
    THE BRIG LUCY. ALFRED E. BURR, Administrator, v. THE UNITED STATES. THE NEW HAVEN INSURANCE COMPANY v. THE SAME. CHARLES HALL ADAMS, Administrator, v. THE SAME. JOHN CROISSANT, Administrator, v. THE SAME.
    [French. Spoliations,
    339, 2925, 279, 2727.
    Decided December 9, 1901.]
    
      On the Proofs.
    
    While the treaty of 1778 is still in force, the Lney sails with a cargo of horses. She clears for Surinam, a neutral port, but delivers the horses at Demerara, a belligerent port. On her return voyage she is captured. The owners of the vessel are the owners of the cargo.
    I. The Treaty with France, 6th February, 1778 (8 Stat. L., Art. NXIV), without reservation or qualification declares horses to be contraband.
    II. Where a vessel sailed in March, 1798, laden with horses for a. belligerent port, but under a false destination, and the owners of the vessel were the owners of the cargo, she was liable to seizure and condemnation on the return voyage, together with her cargo, though it was innocent.
    
      
      The Sej>Oi'te?T statement of the case:
    The following are the facts of the case as found by the court:
    I. The brig- Luc3r, John Clapp, master, on or about March 11, 1798, sailed on a commercial voyage’from Demarara for New London, Conn. On her outward voyage she had cleared from New London, Conn., for Surinam, a neutral port, laden with a cargo of horses and mules, which she conveyed to Demarara, a British possession. The outward-bound cargo belonged to the owners of the vessel.
    On March 24, 1798, while peacefully pursuing said vojmge, said vessel was seized on the. high seas liy the French privateer L’Amour de la Patrie, Williams, master, and taken into St. Johns, Porto Rico, where said vessel and cargo were after-wards condemned and sold by decree of the tribunal of commerce at Basse-Terre, Guadeloupe, whereby both vessel and cargo became a total loss to the owners thereof.
    The grounds of condemnation, as stated in the decree, were as follows:
    “ Hearing the report of the president and the requisition of the commissioner, considering the brig in question was cleared for Surinam, when she has been to Demarara, carrying thither a cargo of mules and horses. Bjt applying the 7th article of the maritime regulations of the 21st libre, 1744, thus combined: ‘No regard shall be had to the passports of neutral princes to which those who have obtained them shall be found to have contravened, and vessels which shall sail under such passports shall be declared good prize,’ and art. 11, lib. 3, section ix of prizes, of the ordonuance of 1681, ‘ arms, powder, ball, and other warlike stores, even horses and equipages, which shall be transported for the service of our enemies shall be confiscated in whatever vessels they shall be found and to whatever persons they shall belong, whether subj ects or allies. ’ Finally, the first article of the decree of the particular agents of the executive directory of the 13th Pluvioes, 5th year, ‘ State vessels and French privateers are authorized to capture and conduct to the ports of the Republic neutral vessels which shall be bound to the Windward and Leeward Islands of America, delivered to the English and occupied by emigrants: these are Martinico, St. Lucy,Tobago, Demarara, Berbian, Esquban.’”
    II. The Lucy was a duly registered vessel of the United States of 101-Jt tons burden, built at Mansfield, Mass., in the year 1793, and registered at Middletown, Conn., September 6,1796, and was owned by James Burr, a citizen of the United States.
    III. The cargo, consisting of sugar, coffee, and rum, was owned by James Burr, the owner of the vessel.
    IV. The losses by reason of said capture and condemnation were as follows:
    Case 339. James Burr was the owner of the vessel and most of the cargo. His losses were as follows:
    The value of the vessel. §4,080
    The value of his portion of the cargo_'. 7, 780
    The freight earnings. 1, 678
    Premium of insurance paid. 350
    Amounting in all lo.. 13, 888
    Less insurance received. 1,372
    Leaving net loss to him of. 12,516
    V. Case 279. The loss of Aquilla Rich, the alleged owner of a part of the cargo, has not been established by competent evidence.
    VI. Case 2727. The loss of Thomas Trott as supercargo, of the vessel has not been established by competent evidence.
    VII. Case 2925. The New Haven Insurance Company, a corporation duly organized under the laws of the State of Connecticut, on March 19,1798, insured Jeremiah Wadsworth and James Burr, through Edward Danforth, in the sum of §1,400 on the cargo of said voyage, at a premium of $350, and afterwards said company paid the sum of $1,372, being the amount of said insurance less the customary abatement, wherebjr said company became subrogated to the rights of the insured to the extent of said payment.
    VIII. The claimants have produced letters of administration on the estates of the parties whom they respectively claim to represent, and have otherwise proved to the satisfaction of the court that the persons of whose estates they are respectiveljr administrators are the same persons who suffered loss through the seizing and condemnation of the brig Lucy, as set forth in the preceding finding.
    
      Mr. II W. Oragin, Mr. John W. Butterfield, and Mr. George A. King for the claimant's.
    
      
      Mr. Charles W. Bussell for the defendants (with whom was Mr. Assistant Attorney- General Pradt).
    
   Nott, Ch. J.,

delivered the opinion of the court:

In this case the owners of the vessel were the owners of the cargo. The outward-bound cargo, carried from an American port to a British (belligerent) port, consisted of horses.

Horses belong to that disputable class of merchandise which may or may not be contraband, according to the circumstances of a case. Where they may be serviceable to the military forces, of the belligerent they are contraband; where they are clearly for the use of the noncombatant portion of a community they form an innocent cargo. Whether' they were or were not contraband was frequently — was almost invariably— a-vexed question during the eighteenth century in prize cases. {The Atlantic, present term.)

The treaty with France of February 6. 1778 (8 Stat. L., p. 12, Art. xxiv), without reservation or qualification declares horses to bo contraband. The only purpose which the court can ascribe to the treaty is that the high contracting parties designed to make that certain which before was uncertain— to remove a cause of dispute from the future determination of prize courts.

The seizure and condemnation of the vessel and cargo in this case were in March, 1798. The voyage therefore came within the restrictions of the treaty, and the court is not at liberty now to inquire into the circumstances of the importation, but must hold that the outward-bound cargo was contraband.

Where the owners of a vessel were the owners of the cargo, the vessel as well as the cargo was subject to confiscation; and where the vessel carrying contraband was falsely documented, or cleared for a false destination, or was guilty of fraud, the liability to confiscation attended the entire voj'uge; that is to say, from the home port back to the home port, and to the cargo on the return voyage, though it might be innocent. There can be no doubt but that such was the recognized law of nations at the close of the eighteenth century. (The Joseph, 8 Cranch, 451-454; Carrington v. Merchants' Insurance Co., 8 Peters R., 494-520.)

In this case it appears by the decree that the vessel cleared for Surinam, a neutral port, but carried her contraband cargo to Demarara, a belligerent port. Neither the protest of the master, nor any document or evidence produced by the claimants, rebuts or tends to rebut the recitals of the decree. The court must therefore declare that the seizure and condemnation of the vessel and cargo were not illegal and that the owners were not entitled to indemnity. The case will be so reported to Congress, together with a copy of this opinion.  