
    THE BRIG BETSEY. CHARLES F. ADAMS, Administrator, v. THE UNITED STATES. GEORGE G. KING, Administrator, v. THE SAME. GEORGE G. KING, Administrator, v. THE SAME. SETH N. GAGE, Administrator, v. THE SAME. ROBERT COIT, Administrator, v. THE SAME. BENJAMIN M. HARTSHORNE and CHARLES N. BLACK, Executors, v. THE SAME.
    [French Spoliations,
    906, 1891, 1892, 2850, 4037.
    Decided May 2, 1904.]
    
      On the Proofs.
    
    The brig Betsey clears from New London, Conn., for a neutral port. This is a false destination. Instead of p,-oceeding to a neutral port she goes to a belligerent port and sails thence to another belligerent port under convoy of a British ship of war. A large part of her cargo consists of horses, which, if intended for a neutral port, are innocent cargo, but if intended for a belligerent port are contraband.
    I. The provisions of the Treaty with France, 1778 (Public Treaties, p. 203, limiting both parties to the right to remove contraband without forfeiture of the vessel, can not be extended to shield a fraudulent transaction.
    II. Where a vessel carrying horses cleared for a neutral port when in fact sailing for a belligerent port, it was a fraudulent attempt to prevent France from seizing the horses as contraband, and the • vessel became liable to seizure and condemnation.
    
      The Reforters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The brig Betsey, Zebulon P. Burnham, master, sailed on a commercial voyage on or about the 31st day of October, 1797, clearing from New London, Conn., for St. Croix, a Danish and neutral port, the same being a false destination. Instead of proceeding to St. Croix she went to Mole St. Nicholas, a belligerent port in possession of the English, and from there sailed for Jeremie, another belligerent port in possession of the English, under convoy of a British ship of war. .On the 25th of November, 1797, she was captured at a point 1,300 miles west of St. Croix by the French privateer Pauline, Captain Even, and carried into Gonaives and condemned by the French tribunal of prizes sitting at the Cape, whereby both vessel and her cargo became a total loss to the owners.
    A part of the cargo consisted of 40 horses, which were contraband under the treaty with France of 1778, if intended for delivery at a belligerent port, and which was the ground for condemnation by the French court.
    II. The Betsey was a duly registered vessel of the United States of 133 f-g- tons burthen, built in the State of Connecticut in the year 1793. She was owned three-fourths by Elijah House and one-fourth by Pember Caulkins, citizens of the United States, residing in said State of Connecticut.
    III. The cargo of the Betsey consisted of horses and provisions ,and was owned solely by said Elijah House, with the exception of $830 in value thereof, which belonged to Capt. Zebulon P. Burnham and Capt. Gurdon Bill, whose estates are not represented in this case.
    IV. The losses by reason of the capture and condemnation of the Betsey and her cargo were as follows:
    The value of the vessel_$4, 009. 70
    The freight earnings_ 2,223.70
    The value of the cargo- 7, 258. 02
    Premium of insurance-.- 1, 850. 00
    Burnham and Bills, adventure_■_ 830. 00
    Premium of insurance paid on adventure._ 240. 00
    Amounting in all to-17, 071.42
    Y. The loss to said Elijah House by reason of said capture and condemnation was as follow's:
    Three-fourths value of vessel_$3, 502.27
    Three-fourths value freight earnings_ 1, 067. 77
    Value of cargo_ 7, 258.02
    Six-sevenths premium of insurance paid_ 1, 585. 70
    Amounting in all to_14,013. 76
    Less insurance received_ 6,116. 58
    Leaving net loss to him of_ 7, 897.18
    
      VI.The loss to said Pember Caulkins was as follows:
    One-fourth value of vessel_$1,167. 43
    One-fourth freight earnings- 555. 93
    One-seventh premium of insurance paid- 264. 30
    Amounting in all to_ 1, 987. 66
    Less insurance received- 1, 019. 42
    Leaving net loss to him of- 968. 24
    VII.Elijah House caused insurance to be effected on said vessel and cargo in the office of Peter C. Brooks by a policy dated December 15, 1797, in the sum of $4,000, at the premiums of 80 per cent on $1,000, 25 per cent on $1,000, and 15 per cent on $2,000. Said policy was underwritten as here shown:
    David Greene_ $800
    Crowell Hatch-800
    Nathaniel Fellowes 800
    Tuthill Hubbart 600
    Joseph Blake_ 500
    Caleb Hopkins-500
    On April 30,1798, the said Brooks duly paid to said Elijah House the sum of $4,000, as and for a total loss by reason of the premises.
    VIII.Capt. Zeb. P. Burnham and Capt. Gurdon Bill, being the owners of certain property on board said vessel, effected insurance thereon in the office of Peter C. Brooks in the sum of $830,-at a premium of 30 per cent ($700 on account -of Captain Burnham and $130 on account of Captain Bill), by policy dated November 14, 1797, the said policy being underwritten as follows:
    Crowell Hatch_$430
    Nathaniel Fellowes- 400
    On May 3, 1798, the said Brooks duly paid to David Greene, agent of the assured, the said sum of $830 as and for a total loss by reason of the premises.
    Elijah House also effected insurance on said vessel and cargo in the office of Winthrop & Lewis, in New York City, in the sum of $4,000, at an estimated premium of 25 per cent, by policy dated November 14, 1797, said policy being underwritten as here shown by ITartshorne, Rhinelander & Co., or Rhinelander, Iiartshorne & Co., in the sum of $3,200, and others to the balance of $800.
    On February 20, 1798, the said Rhinelander, Hartshorne & Co. duly paid said Elijah House the sum of $3,136, being the full amount of the sum underwritten by them, less an abatement of 2 per cent.
    IX. 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 liabilities and disadvantages arising from the underwriting of said Hubbart 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 Hubbart as an underwriter in the office of said Brooks.
    December 23, 1801, David Greene, in consideration of $6,000 to him paid by Peter C. Brooks, and the assumption 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.
    December 8, 1801, Isaac Rands, administrator of Caleb Hopkins, in consideration of $3,000 to him paid by Peter C. Brooks and the assumption by the said Brooks of any and all liabilities and disadvantages arising from the underwriting in the office of the said Brooks by the said Caleb Hopkins, assigned to the said Brooks all the right, title, and interest in and to all insurance done by the said Hopkins as an underwriter in the office of said Brooks.
    
      Mr. George A. King and Mr. W. T. S. Gurtis for the claimants.
    
      Mr. John W. Trainer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Per Curiam:

The court is of the opinion that the provisions of the treaty with France of 778 (Public Treaties, p. 203, arts, xxm, xxiv, and xxvii can not be extended to a fraudulent transaction. If this vessel was bound to a neutral port, the 40 horses on board were innocent cargo, and she was not subject by the terms of the treaty to search and detention by French cruisers. If she was sailing to a belligerent port, the 40 horses were contraband, and, by the terms of the treaty, France had a right to seize and remove from her the contraband portion of the cargo. Her sailing, in fact, to a belligerent port under a false destination must have been designed to deprive France of her lawful right to seize the contraband on board and was a fraudulent transaction, which the treaty was, not intended to cover or protect. The owner of the vessel was the owner of the cargo. In the opinion of the court the claimants have no right to indemnity.  