
    THE SCHOONER SALLY. CALEB A. SMITH, Administrator, v. THE UNITED STATES.
    [French. Spoliations,
    1053.
    Decided November 17, 1902.]
    
      On the Proofs.
    
    The Sally is captured by a French corvette; a prize crew is placed on board with the intent of carrying her into Guadeloupe. She is recaptured by an English frigate and condemned to pay salvage. What papers she has on board at the time of her capture is not shown, nor does the neutrality of the cargo appear.
    I. In the case of an American vessel seized on the high seas to be sent into a French port, there is no presumption against the captors that the papers required by the laws of the United States are on board.
    II. A French administrative decree directing naval officers to seize American vessels and bring them into West Indian ports, no matter what papers are on board, does not excuse the claimants from showing that a vessel carried her proper papers.
    
      III. The ru’e laid down' in the Xancy (37 C. Cls. R., 401), that search and seizure are not necessarily illegal, the presumption being that they are legally exercised, and that the burden is upon a neutral vessel to show the contrary, reaffirmed.
    
      The Reporten? statement of the case:
    The following are the facts of this case as found by the court:
    I. The schooner Sally, John Leech, master, sailed on a commercial voyage from Salem, Mass., on the 2d day of July, 1790, bound for the West Indies. _.
    While peacefully pursuing said voyage she was captured on the 2d clay of August, 1799, by a'French corvette, the name of whose captain is not shown, which put a prize crew on board and directed the Sally to -be carried into Guadeloupe. While proceeding thither the Sally was recaptured on the 5th day of August by the English, frigate Southampton, commanded by John Harvey, and carried into Tortola, where, on the 7th day of August, 1799, she was condemned to pay one-eighth of the gross value of thew-ossel and cargo as salvage for recapture. What papers the 'Sally had on board at the time of her capture by the French corvette is not shown, nor does the neutrality of the cargo appear.
    II. The Sally was a duly registered vessel of the United States, of Go tons burthen; was-built at Danvers, Mass., in the year 1784, and was owned by John Leech and Ebenezer Shillabor, citizens of the United States, and was of the value of §2,275.
    III. The cargo of the Sally consisted of flour, salt fish, and lumber, and was of the value of $3,253.75.
    Tt does not appear who were the’.owners of said cargo.
    IV. The claimant has produced letters of administration on the estate of the party represented by him, and has otherwise proved to the satisfaction of the court that the party whom he represents is the same person who suffered loss through the capture of the Sally as set forth in -the preceding findings.
    V. Said claim was not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803, and was-not a claim 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 of February 22,1819, and was not allowed, in whole or in part, under the provisions of the treaty between the United States and France of July 4, 1831.
    
      Mr. Charles W. Clagett for the claimant. Mr. Edward Lander was on the brief.
    
      Mr. John W. Trainer for the defendants. Mr. Charles W. Bussell was on the brief.
   Peelle, J.,

delivered the opinion of the court:

The question is, Was the capture of the schooner Sally-illegal % The defendants contend, first, that the authority of the French Government to make the capture is not shown; and, second, that the neutrality of the cargo does not appear.

In reply to that the claimants contend, first, that inasmuch as the laws of the United States (1 Stat. L., 61, 287, 489, 698) required merchant vessels to carry a register, a crew list, a clearance, and a passport, the presumption is that the laws were complied with and that all such papers were on board at the time of the capture; and, second, that under the decree promulgated by Desfourneaux, March 14, 1799, recited in Lacours’s History of Guadeloupe, volume 3, page 14, authorizing the captains and officers commanding vessels of the French Republic “to pursue all American vessels, as well those of the Government as those of the merchant marine, and seize and capture them without exception or distinction, and conduct them into the ports of Guadeloupe or its dependencies,” no matter what papers were on board, the vessel certainly would have been condemned.

Whether the capturing vessel was authorized by the French Government to make the capture is questionable, since neither the name of the vessel nor her captain is given. But assuming that the vessel was authorized by the French Government to make the capture, no recovery can be maintained in this case, because it does not appear what papers were on board the schooner at the time of her capture, and hence the neutrality of the cargo is not shown. The court can not presume that the ship’s papers were such as to show the neutrality of the cargo, and thereby justify" her release.

Such presumption would not onty obviate the necessity of the claimant proving the illegality of the capture, but would at the same time defeat the right of the United States to assert the defense thejr do to justify the capture.

In the case of the schooner Nancy, William Ward, master (37 C. Cls. R., 401), being a casé to recover- salvage for a recapture by a British vessel from a French privateer, the court said: “At the time of the capture, under and by virtue of international law, the privateers of France had the undoubted’and undisputed right to search and, if necessary, to seize American vessels. The right of search is preliminary to the right of seizure, and the right of seizure depends upon the result of the exercise of the right of search. Search and seizure are not necessarily illegal, .because in time of war the belligerents, founded upon the condition of war, have the right to the exercise of both. Upon the seizure of a vessel-, although neutral, all presumptions "are in favor of the seizing vessel and the onus is thrown upon the seized vessel, and therefore when a seizure is made .the presumption of law is that it was properly made. If, upoii the seizure, all presumptions are in favor of the seizing vessel, there is nothing in this case to indicate that the French vessel, in making a search and consequent seizure, acted illegally, so far as the mere seizure is concerned.”

What is there said is applicable to the case at bar, i. e., the presumptions are in favor of the seizing vessel.

Nor will it do to hold that by reason of the decree of Des-fourneaux of March 14,1799, the vessel would have been condemned regardless of the papers she had on board, for, if we were so to assume, still the question -would remain that for want of proper papers she might have been legally condemned.

For the reason stated no allowance can be made in favor of the claimants, and this opinion, together with the findings, will be certified to Congress accordingly,  