
    THE SCHOONER ATLANTIC. WILLIAM WOODBRIDGE, Administrator, v. THE UNITED STATES. HERBERT ALMY, Administrator v. THE SAME. THE NEWPORT INSURANCE COMPANY v. THE SAME.
    [French Spoliations,
    4446, 4447, 4449.
    Decided December 2, 1901.]
    
      On- the Proofs.
    
    The vessel and cargo are condemned in May, 1799, on the ground that “a part of the cargo mis horses which by the terms of the ktvj are objects of contraband.” The treaty with France 1778 declared horses to be contraband, Imt Congress abrogated it by the Act 7th July, 1798. The French Government declared that it should continue to govern the international obligations of France and the United States.
    L After the abrogation of the Treaty with France, 6th February, 1778 (8 Stat. L., art. 24) by the Act 7th July, 1708 (1 Stat. L., 578), the international obligations of France must lie determined by the law of nations.
    II. By the law of nations at the close of the eighteenth century the act of carrying to a belligerent articles which were material of war was regarded as a wrong for which vessel and cargo were liable to condemnation. But as to articles applicable to use in peace or war, it was a matter of controversy whether they should always be deemed contraband, or whether the intended use might be inquired into and determined by the circumstances.
    
      III. The preponderance of authority at the end of the eighteenth century was that horses were presumptively contraband and that a shipment to the port of a belligerent was presumptively for military purposes.
    IV. The mere presence of a contraband article on board without proof or indication that the owners knew the vessel was carrying contraband would justify only seizure of the article. But if a substantial part of the cargo (e.r </r., 38 horses) was contraband the presumption was that the cargo was to aid a belligerent.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The schooner Atlantic, George Howe, master, sailed on a commercial voyage from Stonington, Conn., on the 26th day of April, 1799, bound for Tobago. While pursuing said voyage she was captured on the high seas by the French privateer La Resolute, Captain Hubert. On the 25th day of May, 1799, the Atlantic and her cargo were condemned by the tribunal of commerce and of prizes sitting at Basse-Terre, Guadeloupe. The grounds of condemnation set forth in the decree are as follows:
    First. That a part of the cargo was horses, which bj' the terms of the law are ob]ccts of contraband.
    Second. That the sea letter or passport was not regular.
    Third. That the captain did not have a róle d’équipage.
    II. The Atlantic was a drily1" registered vessel of the United States, of 85-J-f tons burthen, was built at Stonington, Conn., in the year 1791, and was owned bjT Thomas Butler and George Howe, both citizens of the United States.
    No claim has been filed on behalf of said Howe.
    III. The cargo of the Atlantic consisted of provisions and 38 horses, and was owned Thomas Butler, George Howe, and the firm of Stiles Phelps & Co., consisting of Stiles and Charles Phelps, all citizens of the United States.
    It appears that 6 of said horses were lost overboard prior to the capture and condemnation of said vessel and cargo.
    IV. The losses by reason of the capture and condemnation of the Atlantic were as follows:
    The value of the vessel. §3,000.00
    The value of the cargo condemned. 4,385.23
    
      The freight earnings for the voyage. 31,416. 66
    The premiums of insurance paid. 1,210.00
    Amounting in all to. 10,011.89
    Y. The Newport Insurance Company, a corporation duly organized and existing under the laws of the State of Rhode Island, by policy No. 27, dated April 24,1799, insured Thomas Butler and George Howe, on said vessel, in the sum of $1,500, at a premium cost of $375.
    Thereafter, on the 20th day of September, 1799, said insurance company paid to said Thomas Butler, on behalf of himself and George Howe, the sum of $1,500 as and for a total loss.
    Said insurance company, b}" said policy No. 27, dated April 24, 1799, insured the owners of said cargo in the sum of $3,800, at a premium cost to them of $835.
    Thereafter, on the 20th day of September, 1799, said insurance company paid to said owners of the cargo the sum of $3,800 as and for a total loss.
    A portion of the premium of insurance on the cargo and of the sum of money paid the owners of the cargo by said company ivas upon the 6 horses lost overboard, as will hereinafter more fully appear.
    YI. Case No. 4447. Thomas Butler was the owner of one-half the vessel and one-third the cargo.
    His losses were as follows:
    One-half value of vessel. 31,500. 00
    One-half freight earnings for the voyage. 708. 33
    One-third value of cargo. 1, 621.11
    One-half premium of insurance on vessel... 187.50
    One-third premium of insurance on cargo. 278.33
    Amounting in all to... 4,295.27
    Less insurance received on vessel. §750.00
    Less insurance received on cargo. 1,266. 66
    Less one-third value of 6 horses lost overboard, at S79 per head. 158.0Ó
    Less one-third premium of insurance on said 6 horses, insured at the rate of §60 per head, premium 20 percent . 24.00
    -2,198.66
    Leaving a net loss of.:. 2,096.61
    
      VIL Caso No. 444:6. Stiles and Chax-les Phelps, who composed the partnership of Stiles Phelps & Co., were the owners of one-third of the cargo. Stiles Phelps was the surviving member of said firm.
    Their losses were as follows:
    One-third value of the cargo. §1, 621.11
    One-third premium of insurance on cargo. 278. 33
    Amounting in all to. 1, 899.44
    Less one-third value of 6 horses lost overboard, at §79 per head.- §168.00
    Less insurance received on cargo. 1,266.66
    Less one-third premium of insurance on 6 horses, insured at the rate of $60 per head, premium 20 per cent. 24. 00
    - 1,448.66
    Leaving a net loss of. 450. 78
    VIII. Case No. 4:449. The Newport Insurance Company, a corporation duly organized and existing under the laws of Rhode Island, insured the owners of the vessel and cargo as set forth in finding numbered V.
    Its losses were as follows:
    Insurance paid on vessel. §1,500. 00
    Insurance paid on cargo. 3, 800. 00
    Amounting in all to. 5,300.00
    Less the value of 6 horses, insured at the rate of 860 per head, lost overboard. 360.00
    Leaving a net loss of. 4,940.00
    IX. The claimants herein have produced letters of administration upon the estates of the parties for whom they appear, and have otherwise proved to the satisfaction of the court that the persons for whose estates they have filed claims are in fact the same persons who suffered loss by the seizure and condemnation of the schooner Atlantic, as set forth in the preceding findings.
    
      Mr. Edward lander and Mr. Charles W. Clagett for the claimants.
    
      Mr. Charles W. Bussell and Mr. J. W. Trainer (with whom was Mr. Assistant Attorney-General Eradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

The vessel and cargo were captured and condemned in May, 1799. The ground of the condemnation material to be considered appears from the decree to have been that a part of the cargo consisted of horses “ which by the terms of the law are objects of contraband.”

The treat}’- with France of February 6, 1778 (8 Stat. L., art. 24), declared horses to be contraband. But that treaty was abrogated by the act of Congress of July 7, 1798, in the face of the French decree of 11 Nivose, year 3, repealing the order of May 9,1793, declaring that the treaty should govern France notwithstanding the conduct of England. So the matter in issue here, though intended to be settled by that treaty, became open to determination according to the usage of nations and the rules of international law. According^, the question is presented for the first time in the history of this litigation whether horses were contraband' per se under the law of nations at the time of the seizure, and if so, to what extent knowledge on the part of the shipowner of the presence on board of contraband articles involved the other part of the cargo and the ship.

Writers on international law are agreed that the act of carrying to an enemy articles directly useful in war is a wrong for which the injured party may punish the neutral taken in the act. But difficulties arise in defining what articles are contraband. Text writers' answer the inquiry variously. But it would appear to be the almost unanimous opinion of elementary writers and the declarations of prize ordinances that articles or material which by their nature are fit to be used in war come within the classification. The difficulty commences in attempting to reconcile the conflicting authorities respecting those articles equally applicable to use in time of peace as well as in time of war, and the consequences arising from the circumstances of transportation and capture growing out of the fluctuating usages of nations and texts of various conventions designed to give to those usages the fixed form of positive law.

The principal point in dispute is as to articles deemed to be of ambiguous or uncertain use when in the enemy’s country and in time of war. One class of writers contends for an absolute rule that all articles are of such description. Another class contends that as to such articles, inquiry may be made into the circumstances of their presence for the purpose of determining- their probable use in the particular instance. The latter rule was unquestionably the British doctrine, recognized in her treaties, stated by her text writers, accepted by her statesmen, and enforced by her prize courts. Thus, provisions mig'ht become contraband according to the circumstances of their destination and intended use. (Halleck’s Int. L., 587.)

Parsons defines contraband, as settled by the practice of maritime nations, as “a trade with a belligerent, intended to provide him with military supplies, equipments, instruments, or arms.”

Great maritime powers, when engaged in war, have enlarged the list, and nations generally neutral have contracted it.

Grotius divides all articles of trade into three classes, to wit: Implements and material which, by their nature, are suitable to be used in war; articles of taste and luxury, useful only for civil purposes; articles which are of indiscriminate use in peace and war. Articles of the first class have always been considered contraband; those of the second class never; while those of the third class contraband according to the particular circumstances of war. Little objection has been made, says Halleck, to the foregoing classification, but it leaves the entire difficulty unsettled, as the question immediately arises with respect to what articles are to be assigned to each class and under what particular circumstances articles of the third class become subject to capture as contraband. (Halleck’s Laws of War, 577.)

An ancient ordinance of marine, dating as far back as 1681, provided that—

“Arms, powder, bullets, and other munitions of war, also horses and their furniture, which shall be transported for the use of the army, shall be confiscated on whatever vessel found and to whatever person they belong, whether subjects or aliens.” (Art. 2 of title 9, book 3, Ord. of Mar.)

Out of the mass of learning gathered b3r the commentators and rules announced from the bench from time to time, the weight of authority preponderates for the proposition that at the time of the seizure of the Atlantic, horses were presumptively considered contraband according to the usage of most nations. Certainly, according to the understanding between this country and France, as far as it may be said any understanding existed between the two countries on the subject at that time, they were so considered.

The schooner was a vessel of only So tons burden, and there were 38 horses on board. They constituted a large part of the cargo. Tobago wras one of the West Indies group of islands. Whether it was a port of naval or military equipment is not clear; but it was a part of the United Kingdom, then at war with France. Aside from any absolute rule, the presumption must be, in the absence of proof, that such a shipment was destined for the military use of the belligerent adversary.

The mere presence of a contraband article on board ship as an incident of the voyage, without proof or circumstances sufficient to justify the belief that the shipowners or their agents knew they were carrying contraband in violation of the laws of neutrality, will justify seizure and withdrawal of the contraband article alone. If a substantial part of the cargo consists of contraband articles or materials, such articles or materials are not only liable to seizure, but the presumption arises that the voyage was undertaken in violation of the duty of a neutral and with intent to aid the belligerent adversary.

The great weight of authority is that knowledge on the part of the shipowner of the presence on board of contraband articles, or conduct on the part of officers of the ship showing that they knew of the presence of such articles, involves the whole ship. (Desty’s Ship and Adm., sec. 425; Kent’s Com., Vol. I, 143; Halleck on Int. L., 572; Hall’s Int. L., 693; Walker’s Int. L., 512; Am. and Eng. Encl. of Law, Vol. II, 476.)

France being justified in seizing the Atlantic and condemning the cargo and the vessel, a claim did not arise against that Kepublic.

It is ordered that the conclusions of the court be reported to Congress.  