The Pizarro — 15 U.S. 227

Majority — Story J.

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Syllabus

(prize.)

The Pizarro —Hibberson and Yonge, Claimants.

If the court below deny an order for farther proof when it ought to be granted, or allow it when it ought to be denied, and the objection is taken by the party, and appears on the record, the appellate court can administer the proper relief.

But, if evidence in the nature of farther proof be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent, and the irregularity is waived.

Concealment, or spoliation of papers, is not, per se, a sufficient ground" for condemnation in a prize court. It is calculated to excite the vigilance and justify the suspicions of the court; but is open to explanation : and if the party,' in the first instance fairly, frankly, and satisfactorily explains it, he is deprived of-ho right'to which he is otherwise entitled. If, on the contrary, the spoliation is unexplained, or the explanation is unsatisfactory; if the cause labour under heavy suspicions, or gross prevarications; farther proof is denied, and condemnation ensues from. defects in the evidence which the party is not permitted to supply.

Under the Spanish treaty of 1795, stipulating that free ships shall make free goods, the want of such a sea letter or passport, or such certificates as are described, ja the 17th article, is not a substantive ground of condemnation. ' It only authorizes capture and sending in for adjudication, and the proprietary interest in the shin may be proved by other equivalent testimony. But iff upon the original evidence, the cause appears extremely doubtful and suspicious, and farther prooi is necessary, the grant or denial of it rests on the same general rules which govérm the discretion of prize courts in otl:°" cases.

Thqterm “ subjects,” in the 15th article, when applied to person owing' allegiance to Spain, must bo construed in the same sense as' the term citizens,” or “ inhabitants,” when applied to persons owing allegiance to the United States, and extends t.o all persons domiciled in the 3panish dominions.

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The Spanish character of the ship being ascertained, the proprietary interest of the carga cannot be inquired into, unless so far as to as* certain that it does not belong to citizens of the United States, whose property, engaged in trade with the enemy, is not protected by the treaty.

Appeal from the circuit court of the district of Georgia.

The ship Pizarro, under Spanish colours, was captured on the 23d of July, 1814, by the private armed schooner Midas, Alexander Thompson, commander* on a voyage from Liverpool to Amelia island, and. brought into the port of Savannah for adjudication. Prize proceedings were instituted in the district court of Georgia against the ship and cargo,, and a claim was duly interposed by Messrs. Hibberson and Yonge,. merchants, of Fernandina, Amelia Island^ for the ship and cargo, as their sole and exclusive property. Upon the final' hearing in the district court, the ship and cargo were decreed to be restored, and this decree was, upon an appeal to the circuit ipourt, affirmed; and from the decree of the circuit court the cause was brought by appeal to this court..

IV appears from the evidence, that during the Voyage a package, containing papers respecting the cargo, directed to Messrs. Hibberson . and Yonge, was thrown overboard by the advice and assent of the master and supercargo. The reason alleged for this proceeding is, that they were then chased by a . schooner, which they supposed to be a Carthaginian privateer.' The ship’s documents, however, were

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retained, in which her Spanish character is distinctly asserted. "

_ These documents were as follows: 1. A certificate of the Spanish consul at Liverpool, dated the 11th of September, 1813, certifying that the Pizarro was a Spanish ship, bound to Corunna. 2. A certificate from the same, of the same date, that Messrs. Hughes and Duncan had shipped 250 tons of salt on board the Pizarro for Corunna, consigned to Messrs. Hibberson and, Yonge. 3. A certificate of health, dated at Fémandina, the 20th of December, 1813. 4. A letter, from Messrs. Hibberson and Yonge, of the 10th January, 1814, to J. Walton,, the navigator or sea pilot, ordering him to sail to Liverpool. 5. A bill of lading, signed by Martinez, the master, for the-outward cargo. 6. The affidavit of Messrs. Hibberson and Yonge, that they had shipped the same cargo on their own account, consigned to Messrs. Hughes and Duncan,'&c. 7. The shipping articles from Amelia Island to St. Augustine, or any other port in Europe, andback, dated the 11th of January, 1814. 8. . Shipping articles from Liverpool to St. Augustiije, and back to Liverpool, without a d.aje. 9. A license from the governor of East Florida, authorizing Messrs. Hibberson and Yonge to buy a vessel in the United States, and the copy of a bill of sale from Messrs. S. and W. Hale, of New-Hampshire, by their agent Kimbell, dated the 24th of February, 1813, together with an order of the governor, of the 6th of March, 1813, naturalizing the ship, of permitting her t© sail lender Spanish co-lours,

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In the district court, the cause was heard- not merely upon the ship’s papers, and the testimony of the master and supercargo, (who were twice examined in open court,) but the.claimants were also permitted to introduce new proofs arid testimony in support of their claim, without any order for farther proof,

Feb. 27th.

Mr. Winder, for the appellants and captcirs.

1. The proprietary interest in. the claimants is not proved. . 2. They are excluded from the benefit of farther proof by the spoliation of papers. The court below made nb order for farther proof; yet it seems to have been admitted and considered by'.that court, and has erept into the transcript of the record. This was an irregularity, which will be corrected by the appellate tribunal, since the case on the original evidence was free frpm doubt or difficulty, and condemnation . ought to have ensued. The spoliation of papers is not satisfactorily accounted tor by the master and supercargo, who have prevaricated in their examinations; and the spoliation being unexplained, inevitably leads to the exclusion of farther proof, and, consequently, to condemnation. In the case of the Two Brothers,^[1] spoliation of papers, not being avowed with sufficient frankness by the master, was held to destroy his credit; and the defect of proof thereby induced, together with other circumstances, was' deemed a cause of condemnation. In the present

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case, all the documents relative to the cargo Were thrown overboard, and the.excuse is the same which was rejected, by the. English court of admiralty in the Rising Sun. Destroying the papers which might-show the Spanish character of the cargo could not diminish the dapger of capture by Carthaginian privateers, since the ship would still appear to be Spanish, and this, together with the want of documentary evidence as to the cargo, would involve both in the same fate. This explanation of the suppression of the papers is, therefore, weak and futile, and such as cannot relieve the parties from the imputation of mala jides. 3. The claimants contend, that the cargo, is exempt from confiscation by the Spanish treaty of 1795, which recognises the rule, that free ships make free goods.^[2] But the term “ subjects,” in the 15th

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and 16th articles, must be understood of subjects who owe a permanent allegiance 'to the crown of Spain,

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Hot of mere domiciled merchants, such as the claimants. A vessel fouud without the documents re

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quired by the 17th article is presumptively in the same situation as if she were without any documents

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and no equivalent proof can be admitted, because the pre-existing law of nations, and tne practice of"

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pi'ize courts under that law, though they exempt neutral properly from confiscation, refuse farther oq£ w¿ere there has been spoliation of papers

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mala fide, and condemn the property as enemy’s. So, also, in this case, the Spanish character of the ship cannot be established, because the claimants have forfeited the privilege of farther proof by the misconduct of their own agents, and, consequently, cannot furnish the equivalent testimony required by the 17th article. The justifiable inference is, that the property in the ship and cargo belongs to the enemy, or to citizens of the United States trading

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with the enemy, which it will not be pretended is protected by the treaty.

Mr. Key and the Attorney-General for the respondents and claimants.

1. Even the total want of papers is not a substantive ground of condemnation: it may be explained, as Sir William Scótt^[3] observe» in the Betsey, alluding to the the ancient French law, 2. Nor is the spoliation of papers conclusivo to exclude farther proof, and never has been so held by any tribunal whose decisions this court will respect.^[4] In this case the stupid and artless manner in which the agents of the owners acted is a proof that the. latter did,not participate in, nor can they be made 'penally responsible for, the misconduct of the former. 3. If the owner of the ship was a domiciled subject of Spain, the ship, and, consequently, the cargo, is entitled to protection under the treaty. - Commercial domicil stamps a national character for every purpose in the view of a court of prize; and if the operation of the treaty, were confined to Spanish subjects (properly so called,) while it is extended to all persons inhabiting the United States, it would be unaccountably deficient in reciprocity. What fortifies the contrary construction' is, that the term subjects is several times used indiscriminately in the treaty to signify the inhabitants of both countries. The purpose for which the documents prescribed by the treaty are required shows that a merely formal deflect only authorizes detention and. sending in for

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adjudication, and if “ equivalent testimony” is produced, restitution must follow, though the captors are exempt from costs and damages. Jhqmvalent testimony is that which satisfactorily proves the same thing as that in which there was defective proof before; and the proof we havé produced is testimony more than equivalent. The form of passport alluded to ip the 17th article is not annexed to the treaty, nor is it to be found in the department of state. The Spaniards have relied on the good faith with which this country has always fulfilled its engagements ;. they have neglected the form, and relied on the spirit of . the .stipulation. The papers produced áre; therefore, equivalent to a formal passport; and there is nó rule by which they can be excluded, as there was no attending circumstance of fraud in the destruction of the original documents, and, consequently, the case is unaffected by that mala fides. which precludes explanation from extrinsic testimony.

March 5th.

delivered the opinion of the court, and after stating the facts, proceeded as follows :

A preliminary objection has been taken in the argument at bar to the regularity of the proceedings in this cause, and it is urged, with great earnestness and force, that the farther proof was not admissible, except under, an explicit order of the court for. this purpose; and that the conduct of the master arid supercargo-in the suppression of the documents of the Cargó, arid in prevaricating in their examination, has

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justty forfeited the claim which the owners might otherwise have to introduce the farther pr.

lne proceedings in the district court were certainly very irregular; and this court cannot but regret that so many deviations from the correct prize practice should have occurred at so late a period of the war. The ship’s papers ought to have been brought into court, and verified, on oath, by the captors, and the examinations of the captured crew ought to have been taken upon the standing interrogatories, and not.w’wa voice in open court.. Nor should the captured crew have been permitted to be re-examined in court. They are bound to declare the whole truth upon their first examination; and if they then fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give colour to their.former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule.

It is upon the ship’s papers, and the examinations thus taken in preparatory, that the cause ought, in the first instance, to be heard in the district court ; and - upon such hearing it is to judge whether the cause be of such doubt as to require farther proof; and if so, whether the claimant has entitled himself to the benefit of introducing it. If the court should deny such order when it ought to be granted, or alr low it when it ought to be denied, and the objection be taken by the party and appear upon the record, the appellate court can administer the proper relief.

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If, however, evidence.in the nature of farther proof be introduced, and no formal order or objection . ... . , , . appear on the record, it must be presumed to have been done by consent oí parties, and the irregularity is completely waived. In the present case, no exception was taken to the proceedings or evidence in the district court; and we should not, therefore, incline to reject the farther proof, even if we were of opinion that it ought not, in strictness, to have been admitted.

The objection, which is urged against the admission of the farther proof would, under other, circumstances, deserve great consideration. Concealment; or even spoliation of papers, is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and justify the suspicions of the court. But it is a circümstánce open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the' first-instance fairly and frankly explains it .to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile; if the cause labour under , heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a. denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply.

In the present case there can be no doubt that there has been a gross prevarication and suppression

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of testimony by thé mastér and supercargo. Nothing can be more loose and unsatisfactory than their first examinations; and. the new and circumstantial details given upon their sééond examinations are inconsistent with the notion of perfect good faith in the first instance. The excuse, too, for throwing the packet of papers overboard is certainly not easily to be credited j for the ship’s documents which still remained on board would, in the view of a Carthagenian privateer have completely established a Spanish character. It is not, indeed, very easy to assign an adequate motive for. the destruction of thé pápers. If the ship was Spanish, it was, as to American cruisers, immaterial to whom the cargo belonged; for, by our treaty with Spain, (treaty of 1795, art. 15.,) declaring that free ships shall make free goods, the property of an enemy on board of sach a ship is just as much protected from capture as if it were neutral. The. utmost, therefore, that this extraordinary conduct can justify on the part qf the court is to institute a more rigid scrutiny into the' character of the ship itself. If her national Spanish character be satisfactorily made out in evidence, the spoliation of the documentary proofs of the cargo will present no insuperable bar to a restitution. Very different would be the conclusion, if the casé stood upon the ground of the law of nations, unaffected by the stipulations of a treaty.

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Upon a full examination of the evidence we are of ©pinion that the Spanish character of the ship is entirely sustained, and, therefore,, the claimants are entitled to a decree, of restitution.. Two objections have been urged against this conclusion; I. That the ship is not documented according to the requisitions of the treaty with Spain, and, therefore, not within the protection of that treaty. 2. That it does not

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appear that Mr. Hibberson (who is a native of Great Britain) has ever been naturalized in the dominions of Spain, and therefore he is not a subject of Spain, within the meaning of the treaty.

Aá to the first objection, it is certainly true that the ship was not furnished with such a sea-letter, or passport, or such certificates as are described in the 17th article of the treaty. But the want of such documents is no substantive ground for condemnation. It only justifies the capture, and authorizes the captors to send the ship into a proper port for adjudication. The treaty expressly declares, that When ships shall be found without such requisites, they may be sent into port, and adjudged by the competent tribunal; and “ that all the circumstances of this omission having been well examined, they, shall be adjudged to be legaj prizes, unless they shall give legal satisfaction of their property by tesr timony entirely equivalent.” It is apparent, from

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this language, that the omission to comply with the requisites of the treaty was not intended to be fatal to the property. And, certainly, by the general law of nations, as well as by the particular stipulations of the treaty, the parties would be at liberty to give farther explanations of their conduct, and to make other proofs of their property. If, indeed, upon the original evidence, the cause should appeár extremely doubtful or suspicious, and farther proof should be necessary, the grant or denial of it would rest upon the same general principles which govern the discretion of prize courts in other cases. But in the present case, there is no necessity for such farther proof, since the documents and testimony now before us, are, in our opinion, as to the proprietary interest in the ship, entirely equivalent to the passports and sea-letter required by the treaty.

As to the second objection, it assumes, as its basis, thát the term “ subjects,” as used in the treaty, applies only to persons who, by birth or naturalization, owe a permanent allegiance to the Spanish government. It is, in our opinion, very clear that such is not the true interpretation of the language. The provisions of the treaty are manifestly designed to give reciprocal and co-extensive privileges to both countries; and to effectuate this object, the term “ subjects,” when applied to persons owjng allegiance to Spain, must be construed in the same sense as the term “ citizens,” or “ inhabitants,” when applied to persons owing allegiance to the' United States. What Remonstrates the entire propriety of this construction is, that in the 18th article of the

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treaty, the terms “subjects,” “people,”and “inhabitants,” are indiscriminately used as synonymous, to designate the same persons in both countries, and in cases obviously within the scope of the preceding articles. Indeed, in the language of the law of nations, which is always to be consulted in the interpretation of treaties, a person domiciled in a country, and enjoying the protection of its sovereign, is deemed a .subject ofj that country. He owes allegiance to the country, While he resides in it; temporary, indeed, if he has not, by birth or naturalization, contracted a permanent allegiance; but so fixed that,as to all other nations, he follows the character of that country, in war as well as in peace. The mischiefs of a different construction would be very grept; for it might then be contended that ships owned by Spanish subjects could be protected by the treaty, although they were domiciled in .a foreign Country, with which we Were at war; and yet the law of nations would, in such a predicament, pronounce them enemies. We should, therefore, have no hesitation in oyer-ruling this objection, even if it were proved that Mr. Hibberson. was not a naturalized subject of Spain; but we think the presumption very strong that he hád become, in the strictest sense of. thé words, a Spanish subject.

The Spanish character of the ship being ascertained, it is unnecessary to inquire into the proprietary interest of the cargo, unless so far as to ascertain that it does not belong to citizens óf the United States; for the treaty would certainly not protect the property of American citizens trading with the ene

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my in Spanish ships. There is no presumption, from the evidence, that any American, interest is concerned in the shipment. The whole property belonged either to British subjects or to the claimants, and we think the proofs in the cause very strongly establish it to belong as claimed.

The decree of the circuit court is affirmed with costs.

Decree affirmed.^[1]

f f It is obvious that the privilege of the neutral flag of protecting enemy’s property, whether conferred by tréaty or by the ordinances of belligerant powers, cannot extent to a fraudulent use of the flag to cover enemy’s property in the ship as well as the cargo. The Minerva, 1 Marriott's Aim. Dec. 235. The Cittade de Lisboa, 6 Rob. 358 . The Eendraught, Jb. Note, (a.) During the war of the American revolution the United States, recognising the principles of the armed neutrality, exempted by an ordinance of congress all neutral vessels from capture,- except such as were employed in carrying contraband goods, or soldiers, to the enemyit was held that this exemption did not extend-to a vessel which had been guilty of grossly unneutral conduct, in taking a decided part with the enemy, by combining with .his subjects to wrest out of the hands of the United States and of France the advantages they had acquired over Great Britain, by the rights ef war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain was interdicted. In the case in .question, the vessel was purchased by neutrals in London, who supplied her with false and colourable papers, and assumed on themselves the ownership of the. cargo, for a voyage from London to Dominica. The continental court of appeals, in pronouncing the vessel and cargo liable to condemnation, observed, “ Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize; because congress had said, by their ordinance, that the'rights of neutrality should extend nrotee *248 tion to such effects and goods of an enemy. But, if the neutrality were violated, congress have not said, that such a violated neutrality shall give such protection: Nor could they have said so, without confounding all the distinctions between right and wrong.” The Estern, 2 Dali. 36. The only treaties now subsisting' between the United States and foreign powers, containingthe stipulation that free ships shall make- free goods, are the above treaty with Spain, that of 1782 with the Netherlands, (which, it is presumed, still subsists, notwithstanding the changes in the political situation of that country,) and the treaties with the Barbary-states. The conventions between the latter and Christian powers always contain the stipulation, that the flag and pass shall protect the cargo sailing under it. In the memorable case of- the Nereide, 9 Cranch, 388 ., it was contended by the counsel for the captors; that this stipulation in the Spanish treaty, taken in connexion with the law of Spain, necessarily implied the converse proposition, that enemy’s ships make enemy's goods, which is not expressed in the treaty. But this argument .was overruled by the court, Who held that the treaty did not contain, either expressly or by implication, a stipulation that enemy’s ships shall make enemy’s goods. Id. 418 . See Ward on the Relative Rights and Duties of Belligerant and Neutral Powers, 145.

Footnotes

e e By the ancient French law, jpoiiatidn of papers was a substantive ground of condemnation, Thus, by the ordinances of 1543, art. 43, and of1584,-art. 70, the throwing orerboard of the charter *243 party, or other papers respecting the lading of the vessel, is declared cánse of condemnation. And by the ordinance of August, 1681, Dei Prises, art. 6, all vessels, on board of which no charter party, bills of lading, or invoices are to be found, are, together with their cargoes, 'declared good prize. Doubts having arisen v as to the application of this rule of evidence, in cases where - sufficient papers were found remaining on board, to furnish proof of the proprietary interest, the ordinance of the-6th Sept., 1708, was rendered ; by which it Was provided, that every captured vessel, from which papers have been thrown overboard, shall be good prize, together with the cargo, upon proof of this fact alone, without its being necessary to examine into the nature of the papers destroyed, nor to inquire whether sufficient papers were found remaining .on board to furnish' evidence that the ship and the goods of .her lading belonged to allies or friends. But this decision appearing too vigor* ous in practice, Louis XIV, in a rescript of the 2d February, 1710,' addressed to the Admiral of France, directed the council of prizes to apply the terms of this ordinance according to the peculiar circumstances, and the subsidiary proofs in each Case. Valin is of the opinion that, though this rescript escaped' the attention of the framers of the regula* tion ofthe 21st October, 1744, (the 6th article of wbick is' entirely conformable to the. ordinance of the 5th ¡September, 1708,) yet it ought to be applied to temper the rigonr of this article, according to circumstances. Vafin,sur I’Ordonnance,* lb. And, according to the authority of a celebrated modem jurist of France, such regulations should always be tempered by .wisdom and equity} they are im* properly styled laws ; and cssen* tially variable pro temporibus eb causis. He cites in confirmation ' of his opinion, that even the want or suppression of papers is not conclusive, a sentence, of the council of prizes o.f the 27th Pe* *244 pember, 1779, restoring the captured vessel, notwithstanding some papers had been thrown overboard, it being proved that the papers were not of such a nature as to show the property enemy’s, and the master not being accessary to the spoliation. See the opinions of Jif. Porialis, in the cases of the Pigou and the Statiru. I Crunch, 99. note, (a.) Ib. 104. note, (a.) -The Spanish law as to spoliation, is conformable with that of France, and its application to the above case would pfobably have been urged by the counsel for the captors, upon the principle of reciprocity, had they not been precluded from resorting to that argument by a former decision of the. court, in the cáse of the Nereide, 9 Cranch, 388 .; a majority of the judges being of opinion that the principle of reciprocity or amicable retaliation, formed no rule of judicial decision in the courts of this country, until it was prescribed as such by the legislative will. Id. 422 .