
    THE BRIG AMIABLE MATILDA. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. THE UNITED STATES. CHARLES F. ADAMS, Administrator, v. THE SAME. A. LAWRENCE LOWELL, Administrator, v. THE SAME. GEORGE G. KING, Administrator, v. THE SAME. DAVID STEWART AND JOHN E. SEMMES, Receivers, v. THE SAME. HORACE E. HAYDEN, Administrator, v. THE SAME. GEORGE G. MEADE, Administrator, v. THE SAME.
    [French Spoliations,
    511, 939, 1890, 2284, 2674, 4896.
    Decided January 4, 1904.]
    
      On the Proofs.
    
    The Amiable Matilda is captured on the high seas and carried into Bayonne. The civil tribunal orders the restitution of the vessel and cargo. After the decree a payment of 115,792 livres is made to the captors, and the vessel and cargo are thereupon released to the owners. The captors do not appeal from the decree of restitution.
    I. Where a decree of restitution is given by a lower court and the owners of a captured vessel, to avoid delay and expenses incident to an appeal of the captors to a higher court, pay a large sum by way of compromise and to obtain immediate possession of the vessel and cargo, France was not liable.
    II. An obligation rested upon the owners of a vessel illegally seized and condemned to prosecute an appeal; and, conversely, if the captors appealed to l’esist it in the appellate court until there should be a definitive decree by the court of last resort. No obligation rested upon France to make restitution until one or the other of these was accomplished.
    
      The Reporters'1 statement of the ease:
    The following are the facts of the case as found by the court:
    I. The brig Amiable Matilda, William Brown, master, sailed on a commercial voyage on the 2d day of September, 1797, from Philadelphia, bound to Bilboa, in Spain. While in the peaceful pursuit of said voyage, the vessel arrived between St. Ogne and Bilboa at about 8 o’clock in the morning on the 8th day of October, and took a pilot to conduct her into the port of Bilboa. About noon of the same day the French privateer Hardy, of Bayonne, Captain Sarrouble, came from the shore and fired upon her, whereupon the said William Brown hoisted the colors of the United States and lay to in order to learn what was wanted of him. The privateer then fired again and boarded the Amiable Matilda, with twelve or fourteen men armed with swords and pistols, under the command of Captain Sarrouble, who demanded of the said William Brown his ship’s papers. Thereupon the said Brown immediately delivered'to him his róle d’équipage and some other papers. Upon being asked by Sarrouble if he had any other papers, Brown replied that he had, and was ordered to bring them, and went below to look for them in his trunk. Upon his return he found that his róle d’équipage, that had been given by him to Sarrouble in the presence of the whole crew, had disappeared. Upon his asking the said Sarrouble what had become of it, he denied having received it, and upon the said Brown insisting that he had delivered it, Sarrouble replied with ill treatment and insult. He then took possession of the Amiable Matilda for want of a róle d’équipage; robbed her master of his spyglass; and his crew, under his orders, removed various articles, such as salt, provisions, light sails, and sail cloth, and conducted her to St. Juan de Luz, where she was detained several days, exposed to plunder, and her master denied all communication with other persons. The vessel was then carried to Bayonne with her American flag-upside down, in which position it had been hoisted by Captain Sarrouble at the time of her seizure, and had so remained until she arrived at Bayonne.
    At the time of her seizure the Amiable Matilda carried a róle d’équipage, passport, charter party, bill of lading, and register.
    Proceedings were had before the commercial tribunal at Bayonne, and by a judgment of said tribunal said vessel and cargo were ordered to be restored to the owners, it appearing that the privateer who captured her secreted- her róle d’équi-page. No appeal from said judgment was taken by either party.
    On January 27, 1798, on payment of the sum of 115,792.5 livres ly the master of the Amiable Matilda to the captors, said vessel and cargo were released to the owners, but whether said, payment; was made prior to tlie judgment of the commercial tribunal at Bayonne, or subsequent thereto, does not appear.
    II. The Amiable Matilda was a duly registered vessel of the United States of 231f f tons -burden, built at Philadelphia, in the State of Pennsylvania, in the year 1794, and was owned by the firm of Thomas and John Ketland, citizens of the United States.
    III. The cargo of the Amiable Matilda at the date of seizure consisted of cocoa and hides, and was owned by Felix Imbert and the firms of Thomas and John Ketland, and Conyngham, Nesbitt & Co., all of whom were citizens of the United States.
    IV. The losses by reason of the seizure of the Amiable Matilda and cargo were as follows:
    Amount of ransom paid and' expenses incident thereto was livres 115,792.5, equal in money of the United States to_$22,055. 65
    V. The loss to the firm of Conyngham, Nesbitt & Co., was as follows:
    Value of cocoa owned by said firm was livres 188,151.18, and the proportion of loss borne by them on this sum was livres 22,949.2, equal in money of the United States to. $4,371.25
    Premium of insurance paid. 1,400.00
    Amounting in all to. 5,771.25
    Less insurance received. 3, 788.00
    Net loss. 1,983. 25
    The firm of Conyngham, Nesbitt & Co., was composed of David H. Conyngham, J. M. Nesbitt, and James S. Bitehie. David H. Conyngham was the survivor of the firm.
    VI.The loss to the firm of Thomas and John Ketland was as follows:
    Value of vessel and freight owned by said firm was livres 80,000, and the loss borne by them on this sum was livres 9,757.10, equal in money of the United States to.$1,858.57 .
    Value of cocoa owned" by said firm was livres 314,248.16, and the loss borne by them on this sum was livres 38,329.2, equal in money of the United States to. 7,300. 78
    Premiums of insurance paid... 2,930.00
    Amounting in all to. 12,089.35
    Deduct insurance received. 8,183. 38
    Net loss 3,905. 97
    
      The firm of Thomas-and John Ketland was composed of the persons named, residing in Philadelphia. Thomas Ketland was the surviving partner of the firm.
    VII. The loss to Felix Imbert was as follows:
    Value of cocoa and hides owned by him was livres 366,943.8, and the proportion of loss borne by him on this sum was livres 44,756.11, equal in money of the United States to.§8,525.06
    Premium of insurance paid. 300. 00
    Amounting in all to. 8,825.06
    Deduct insurance received.:. 757.60
    Net loss. 8,137.46
    VIII. August 18, 1797, the said firm of Thomas and John Ketland effected insurance on their portion of the cargo in the office of the Insurance Company of the State of Pennsylvania in the sum of $25,000, paying therefor a premium of $1,500.
    July 21, 1798, the said company duly paid to the said assured the sum of $4,620.06, as ancf for the proportion of said loss for which said company was liable.
    - The Insurance Company of the State of Pennsylvania is a corporation duly incorporated under the laws of the State of Pennsylvania, and empowered to engage in the business of marine insurance.
    September 5, 1797, the said firm of Thomas and John Kot-land effected further insurance in the office of the Maryland Insurance Company in the sum of $14,000, paying therefor a premium of $840.
    Juty 16, 1798, the said company duty paid the said assured the sum of $2,599.80, as and for the proportion of said loss for which said company ivas liable.
    September 5, 1797, the said firm of Thomas and John Ket-land effected insurance on said vessel in the office of the Maryland Insurance Company in the sum of $9,000, paying therefor a premium of $630.
    Juty 16, 1798, the said company duty paid the said assured the sum of $963.52, as and for the proportion of said loss for which the company was liable.
    September 6, 1797, the said firm of Conyngham, Nesbitt & Co. effected insurance on their portion of the cargo in the office of the Maiyland Insurance Company in the sum of §20,000, pairing therefor a premium of $1,400.
    
      Thereafter the said company duly paid the said assured the sum of $3,788, as and for the proportion of said loss for which the said company was liable.
    The Maryland Insurance Company was duty incorporated under the laws of the State of Maryland and empowered to engage in the business of marine insurance.
    September 12, 1797, the said Felix Imbert effected insurance on his portion of said goods, in the office of Peter C. Brooks, in the sum of $4,000, paying- therefor a premium of $300, by a policy underwritten by the following persons, citizens of the United States, each in the sum set opposite his name, viz:
    Crowell Hatch. §500
    Caleb Hopkins. 700
    Tuthill Hubbart. 600
    Daniel Sargent... 400
    Nathaniel Fellowes. 800
    Benjamin Bussey. 500
    William Smith. 500
    November 12, 1798, said Peter C. Brooks, as agent, duty paid the said assured the sum of $757.60, as and for the proportion of said loss for which said underwriters were, liable, the same being a loss to each of said underwriters of 18.94 per cent of the amount underwritten by him.
    IX. December 8, 1801, Isaac Rands, administrator of the estate of Caleb Hopkins, in consideration of $3,000 to him paid by Peter C. Brooks and the assumption by the said Brooks of all disadvantages arising from the underwriting of said Hopkins in the office of said Brooks, assigned to said Brooks all the right, title, and interest in and to all insurance done by the said Hopkins in the office of the said Brooks.
    April 4, 1808, E. Partridge and W. Gooch, administrators of Tuthill Hubbart, in consideration of $60,000 to them paid by Peter C. Brooks, and the assumption by the said Brooks of all disadvantages arising from the underwriting of said Hubbart in the office of the said Brooks, assigned to said Brooks all the right, title, and interest in and to all insurance done by the said Hubbart in the office of the said Brooks.
    September 2, 1805, Daniel Sargent, in consideration of $3,000 to him paid by Peter C. Brooks and the assumption by the said Brooks of all disadvantages arising from his underwriting in the office of said Brooks, assigned to the said Brooks all his right, title, and interest in and to all insurance done by him as an underwriter in the office of said Brooks.
    February 15, 1805, Benjamin Bussey, in consideration of §10,000 to him paid by Peter C. Brooks and the assumption by the said Brooks of all disadvantages arising from the underwriting of said Bussey in the office of the said Brooks, assigned to said Brooks all his right, title, and interest in and to all insurance done by him in the office of said Brooks.
    December 16, 1801, William Smith, in consideration of §3,715.50 to him paid by Peter C. Brooks and the assumption by said Brooks of all disadvantages arising from the underwriting of said Smith in the office of said Brooks, assigned to said Brooks all his right, title, and interest in and to all insurance done by him in the office of said Brooks.
    
      Messrs. Curtis <& Piclcett, for the claimants. Mr. Lawrence Lewis, jr., now deceased, was on the brief.
    
      Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Praclt), for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The brig Amiable Matilda, Brown, master, sailed on a commercial voyage on the 2d day of September, 1797, from Philadelphia, bound for Bilboa, Spain. While pursuing said voyage the vessel arrived between St. Ogne and Bilboa at about 8 o’clock in the morning on the 8th of October, and took a pilot to conduct her into the port of Bilboa. About noon of the same day the French privateer Hardy, of Bayonne, Captain Sarrouble, came from the shore with sails and oars and fired upon her, whereupon the master of said vessel hoisted the colors of the United States and lay to in order to learn what was wanted of him. The privateer then fired again, and boarded the vessel with twelve or fourteen armed men under the command of Captain Sarrouble, who demanded of the master the ship’s papers. Thereupon the master delivered to him his role d’équipage and some other papers. Upon being asked by the captain of the'privateer if he had other papers, the captain of the ship replied that he had, and was ordered to produce them; thereupon he went below to look for them. On his return he found that his róle d’équipage, that had been given by him to the captain of the privateer, had disappeared. Upon asking the captain of the privateer what had become of the role d’équipage he denied having received it, and upon Captain Brown insisting he had delivered it,- he Captain Sarrouble, replied with insult and ill treatment. Captain Sarrouble then took possession of the Amiable Matilda for the want of the róle d’équipage, took from the master his spyglass, his crew under his orders,' removed various articles, such as salt, provision, light sails and sailcloth, and ’ conducted the ship to St. Juan de Luz, where she was detained several days, exposed to plunder, and her master denied communication with all other persons. The ship was then,carried to. Bayonne with her American flag-upside down, in which position it had been hoisted by Captain Sarrouble at the time of her seizure and had so remained until her arrival at Bayonne. At the time of her seizure the Amiable Matilda carried her róle d’équipage, passport, charter party, bill of lading, and register.

After the capture of the vessel proceedings were had before the civil tribunal at Bayonne, and by the judgment of said tribunal the vessel and cargo were released, no appeal being-taken by the privateer. It is stated in the observations of the court that “the privateer who captured her secreted her róle d’équipage.” After said proceedings, to wit, January 27, 1798, on the payment of the sum of 115,792.05 livres to the captain of the Hard}? by the captured party, the said vessel and cargo were released to the owners.

In the argument of the case there was spirited contention between counsel representing the parties as to whether the payment of the said sum of money was before or after the rendition of the decree. It was the contention of counsel for the claimant that the payment of said sum was by the way of forced compromise before any proceedings in the civil tribunal, and that such proceedings were resorted to only for the purpose of relieving the ship and its cargo from taint of suspicion and subsequent responsibility. The counsel for the defendants contends that the compromise and payment were subsequent to the decree. The court has given in the findings of fact the record upon which the contention of the parties is based, and, giving that record its reasonable and logical force, the court determines that the probability is that the compromise in which the payment was made took place subsequently to the rendition of the decree of the court, and that the object which induced the compromise upon that basis was to relieve the captured party from the dangers of an appeal which might have been taken by the officers of the privateer.

In the general view which the court has taken in this case it was the du£y of the captured to avail themselves of all practical means of judicial redress. It is therefore immaterial whether the compromise was made before or after the rendition of the decree of the French tribunal. It was insisted that the compromise was the result of duress. The circumstances of the transaction do not indicate that degree of duress which would justify the compromise and payment. As a general rule the captured party is always more or less embarrassed by distressful, circumstances and acts not amounting to what the law deems duress.

It being the inference of the court that the compromise was after the decree, from the construction which the court has given the record, it presents the question as to whether the claimants could thereafter successfully complain against France, not having relied on the decree, but.placing their compromise upon an expediency which relieved them from the dangers of further litigation.

It has been held by this court in the case of The Schooner Dolphin (27 C. Cls. R., 276), in substance, that where it appears in the case of recapture that the owners appealed from the decree of a court of admiralty awarding salvage, but does not appear what was the result of the appeal, the burden of proof is upon the claimants to establish the fact and extent of their loss. The appeal took the vessel out of the operation of the decree.

In the case of The Ship Tom (29 C. Cls. R., 71), it is in' substance decided: Where a right to restitution existed, the owners were bound to assert it and to appeal from an adverse decision if an appellate court was within their reach; and the burden of proof is on the claimant to show that the owners did so. The United States are not liable where a claimant having a substantial right of appeal, at the time of the signature of the treaty, neglected to' prosecute it; in France a substantial redress by appeal existed; in the West Indies there was in most cases no remedy.

The French court having decided the right of the case in favor of the captured parties, it was their duty to stand by that decision if they intended to hold the sovereign of the captors responsible for the seizure. France had done its duty in the rendition of a judgment of release through the medium of its courts, and could not thereafter be put in the wrong by failure of the captured party to stand by the decree of the court.

If it is the duty of the captured to avail themselves of all the practicable means of enforcing their rights by judicial process, it is none the less their duty to avail themselves of all the advantages which they may have gained in the judicial proceedings incident to the seizure of their property.

The payment of the consideration of the compromise, while it relieved them from the danger and expense of an appeal by the captors, released France from all responsibility because of the seizure, and, the defendants’ rights in this proceeding-being the same as those of France, no liability attaches to the United States under the treaty of 1800, and the law of our jurisdiction.

As is said in the Tom case (supra), the United States are not liable where a claimant having a substantial right of appeal neglected to prosecute. Applying that principle to the facts of this case, what is the effect? In this case the claimants had a judgment of the French court in their favor; and if it was their duty amid the circumstances of the case to take an appeal in case the judgment was against them, how much more was it their duty to abide by and defend the judgment of the court where it was in their favor. In legal effect they paid the captors the amount of the compromise in violation of the decree of the court, and by such payment released the claim against France.

No allowance is made, and a copy of the findings and the opinion of the court will be certified to Congress.

Nott, Ch. J., did not sit at the hearing or take part in the decision of this case.  