
    The claimant, Gordon Gairdner, has produced letters of administration on the estate of James Gairdner and has otherwise proved to the satisfaction of the court that the parties whom he represents are in fact the same persons who suffered loss through the seizure and condemnation of the Thetis, as set forth in the preceding findings.
    
      2lr. TE T. ¡S. Curtis for the claimants. Curtis ds Pickett, Mr. Leonard Myers and Mr. ITenry M. Parle were on briefs.
    
      2£r. John IV. Traner (with whom was Mr. Assistant Attorney-Ganeral Pradt) for the. defendants.
   Howry, J.,

delivered the opinion of the court:

The recitals of the decree of the prize court, if true, might warrant the view that the sea letter ivas insufficient and the condemnation legal. There may have been, as the decree alleges, neither register, charter party, invoice, nor bill of lading on board the vessel at the time of her capture, and it may be that the vessel came from an enemj^s port. But it is needless to measure the sufficiency of the papers on board or to determine nationalitj' or ownership of the vessel b3r anything disclosed in the action of the prize court under the view wo are constrained to take of the order of condemnation.

Where the decree of the prize tribunal is silent as to the presence of the parties in interest, and there is neither protest nor proof equivalent to it showing that' the owners or their agents were denied a hearing, the presumption is that they were present and given an opportunity to defend. But where it can be gathered from the action of the prize court or from proof contemporaneous with the transaction that the proceeding was one of those which justified the American complaint of that period respecting condemnations without notice to vessel owners, no effect will be given to the summary disposition of a vessel under such a decree.

In this case the condemnation is not sufficiently established. The decree can not be accepted for that purpose, because the proceeding was ex parte. On its face the decree shows that the decision, upon its announcement, was to be notified to the master of the vessel, but there is nothing to show the presence of the master or other person in interest at the hearing.

The proof in the case is a story of wrong and injustice to the merchantman. It sufficiently appears that the privateer took possession of the Thetis, carried the master and four of the seamen to the capturing vessel, leaving the mate, three seamen, the captain’s wife, a girl, and a black boy on board the Thetis, which was then ordered to Port au Paix, where the privateer belonged; that they sailed in company with another brig and the privateer until spoken by a Spanish frigate, when the privateer left them; came to anchor witli the brig in the bay of Monte Ohriste, when the prize master obtained a pilot and proceeded to Fort Dauphin; from thence the mate went to Cape Francois to put in a claim for the vessel and cargo, being the only officer left on board; that the mate applied to the American consul at the cape, who with him waited on the administration, but neither were permitted to see the authorities; that they sent a petition in writing to the administration, but obtained no answer, and afterwards the prize master disclosed to the mate the condemnation of the vessel and the cargo. The cargo was subsequently landed and sold at public sale. The trunks and chests on board were rifled of their contents, the captain and passengers deprived of their belongings, and the mate turned out of the vessel, after which the mate, with the captain’s wife, the girl, and the black boy, took passage home.

In formulating the general principles of proceeding in prize . courts in a letter to Mr. Jay on behalf and at the request of the Government of the United States, by Sir W. Scott and Mr. J. W. Nicholl, in 1791, the following principles were declared:

“Before the ship or goods can be disposed of by the captor there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize in a court of admiralty, judging by the law of nations and treaties. The proper and legal court for these condemnations is the court of that state to whom the captor belongs.” (1 Am. St. Pap. (For. Rel.), 494 ff; 3 Wharton’s Int. L. Dig., sec. 330.)

The general principle was recently declared in two cases by this court that owners have a right to defend their property in order to show facts which will establish the illegality of the seizure. (The Good Intent, 36 C. Cls. R., 262; the Sally, 37 C. Cls. R., 74.) The decisions in these cases arose in proceedings where it appears that no decrees of condemnation were produced and no evidence of any other kind was offered to justify the seizure. The cases differentiate themselves from the present proceeding in that a decree is relied upon here. But here', as in the cases cited, the essential things to be investigated are the regularity of the proceeding in the prize court and the opportunity given to the parties in interest to appear and defend. West Indies decrees of that period were often characterized by a total disregard of the right to-be heard, and in this case wo think the decree should not pre • vail against the protest and the uncontradicted recital of the summary method adopted by the French to appropriate the cargo. The proceeding was void, and not merely voidable. The fundamental distinction between a void transaction and one merely voidable is too well understood to be elaborated, if indeed elaboration were necessary.

The findings of fact and the conclusions of law, with a copy of this opinion, will be certified to Congress.  