
    THE SCHOONER NANCY. WILLIAM S. CARTER, Administrator, v. THE UNITED STATES. CHARLES T. LOVERING, Administrator, v. THE SAME. WILLIAM G. PERRY, Executor, v. THE SAME. GEORGE G. KING, Administrator, v. THE SAME. FRANK DABNEY, Administrator, v. THE SAME. ARCHIBALD N. HOWE, Administrator, v. THE SAME. LUCY S. CUSHING, Administratrix, v. THE SAME. CHARLES F. ADAMS, Administrator, v. THE SAME. A. LAWRENCE LOWELL, Administrator, v. THE SAME. FRANCIS M. BOUTWELL, Administrator, v. THE SAME. THOMAS N. PERKINS, Administrator, v. THE SAME. FREDERICK O. PRINCE, Administrator, v. THE SAME. WILLIAM P. DEXTER, Administrator, v. THE SAME. FRANK DABNEY, Administrator, v. THE SAME. H. H. HUNNEWELL, Administrator, v. THE SAME. ROBERT CODMAN, Administrator, v. THE SAME.
    [French Spoliations,
    1118, 3589, 3745, 3338, 1046, 68.
    Decided March 31, 1902.]
    
      On the Proofs.
    
    The Nancy is seized by a French privateer and carried into a river where her hatches are broken open and sundry articles of merchandise taken out and put on board of the privateer. After this she is recaptured by a British ship-of-war and carried into Kingston, where a court of admiralty decrees one-half of the value of vessel and cargo to the recaptors as salvage.
    
      I.The right of search is preliminary to the right of seizure, and the right of seizure depends upon the result of search. Search and seizure are not necessarily illegal, and the presumption being that those rights were legally exercised, the burden is upon a neutral vessel to show that they were improperly exercised.
    II.But a seizure presumptively lawful may be made illegal by the subsequent acts of the captors. The proceedings to condemn a neutral vessel as lawful prize must be in all essentials legal.
    III. It is the duty of the captors to afford to the owners of a neutral vessel all facilities of defense to which they may be entitled and to preserve the res in its original condition, using only such means as are necessary to its protection.
    IV. It is unlawful for the captors to break open the hatches of the neutral vessel and remove merchandise, and to deprive her master of his ship’s papers by carrying them aboard of the capturing vessel.
    V.The proceedings to condemn must be in all essentials legal, and the omission of any important factor vitiates the judgment of condemnation.
    VI.Where the illegality of a seizure is shown, the owners are entitled to recover salvage as indemnity.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The schooner Nancy, William Ward, master, sailed on a commercial voyage from Boston on the 23d day of January, 1799, bound to St. lago de Cuba. While peacefully pursuing- said voyage she was seized on the high seas on or about the 10th dajr of February following, by the French privateer Bencountre, Andrew Caste, commander, but was subsequently retaken by the British vessels Swallow, Argonaut, andAmitié, and carried into Kingston, Jamaica, where the court of vice-admiralty decreed one-half of the value of both vessels and cargo as salvage to bo paid the recaptors, and after deducting the amount of the salvage and the expenses of the proceedings, ]the sum of $2,023.82 was paid over to the owner of the vessel and cargo.
    The facts found by the court are narrated in the protest as follows;
    “The schooner Nancy, of Boston, sailed from Boston on the twenty-second of January, in the year 1799, bound to St. lago, in Cuba, being- perfectly tight, staunch, strong, and in every respect seaworthy and fit for the prosecution of their voyage, and having on board a cargo consisting of brandy, beef, pork, codfish, butter, lard, cheese, raisins, beans, rice, whale oil, and sundry other merchandize; say that they saw the east end of Cuba on the ninth of the month of February, bearing west, and were proceeding for St. lago aforesaid when, on the day after, about six leagues to the eastward of it, they saw a sail bearing west, and soon after they discovered it was a schooner rowing towards them, they having then a calm, and shortly after came up and proved to be a French privateer, mounting two four-pounders, one nine, one swivel, and having on board fifty-five men. She was called the Rencountre, Andrew Caste, master, and belonged to Cape Francois, as they were told. Say that a number of armed men came on board and ordered the master and supercargo on board the privateer, with all their papers, which they refused to return, allowing only the supercargo to take a list of them. On the eleventh the aforesaid privateer rowed the Nancy in a small river called Watenamo, in Cumberland Bay. There they broke open the hatches and took out sundry articles of merchandise, such as beef, pork, raisins, butter, hams, gin, and one trunk of goods belonging to the supercargo and a barrel belonging to the master, and put them on board the privateer, where they were both detained. On the twelfth they discovered two brigs and one schooner in Cumberland Bay, rvhen the privateer towed the Nancy some distance further up the river, and several other articles of merchandize were plundered. On the day after they were again towed further up, and a boat was sent from the privateer to convey the supercargo and master some distance up, and threatening to put them on shore; that several shots were exchanged between the privateer and the aforementioned schooner, which returned down the river, on which day a barrel of shoes belonging to the master was taken; say that the master and supercargo were ordered to return to their vessel, and all the Frenchmen wrere taken out; that they demanded their papers and were told by the captain of the privateer that they were up the river in his trunk. On the fourteenth the two brigs began to proceed up the river, and at eight a. m. of the same da}T the Frenchmen came on board the Nancy and took out two iron and four wooden guns and carried them on shore, with all their powder, and erected a small fort; that they again demanded their papers and received the same answer as before. On the fifteenth, one of the brigs being nearly within gunshot of the privateer, the captain of her ordered these deponents to haul the Nanc\r further off the shore, as he was going to set fire to his vessel, which was accordingly done, and they went on shore and again demanded the papers, and was told that they wore still up the river, but should be sent them by a Spaniard; say that they dispatched two men for them in company with some of the Frenchmen, who were told they were burnt on board the privateer by the neglect of the clerk not taking them out. A short time after several boats came from the brigs and schooners, which proved to be the brig Swallow, commanded by Archibald McFee; the brig Argonaut, commanded by Raymond Bayonne; and schooner l’Amitié, Anthony Feraud, master, who took possession of the Nancy and began to haul her down the river, and told them they were to be sent to Jamaica, On the eighteenth some people from the brigs came on board and towed her into the bay, where a prize master and some men were put on board, and the supercargo, the mate, and three of the crew were ordered on board the Argonaut, leaving the master and two men on board the Nancy; and about two o’clock a. m. of the nineteenth they all sailed together from Cumberland Bay bound to Kingston, in this island, and on the twenty-first of the same month arrived at Port Royal.
    II. The Nancy was a duly registered vessel of the United States of 93f| tons burden, built at Milton, Mass., in the year 1795, and was owned solely by William Smith, a citizen of the United States, residing in Boston.
    III. The cargo of the Nancy consisted of brandy, beef, bacon, beans, and other provisions, and was owned by said William Smith, the owner of the vessel.
    William Ward and Edward Cruft, citizens of the United States, also had small adventures on the Nancy at the time of capture.
    IV. The losses to the different claimants by reason of the capture of the Nancy were as follows:
    The value of the vessel. §3,500.00
    Freight earnings. 1,555. 55
    Cargo, owned by William Smith. 9,196.00
    Adventure of William Ward. 494.73
    Adventure of Edward Cruft. 2,500. 00
    Premiums of insurance paid. 3,399.00
    Amounting in all to. 20, 645.28
    V.The losses to said William Smith by reason of said capture were as follows:
    The value of the vessel.§3,500.00
    The freight earnings. 1,555.55
    The value of the cargo... 9,196.00
    Premiums of insurance paid. 2, 760.00
    Amounting in all to 17, Oil. 55
    
      Less insurance received.$12,914.34
    Less amount received from sale after deducting pro portion' thereof paid to Edward Cruft, to wit, $450.13 . 1,573.69
    -$14,488. 05
    Leaving net loss to William Smith. 2,523.50
    VI. January 19,1799, said Edward Cruft effected insurance in the office of Joseph Taylor, at Boston, in the sum of $2,570, viz. §1,570 on goods, being his adventure, and §1,000 on his commissions as supercargo, paying therefor a premium of 20 per cent by a policy underwritten by the following persons, all of whom were citizens of the United States, each in the sum set opposite his name, viz:
    Francis Green. $500
    Samuel W. Pomeroy. 750
    Nicholas Gilman. 750
    James Scott. 300
    Jacob Sheafe. 270
    August 24, 1799, said Taylor, as agent, duly paid the said assui’ed the sum of §2,049.98 as and for a partial loss by reason of the premises, the same being a loss of 79.766 per cent to each of said underwriters. On this policy there was a total loss of §1,000 on commissions and §1,049.98 on the adventure of said Cruft, he having received a return of §450.13 as his share of the proceeds of the sales of said cargo after the paj*ment of salvage. The loss to each underwriter was as follows, viz:
    Francis Green. $398. 83
    Samuel W. Pomeroy. 598.24
    Nicholas Gilman. 598.24
    James Scott... 239.30
    Jacob Sheafe. 215.37
    Total... 2,049.98
    January 22, 1799, said William Smith effected insurance in the office of Peter C. Brooks on said vessel and cargo in the sum of §12,000, being §2,500 on the vessel and §9,500 on the cargo, paying therefor a premium of 20 per cent, by a policy underwritten by the following persons, all of whom were citizens of the United States, each in the sum set opposite his name, as follows:
    Nathaniel Fellowes .. §2,000
    Benjamin Bussey... 1,000
    Benjamin Cobb.. 500
    David Greene ...... 1,000
    John C. Jones.. 600
    James Prince. 500
    Samuel Dexter. 500
    Samuel W. Pomeroy 1,000
    John Welles. 500
    Tuthill Iiubbart_ 1,000
    Daniel Sargent. 800
    William Gray, jr .... 1,000
    John I. Clark.. 1,000
    Caleb Hopkins. 600
    September 18, 1799, said Brooks, as agent, duly paid the said assured the sum of $9,914.34 as and for a partial loss by reason of the premises. The said vessel, however, was bought in at the sale under the decree of the court of vice admiralty and abandoned to the underwriters, and the same was after-wards sold for their benefit for the sum of $2,507.60, making the final loss to said underwriters the sum of $7,406.74 on vessel and cargo, the same being a loss of 61.723 per cent of the amount underwritten by each of said underwriters, as follows, viz:
    Nathaniel Fellowes. §1,234.47
    Benjamin Bussey. 617. 23
    Benjamin Cobb. 308.61
    David Greene. 617.23
    John C. Jones. 370.34
    James Prince. 308.61
    Samuel Dexter. 308. 61
    Samuel W. Pomeroy. 617.23
    John Welles. 308. 61
    Tuthill Iiubbart. 617.23
    Daniel Sargent. 493. 78
    William Gray, jr. 617. 23
    John I. Clark ....'. 617.23
    Caleb Hopkins. 370. 33
    Total. 7,406. 74
    January 18, 1799, said William Ward effected insurance on his adventure in the office of Peter C. Brooks in the sum of $500, paying therefor a premium of 25 por cent, by a policy underwritten in that sum by .said Tuthill Hubbart.
    July 22, 1799, said Brooks, as agent, duly paid the said assured the sum of $484.50 as and for a loss arising on this policy by reason of the premises.
    February 12, 1799, said William Smith effected insurance on the freight of said vessel in the office of Peter C. Brooks in the sum of $3,000, paying therefor a premium of 12 per cent, by a policy underwritten by the following persons, all of whom were citizens of the United States, each in the sum set opposite his name, viz:
    Matthew Bridge. §500
    Benjamin Cobb. 500
    Benjamin Ilomer. 500
    Daniel D. Rogers. 500
    Benjamin Sumner. 500
    Stephen Gorham. 500
    September 18, 1799, said Brooks, as agent, duly paid the said assured the sum of $3,000 as and for a total loss by reason of the premises.
    April 4, 1808, Tuthill Hubbart, in consideration of $60,000 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    November 23, 1804, Matthew Bridge, in consideration of $3,180.37 to him paid by Peter 0. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the said Brooks, assigned to the said Brooks all his right, title, and interest in and to all insurance done b}T him as an underwriter in the office of the said. Brooks.
    July 23, 1805, Benjamin Homer, in consideration of $5,000 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and 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 ■the said Brooks.
    
      October 19, 1804, Daniel D. Rogers, in consideration of §3,400 to him paid by Peter C. Brooks, and the assumption byr the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    February 1, 1804, Benjamin Sumner, in consideration of §600 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    November 21, 1801, Stephen Gorham, in consideration of §2,986.65 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the 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 and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    December 23, 1801, David Greene, in consideration of §6,000 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    December 8, 1801, the administrator of Caleb Hopkins, a certified copy of whose letters are on file, in consideration of §3,000 to him paid bj1- Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from the underwriting of said Caleb Hopkins in the office of the said Brooks, assigned to the said Brooks all the right, title, and interest in and to all insurance done by said Hopkins as an underwriter in the office of the said'Brooks.
    September 2, 1806, Daniel Sargent, in consideration of §3,000 to him paid by Peter C. Brooks, and the assumption by the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    March 21, 1804, John I. Clark, in consideration of §3,000 to him paid by Peter C. Brooks, and the assumption bjr the said Brooks of all and any liabilities and disadvantages arising from his underwriting in the office of the 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 the said Brooks.
    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 they are the same persons who suffered loss by the seizure and condemnation of the Nancy, as set forth in the preceding findings.
    
      Mr. W. T. 8. Curtis and Mr. O. W. Clagett for the claimants. Mr. George 8. Boxdwell and Mr. Edward Lander were on briefs.
    
      Mr. Charles TP Russell (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The schooner Nancy, William Ward, master, sailed on a commercial voyage from Boston on the 23d day of January, 1799, bound to St. lago de Cuba. While peacefully pursuing said voyage she was seized on the high seas on or about the 10th day of Februaiy following, by the French privateer Rencontre, Andrew Caste, commander, but was subsequently recaptured by the British vessels Swallow, Argonaut, and Amitie, and taken to Kingston, Jamaica, where the court of vice-admiralty decreed one-half the value of both the vessel and cargo as salvage, to be paid to the recaptors.

The Nancy was a duly registered vessel of the United States of 93f tons burden, built at Milton, Mass., in the year 1795, and was owned solely by William Smith, a citizen of the United States residing in Boston. The vessel and cargo were abandoned to the insurer as a total loss, and there is no claim filed in behalf of the owner of the vessel or cargo, the cargo also belonging to the owner of the vessel, but a claim is made on the part of several insurers who issued policies of insurance on the vessel and cargo, and who, in consequence of the capture and condemnation for salvage, paid to the owner of the vessel and cargo the full amounts of the respective policies, deducting 2 per cent therefrom.

The seizure was made by the French privateer on the 10th day of February, 1799, when war was flagrant between France and Great Britain and after the abrogation of the treaty which had been entered into upon the part of the United States with the Government of France of 1778, denominated Treaty of Amity and Commerce (8 Stat. L., 12).

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 necessarity 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 property made. If, upon 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. If the seizure was made in a lawful manner, and if no illegality is shown to have existed in what the French privateer did afterwards, then no ground for recovery exists founded on seizure alone. The liability of France depends upon what it did, and not being a party to the proceeding-in which the decree of salvage was made France is not bound by the legal effects of that decree, except as a mere measure of the damages suffered by the owners of the vessel. The liability of the United States in this proceeding is measured by the liability of France, and if no facts are shown which would make France liable (if this was a proceeding against France), then no liability-attaches to the United States under the treaty of September 30, 1800.

But the case does not stop with the mere seizure of the vessel. After the capture by the French privateer the Nancy was taken up a small river connected with Cumberland Bay, and while in the possession of the French the hatches of the vessel were broken open and sundry articles of merchandise, such as beef, pork, raisins, butter, hams, and gin were taken out, and also one trunk of goods belonging to the supercargo and a barrel belonging to the master, which were put on board the privateer; after the discovery of the brigs and schooner which recaptured the Nancy she was taken farther up the river and several other articles of merchandise were taken from her; the crew were taken out of the vessel, whereupon the captain demanded his papers, which were then in the possession of the captain of the privateer. On the 14th day of February, following the capture, the French took from the Nancy two iron and four wooden guns and carried them on shore with all their powder and erected a fort. The master again demanded the papers and received the same answer as before. After again demanding the papers they were told by the French that they had been burned on board the privateer by the neglect of the clerk not taking them out.

After these spoliations upon the part of the French in charge of the captured vessel she was recaptured from the French by the British vessel, as shown in the findings.

Upon the capture of the American vessel, it was the duty of the officers in charge of the French privateer, immediately to close and seal her hatches and with reasonable dispatch to take the American vessel into port and institute judicial proceedings to determine the lawfulness of the capture, affording the captain and crew of the American vessel every facility to defend their vessel in such proceeding.

Incident to that obligation, it was the duty of the officers and crew of the French vessel to preserve in tact the American vessel and its cargo pending judicial proceedings, thereby preserving without diminution or destruction the property seized, so that in case of a decree in favor of the American owners the vessel might be restored with no other damage than the delay, for which remuneration might be made, if in the opinion of thé court no probable cause existed for the seizure.

The findings show, that a considerable portion of the cargo was taken from the Nancy by the crew of the French privateer; that the vessel was despoiled in many particulars by the acts of the French, and that the papers were burned on board of the privateer “by the neglect of the clerk in not taking them out.”

Whatever may have been the character of the capture, either legal or illegal, the acts of the French crew while in possession of the Nancy before its capture by the English vessel were in violation of all the rights of the captured part}r, and the transaction, taken as a whole, was in violation of the rules of international law, and therefore a liability attached to the Government of France. The effort to condemn as lawful prize must bo in all its essentials legal, and the omission of any important factor vitiates the proceeding as a lawful proceeding, as was held in the case of the Nancy, Wells, master (37 C. Cls. R., 74). Even though there maybe a legal seizure, it is the duty of the seizing vessel to follow such legal seizure by affording to the captured party all facilities of defense to which he may be entitled. The proceeding is a proceeding in rem, and it is the duty of the party seeking a condemnation to preserve the res in its original shape, using only such means as are necessary to its protection. The acts of the captors after capture being in violation of their duty, the court decides, upon the whole case, that the insurers had a valid claim for indemnity upon the French Government prior to the ratification of the treaty of September 30, 1800, and that they are entitled to recover, as shown in the conclusion of law, being a certain per cent paid by each underwriter on the amount underwritten by him.

The conclusions of fact and conclusions of law, with a copy of the opinion, will be reported to Congress.  