
    THE BRIG “PATSEY.” THE PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA v. THE UNITED STATES. JOSEPH OGDEN, ADMINISTRATOR, v. THE UNITED STATES. BENJAMIN M. HARTSHORNE AND CHARLES N. BLACK, EXECUTORS, v. THE UNITED STATES. R. MANSON SMITH, ADMINISTRATOR, v. THE UNITED STATES.
    [French Spoliations, 1286, 5166, 4037, 4903.
    Decided January 5, 1914,]
    
      On the Proofs.
    
    The brig Patsey, a duly registered vessel of the United States, was seized September 4, 1797, while on a commercial voyage from Norfolk, Va., to Montego Bay, Jamaica, by a French privateer, and the vessel and cargo condemned as prizes and sold.
    
      I. Where there is no evidence to support the contention of a- partnership between the owners of the vessel and part of the cargo, the court can not assume that the owners were partners.
    II. Where an affidavit appears to have been made by one of the original sufferers after the sailing of the vessel relating to a bill of lading and an invoice on account of the shipment which shows that the shippers were citizens of the United States; and where the affidavit appears to have been made almost immediately after the capture of the ship and it appears that the invoice disclosed that the original sufferers were citizens and residents of this country; and where on its face the notary certifies that the affiant was one of the members of the house of the original sufferers who, according to the certificate were citizens of the United States; and where the affidavit appears to have been made at the place where the parties were engaged in business according to the invoice, the court will accept this as proof of citizenship: Provided further, That where these papers were supplemented by the recitals of the decree of the prize tribunal disclosing that the captors were satisfied with the proof of the statements appearing in the bills of lading the proof would be deemed sufficient.
    
      The Reporter’s statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The brig Patsey, whereof John Livingston was then master, sailed from Norfolk, Ya., August 7, 1797, on a commercial voyage, bound to Montego Bay, in Jamaica.
    While peaceably pursuing said voyage she was seized on the high seas September 4, 1797, by the French privateer Amiable Louisa, Capt. Roullean, who placed a prize crew on board, which conducted said brig to Port de Paix, in the French part of Santo Domingo.
    The vessel and cargo were condemned as good prize by decree of the commission delegated by the French Government to the Leeward Islands sitting at Cape Francois, on the 3d complimentary day of the fifth year of the French Republic (Sept. 19, 1797).
    The ground of condemnation, as stated in the decree, was as follows:
    “Considering that the proceedings and papers incontestably established that the said brig was bound from Norfolk to Jamaica.”
    
      There were no averments in the decree that Sloan and Pagan were not citizens of the United States.
    II. The Patsey was a duly registered vessel of the United States, of 170 43/95 tons burden, built in Virginia in the year 1797, and was owned solely by Harrison Allmand and Francis Smith, both of whom were citizens of the United States.
    III. The cargo of the Patsey, at the time of the capture, consisted of flour, corn meal, bread, corn, peas,’rice, shingles, staves, headings, and crackers.
    Harrison Allmand and Francis Smith were the owners of an invoice of flour, corn meal, bread, corn, peas, rice, shingles, staves, and headings, composing a part of said cargo, of the value of £1,570, Virginia currency, or $4,913.34.
    Sloan & Pagan were the owners of an invoice of flour, bread, and crackers, composing a part of said cargo of at least the value of the sum insured thereon. Said Sloan and Pagan were citizens of the United States.
    IV. The loss to the said Harrison Allmand and Francis Smith, by reason of the capture and condemnation of the Patsey, was as follows:
    Value of vessel. $7,212.00
    Freight earnings. 2,841.30
    Value of cargo. 4, 913.34
    Premium of insurance paid. 3,162.50
    Amounting in all to. 18,129.14
    Deduct insurance received. 11,270.00
    Net loss.. 6,859.14
    Of which the loss of Francis Smith was one-half; or $3,429.57.
    V.August 30, 1797, Walker & Kennedy, as agents of Harrison Allmand and Francis Smith, effected insurance on said vessel in the sum of" $7,000, paying therefor a premium of 271 per cent, in the office of the Insurance Company of North America.
    Thereafter, to wit, December 2, 1797,' the said company duly paid the said assured the sum of $6,860, as and for a total loss by reason of the premises, being the face of said policy less the customary abatement of 2 per cent.
    
      August 30, 1797, said Walker & Kennedy, as agents of Harrison AHmand and Francis Smith, likewise effected insurance on their portion of said cargo in the sum of $4,500 in the office of the same company, paying therefor a similarpremium.
    Thereafter, to wit, December 2, 1797, the said company duly paid the said assured the sum of $4,410, as and for a total loss by reason of the premises, being the face of said policy less the customary abatement of 2 per cent.
    August 21, 1797, Sloan & Pagan, through the agency of Saidler & Waterbury, effected insurance on their portion of said cargo in the sum of $2,500 in the city of New York, paying therefor a premium not stated, by a policy underwritten by various persons, who, with the exception of the firm of Rhinelander, Hartshorne & Co., who underwrote in the sum of $1,000, are at present unknown.
    Thereafter, to wit, November 9, 1799, the said Rhine-lander, Hartshorne & Co., duly paid to the said assured the sum of $980, as and for a total loss by reason of the premises, being the amount underwritten by said firm less the customary abatement of 2 per cent.
    The firm of Rhinelander, Hartshorne & Co. consisted of Frederick Rhinelander, William Rhinelander, Philip Rhine-lander, Richard Hartshorne, William Kenyon, and Joseph Lindley. Said Richard Plartshorne was the survivor of the firm.
    The Insurance Company of North America is duly incorporated under the laws of the State of Pennsylvania.
    VI. The claimants have produced letters of administration on 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 Patsey, as set forth in the preceding findings.
    Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803. They were not claims 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 tbe 22d of February, 1819, and were not allowed in whole or in part under tbe provisions of tbe treaty between tbe United States and France of tbe 4tb of July, 1831.
    Tbe claimants, in their respective capacity, are tbe owners of said claims, which have never been assigned except as aforesaid.
    CONCLUSIONS OF LAW.
    The court decides as conclusions of law that said seizure and condemnation were illegal and tbe owners and insurers bad valid claims of indemnity therefor upon the French Government prior to tbe ratification of tbe convention between tbe United States and the French Republic, concluded on the 30th day of September, 1800; that said claims were rebnquisbed to France by tbe Government of tbe United States by said treaty in part consideration of the relinquishment of certain national claims of France against tbe United States; and that tbe claimants are entitled to tbe following sums from tbe United States:
    The president and directors of the Insurance Company of North America, eleven thousand two hundred and seventy dollars.. $11, 270.00
    
    Benjamin M. Hartshorne and Charles N. Black, executors of Richard Hartshorne, surviving partner of Rhinelander, Harts-horne & Co., nine hundred and eighty dollars. 980.00
    R. Manson Smith, administrator of Francis Smith, three thousand four hundred and twenty-nine dollars and fifty-seven cents. 3,429.57
    Amounting in all to the sum of fifteen thousand six hundred and seventy-nine dollars and fifty-seven cents... 15, 679.57
    No persons claiming to represent tbe estates of Harrison Allmand and Sloan & Pagan have appeared herein.
    Joseph Ogden, administrator, etc., of John Ferrers, has proved no valid claim.
    
      Mr. Theodore J. Pickett for tbe plaintiffs. Mr. James Thompson, Mr. J. Bayard Henry, and Mr. W. T. S Curtis were on the briefs.
    
      Mr. John W. Trainer, with whom was Mr. Assistant Attorney General Huston Thompson for tbe defendants.
   Ho wet, Judge,

delivered the opinion of thé court:

The illegal seizure and condemnation of the vessel is established. There was a total loss of $18,129.14, as appears from the schedules incorporated in the findings and established by the other proofs. Deducting the insurance paid, there was a net loss to the owners of the vessel and that part of the cargo owned by Francis Smith and Harrison Allmand of $6,859.14. Francis Smith’s administrator is entitled to one half of this sum, but as no claim was ever filed for the owner of the other half there can be no allowance for the Allmand interest not sued for.

The contention that the Allmand part of the claim can be allowed under the petition of Francis Smith’s administrator must fail, because the Smith petition is too general to cover anything more than the individual claims of Francis Smith. There is no evidence to support the contention of a partnership between the two owners of the vessel and their part of the cargo, and the court can not assume that these two owners were partners. The jurisdictional act bars any such assumption without proof.

As to the part of the cargo belonging to Sloan & Pagan it must not be understood that their representatives are claiming anything. The argument relating to the citizenship of these two persons goes to a question of right on the part of the underwriters on Sloan & Pagan’s part of the cargo to recover as subrogees for the amount paid said firm. As it is necessary for the American citizenship of the insured to be established before the insurers can recover, we must now consider the matter of citizenship to determine the merits of this part of the claim.

An affidavit on file made by Dunbar Sloan after the sailing of the vessel relates to a bill of lading and an invoice on account of the shipment made by Sloan & Pagan, who according to the affidavit were citizens of the United States. Defendants contend that this statement of citizenship in the affidavit is no part of the facts certified as sworn to, but is merely matter descriptio personx made by the notary. The affidavit appears to have been made almost immediately after the capture of the ship and the condemnation of the goods shown by the bill and the invoice. The invoice in evidence discloses that Sloan & Pagan were citizens and residents of Norfolk, Va. And on its face tbe notary certifies that the affiant was one of the members of the house of Sloan & Pagan, “who are citizens of the United States.” This affidavit, with the-statement of the notary incorporated therein, appears to have been made at the place where Sloan & Pagan seem to have been engaged in business according to the invoice.

It is not usual to prove citizenship so indirectly. Neither a bill of lading nor an invoice is ordinarily employed for any other purpose than to give the names of shippers and consignees, with a statement of the character of the goods shipped and the place of shipment and the port of destination. But these papers in the present instance are supplemented by the recitals of the decree of the prize tribunal, which disclose-that the French were satisfied with the truth of the statement appearing in the different bills of lading and the invoices. The decree also recites that it was a matter of public notoriety that the English in the Antilles were not respecting any neutral flag and particularly that of the United States. The privateer seized the ship as a neutral and the prize tribunal condemned vessel and cargo as neutral property, but for reasons quite different from the matter of the Amercan citizenship of the owners of both. The property was not condemned for the want of proof that Sloan & Pagan were citizens, of the United States. The master’s protest includes complaint of the condemnation for the owners of both ship and cargo. There is no room to doubt ownership and very little occasion, if any, to discredit American ownership throughout. Taking the circumstances and proof all together the court concludes that the citizenship of Sloan & Pagan sufficiently appears to justify the contention of the subrogees of Sloan and Pagan’s interests.

The seizure on the part of the privateer and the subsequent condemnation were illegal acts and the exact amount-recoverable from the. United States is disclosed by the findings, to wit, $15,679.57.

A copy of these findings of the court will be certified to Congress, together with a copy of this opinion.  