
    SCHOONER MARIA. ARTHUR L. HUNTINGDON, Administrator, v. THE UNITED STATES. CHARLES FRANCIS ADAMS, Jr., Administrator, v. THE SAME. EDMOND D. CODMAN, Administrator, v. THE SAME. WILLIAM P. DEXTER, Administrator, v. THE SAME. A. LAWRENCE LOWELL, Administrator, v. THE SAME. WILLIAM VERNON, Administrator, v. THE SAME. FREDERICK O. PRINCE, Administrator, v. THE SAME. ARCHIBALD M. HOWE, Administrator, v. THE SAME. JOSEPH OGDEN, Surviving Partner, v. THE SAME.
    [French Spoliations, 2310, 164, 61, 3744, 1361.
    Decided December 5, 1904.]
    
      On the Proofs.
    
    The tribunal of commerce of Bayonne decrees the seizure illegal and orders the release of the vessel and cargo, with damages and costs against the captors, who appeal. The master compromises the case by paying the captors nearly one-third of the value of the vessel and cargo, and they abandon the appeal.
    I. Where the owners of a captured vessel had the decree of a prize court in their favor to restore the vessel, with costs and damages, and the captors appealed, a compromise whereby the owners paid nearly one-third of the value of the vessel and cargo and the captors abandoned their appeal relieved France from further liability.
    II. It was -the duty of the owners of the captured vessel to appeal in case the judgment of the prize court was against them, and equally to defend the judgment of the court if it was in their favor.
    
      
      The Reporters'1 statement of the case:
    The following are the facts of the case as found by' the court:
    I. The schooner Maria, William Cole, master, sailed on a commercial voyage December 21, 1798, from Salem, Mass., bound for Bilboa, Spain. While peacefully pursuing said voyage she was captured on the high seas on the 24th day of January, 1799, by the French privateers Tiger and Hiron-délle and carried into Sacoa, France. She was libeled before the tribunal of commerce sitting at Bayonne, France, which tribunal, on the 8th day of April, 1799, decreed that said seizure was illegal and ordered the release of the vessel and full return of the cargo to the owners, with damages and costs.
    An appeal was taken by the captors from said decree to the court of appeals at Pau, France. While said appeal was pending the master of the Maria, in consideration of the appeal being dropped, compromised with the captors by paying to them 27-J- per cent of the value of the cargo, vessel, and costs, amounting to the sum of $3,527.38.
    II. The Maria was a duly registered vessel of the United States, of 72£§tons burthen; was built at Salisbury, Mass., in the year 1796, and was owned-by William Homan, a citizen of the United States, but was chartered for said voyage to William Orne, also a citizen of the United States and a resident of Salem, in said State.
    III. The cargo of the Maria consisted of .fish and oil, and was owned by said Wiliam Orne. It was sold in' France for the sum of $9,613.10.
    IV. The losses by reason of the seizure of the Maria and her cargo were as follows:
    Amount paid to obtain release of vessel and cargo-$3,527.38
    V. The loss of William Orne" by reason of said capture was as follows:
    Amount paid for release of vessel and cargo-$3, 527. 38
    Less insurance received- 2,227. 50
    Net loss_ 1,299. S8
    
      VI. By a policy of insurance, underwritten in the office of Peter Chardon Brooks, William Iioman, in his own name, and for the benefit of every other person to whom the same appertained, on the 9th day of February, 1799, insured the Maria in the sum of $2,250, paying a premium of 25 per cent. The policy was underwritten as follows, and the underwriters paid thereon to William Orne, the person to whom the vessel was chartered, the amounts set opposite their names, the same being- a loss of 0.3564 per cent :
    $1,000.00 .Nathaniel Fellows, amount paid on adjustment_$350.40
    850. 00 Samuel Brown, amount paid on adjustment_ 302. 94
    200. 00'James Prince, amount paid on adjustment_ 71.28
    200. 00 Samuel Dexter, amount paid on adjustment_ 71.28
    2, 250. 00
    VII. By a policy of insurance, underwritten in the- office of John Ferrers, William Orne insured the cargo of the Maria in the sum of $5,000, at a premium cost of $577.25. Among others, Coit and Wolsey underwrote on this policy in the sum of $1,000, but failed to pay the same. The other underwriters paid a loss of 0.3564 per cent.
    None of the underwriters on this policy are before the court.
    
      Mr. W. T. 8. Curtis and Mr. C. TV. Clagett for claimants. Mr. Edward Lander was on the brief.
    
      Mr. J. W. Trainor (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This case is peculiar in its facts. The vessel sailed on a commercial voyage on December 21, 1798, from Salem, Mass., bound for Bilboa, Spain; was captured on the high seas by a French vessel on the 24th of January, 1799, and carried into Saco, France; was libeled before the tribunal of commerce at Bayonne, which tribunal decreed that the seizure was illegal and ordered the release of the vessel and cargo with damages and costs against the captors. An appeal was entered by the captors from said decree to the court of appeals, and while the appeal was pending, in consideration that the appeal would not be prosecuted, the matter was settled and compromised, the captain agreeing to pay the captors a sum equal to per cent of the value of the cargo and vessel, and all costs, which was paid, and the vessel and cargo were released and the ship permitted to pursue its voyage.

The vessel belonged to William Homan, a citizen of the United States, but was chartered to William Orne. The cargo, which belonged to Orne, consisted of ñsh and oil, and was sold in France, as shown by the findings.

Homan, the'owner of the vessel, had an insurance on the vessel, payment of which was made by the underwriters as shown in the findings. Orne also had an insurance as shown by the findings.

It is insisted by counsel for the defendants that the facts do not establish a valid claim for indemnity against France, and being none against France no liability attaches to the United States.

It has-been repeatedly decided that the liability of the United States under the statute giving this court jurisdiction depends on the primal and original liability of France; and if a case is deficient in not showing that France was liable diplomatically there can be no consequent liability attaching to the United States.

The findings show that the owner of the cargo, the charterer, was successful in defending his rights before the tribunal of commerce, but in apprehension of the final result or the consequences of delay he compromised the case by paying the captors nearly one-third of the value of the cargo and vessel.

A case very similar in its facts was decided at the last term of this court, the Amiable Matilda (39 C. Cls. R., 138), in which it was held that no liability attached to France because of the seizure in that case. The case of the Amiable Matilda followed the line of the law indicated in the case of the Tom (29 C. Cls. R., 71), where it is in substance decided that it was the duty of the captured party in case of an adverse decision to prosecute an appeal; and. that in France a substantial redress by appeal existed. It is said in the Amiable Matilda (supra), in substance, that the French court having decided 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. As is said in the Tom (supra) : “ The United States are not liable where a claimant having a substantial right of appeal neglected to prosecute it.” 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 when it vyas 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, and therefore the claimants are not entitled to indemnity from the United States.  