
    THE SHIP JAMES AND WILLIAM. A. P. WARRINGTON, Administrator v. THE UNITED STATES. JOHN STEWART, Administrator, v. THE SAME. PETER F. SCHLEICKER, Administrator, v. THE SAME. ALEXANDER PROUDFIT, Administrator, v. THE SAME.
    [French Spoliations,
    1197, 1089, 3817, 1089.
    Decided March 3, 1902.]
    
      On the Proofs.
    
    The James and William sails from Norfolk bound for London in January, 1798, laden with tar and turpentine. She is captured and condemned because the treaty 1795 with Great Britain declares tar- and turpentine to be contraband.
    I.By the treaty 1778 with France it was declared tnat tar and turpentine “shall not be reputed contraband." Until the abrogation of the treaty by the Act 7th July, 1798 (1 Stat. L., 578) French condemnations on the ground that tar and turpentine were contraband were illegal.
    II.The treaty 1795 with Great Britain did not release France from any obligation of the treaty of 1778.
    III. The decree of the French Government abrogating so much of the treaty of 1778 as related to contraband goods on neutral vessels justified its own cruisers in seizing and its own courts in condemning vessels, but did not abrogate any treaty right of the United States.
    IV. The “ the most-favored nation” clause in treaties relates to duties and rights and benefits in the ports of the parties. Provisions which declare what shall be regarded as contraband or noncontraband, relate to the procedure of the two nations in time of war, and are not affected by a treaty of either with another power.
    V.Where an American vessel carried the passport or sea letter prescribed by the treaty of 1778 (Art. xxv) it was a case where free ships made free goods under Art. xxm. The cargo could not be condemned for want of evidence of its neutrality.
    
      The Pejiorters’ statement of the case.
    The following are the facts of the case as found by the court:
    I. The James and William sailed from Norfolk, Ya., on the 26th of January, 1798, bound for London. On the 22d of February she was captured on the high seas by the French privateer President Parker and carried into the port of Ros-coff. On the 5th of March, 1798, she was condemned by the French tribunal of commerce at Morlaix. The grounds of condemnation set forth in the decree were that the tar and turpentine which formed the chief part of her cargo were declared to be good contraband and subject to seizure by the treaty between the United States and Great Britain, bearing date November 19, 1794, article 18, and that the ship’s papers were not in proper form.
    But it likewise appears by the said decree that there was on board the vessel at the time of seizure a passport from the President of the United States to the master of the ship dated the 20th of January, 1798, signed “John Adams,” President, by Timothy Pickering, Secretary of State, such as was provided for by the treaty with France, February 6, 1778 (Public treaties, p. 203, Art. XXV), and likewise an affidavit made by the master of the ship showing that she was a vessel of the United States and that no citizen or subject of powers then at war had anjT part or interest, directly or indirectly, therein.
    II. The James and William was a duly registered vessel of the United States; was built in Virginia in 1796, of 209 tons burden, and was owned by John Prouclfit and the firm of David Stewart & Sons, citizens of the United States.
    III. The cargo of the James and William consisted of 1,878 barrels of turpentine and 96 barrels of tar, the property of John Cowper & Co., citizens of the United States, and of a case of deer hides and 17 barrels of gentian, for which no claimant has appeared.
    IV. The losses by reason of the capture and condemnation of the James and William were as follows:
    The value of the vessel ivas. $9,405. 00
    The freight earnings of the voyage were. 3,500.00
    The value of the cargo belonging to Cowper & Co. 5,922. 00
    Amounting in all. 18,827. 00
    V. The loss sustained by John Cowper & Co. was $5,922.00.
    VI. The loss sustained by John Proudfit was:
    One-half the value of the vessel. §4, 702.50
    One-half freight earnings. 1,750.00
    Amounting to. 6,452. 50
    
      VII. The loss s istained by the firm of David Stewart & Sons was:
    One-half the value of the vessel. §4, 702. 50
    One-half the freight earnings of voyage. 1,750. 00
    Amounting to. 6,452. 50
    VIII. The said firm of John Cowper & Co. was composed of John Cowper, Josiah Cowper, William Cowper, and Robert Cowper, of which John Cowper was the surviving partner.
    The firm of David Stewart & Sons was composed of David Stewart, John Stewart, David C. Stewart, and William P. Stewart, of which said William P. Stewart was the surviving partner.
    The claimants herein have produced letters of administration for the estates of the parties for whom they appear and have otherwise proved to the satisfaction of the court that the}’ are the same persons who suffered loss by the seizure and condemnation of the James and William, as set forth in the preceding findings.
    
      Mr. William F. Ourtis and Mr. Frank P. Clark for the claimants.
    
      Mr. Charles IP Russdl (with whom was Mr. Assistant Attorney- General Pradf) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

The vessel in this case sailed from Norfolk on the 26th of January, 1798, bound for a belligerent port, London, laden with tar and turpentine. Tar and turpentine, like horses, “belong to that disputable class of merchandise which may or may not be contraband, according to the circumstances of a case."’ (Brig Lucy, ante, p. 97.)

By the treaty with France, 1778 (Public Treaties, p. 210, art. xxiv), horses were declared to be contraband, and tar and turpentine, it was declared, "shall not be reputed contraband.” Such was the law between France and the United States. By the treaty of 179-1 with Great Britain (Public Treaties, p. 278, art. xviii) this policy was in part reversed, and tar and turpentine were declared to be contraband and-“just subjects of confiscation whenever they are attempted to be carried to an enemy.”

The James and William was captured in February and condemned in March, 1798, on the ground that her cargo was contraband; that is to say, she was captured before the abrogation of the treaty' with France, but after the ratification of the treaty with Great Britain. According to the terms of the two treaties, if an American vessel at that time, laden with tar and turpentine, was sailing for a French port, a British prize court was justified in condemning the cargo as contraband. If she was sailing for a British port, a French prize court was bound, according to the letter of the treaty, to pronounce the cargo noncontraband.

Grounding his argument upon this diversity the counsel for the United States contends that the treaty with Great Britain was, in this particular, a rescisión and abandonment of the treaty with France; or that under the most-favored-nation provision of the treaty (art. ii) France was entitled to the benefit of the treaty with Great Britain.

The counsel for the claimants contend that the treaty with France was still in force and that this provision of the treaty related to commerce and navigation, and not to any matter of neutral rights in time of war.

The court is of the opinion that the United States relinquished no obligation to France by their treaty with Great Britain. A nation may abrogate a treaty as it may make a treaty — on its own motion, upon its own responsibility. There is no international forum which can decree that it has no right to do so. What follows the abrogation of a treaty is a matter between the two nations. It may be followed by an interval in which they have no treaty relations, or it may be followed by war. But a nation can not at its pleasure abrogate one article of a treaty and leave all of the other obligations in effect, binding the other power. The decree of the French Government abrogating so much of the treaty of 1778 as related to contraband goods on neutral vessels justified its own cruisers in seizing vessels and its own prize courts in condemning them, but without notice to and acquiescence on the part of the United States the decree could not ex proprio vigore extend to the treaty rights of the United States. In July, 1798 (Act 7th July, 1798, 1 Stat. L., 578), the United States abrogated the treaty in toto, and thereby relieved France from all obligations under it. This court in these spoliation cases has always recognized that release from treaty obligation, and has given to France the full benefits, whatever they may have been, of such exemption.

The most-favored-nation clause of the treaty of 1778 is in these words:

“ The Most Christian King and the United States engage mutually not to grant any particular favor to other nations in respect of commerce and navigation which shall not immediately become common to the other party, who shall enjoy the same favor, freely, if the concession was freely made, or on allowing the same compensation if the concession was conditional.”

It is well known that such provisions in a treaty relate to duties, rights, and benefits in the ports of either ally, and it has been so said of this provision in the treaty of 1778. (Wharton’s Int. Law, vol. ii, sec. 148.) The other provisions of this treaty (art. xxm) related strictly to the procedure bétween the two nations in time of war. What they agreed should be the rule between themselves concerning goods which might or might not be contraband concerned only themselves. No other nation was benefited or injured bjr their entering into that treaty obligation. Conversely, the rule which the United States might establish in conjunction with any other power did not concern France. The definition of what should be regarded as contraband or not contraband was not a favor, but a mutual and reciprocal obligation. It worked both ways. If the case had been reversed, arid the United States had been the belligerent and France the neutral, the exemption would have operated against the United States. If American cruisers in these reversed conditions had seized French merchantmen, because France had made a different treaty with another power, it can not be supposed that France would have submitted to such seizures and condemnations.

It is also contended bjr the defendant’s counsel that so much of the cargo as belonged to Cowper & Co., of Norfolk, Ya., was liable to condemnation, because it did not appear by the ship’s papers that it was neutral property. There was, indeed, an invoice on board averring it to be such, but the invoice was not signed. Without passing upon the question whether such an invoice should have been regarded as evi-deuce by the prize court of the neutrality of the cargo — that is to say, that it was the property of Cowper & Co., citizens of the United States, doing business in Norfolk, Ya. — the court is of the opinion that the cargo was illegally condemned under other provisions of the treaty of 1778.

It appears that the vessel carried a passport or sea letter from the President of the United States, such as was provided for by the treaty, “to the end that all manner of dissensions and quarrels may be avoided and prevented on one side and the other.” (Art. xxv.) The last clause of the article is in these words:

“And if anyone shall think it fit or advisable to express in the said certificate the person to whom the goods on board belong, he may freely do so.”

A previous article (xxiii) declares that free ships make free goods, and that it shall be lawful for citizens, people, and inhabitants of the said United States to sail with their ships with all manner of liberty and security, ‘ ‘ no distinction being-made who are the proprietors of the merchandizes laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King.” It also provides:

“And it is hereby stipulated that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belongingtothesubjectof either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted. It is also agreed in like manner that the same liberty be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.”

These provisions taken together clearly exempted the shipper and the ship from canying evidence of neutrality or ownership of the cargo. The unquestionable intent of the treaty was to reduce the dangerous power of the right of search to a minimum, excepting only from its liberal provisions contraband goods.

The case will be reported to Congress, together with a copy of this opinion.  