Andromeda v. United States
ON the 20th of May, 1862, the schooner Andromeda, with a cargo of cotton and hides, was captured off the coast of Cuba by the Pursuit, a sloop-of-war of the United States. The schooner at the time was bound to Havana, on a voyage from the port of Sabine, in Texas, where she had received her cargo. Being brought into Key West, she was libelled by the District Attorney of the United States as 'lawful prize of war, and subject to condemnation and forfeiture as such;' the libel, however, not stating for what cause she was seized, or had become 'lawful prize of war' as set up in that document.
The manifest read thus:
Manifest of the cargo on board the schooner Andromeda, of the burden of 229 8/100 tons, whereof J. H. Ashby is master, bound from Sabine Pass to Havana.
Name of Marks and Number of Packages or Contents or Names of Value at the
Shippers. numbers. entries. articles in quantities. consignees. port of exportation bulk. of domestic
Culmell. Various 597 597 bales cotton. 29,514 pounds. Chas. Caro & Co. $31,000 00
Do. F v C. 291 291 hides. 1,164 pounds. do. do. 58 20
Total amount,..................... $31,058 20
The bill of lading, described Edmonson and Culmell as shippers of all the items of the cargo.
AS TO THE OWNERSHIP OF THE CARGO libelled, as mentioned. The master of the vessel, Ashby, admitting that ninety bales of the cotton belonged to him, set up that one hundred belonged to a certain Culmell, 'a native citizen of Denmark,' and for ten years resident in Texas, where he was in trade as a partner of one Edmonson; and that the remainder of the cotton and all the hides belonged to Messrs. Caro & Co., merchants of Havana, to whom they were consigned. Caro & Co. were French subjects. Culmell made the same defence as to one hundred bales. Caro & Co. gave a power of attorney to the captain, to claim for them as theirs, all the hides and the whole cargo, with the exception of the one hundred and ninety bales; but, notwithstanding that an order for further proof was granted to allow them to exhibit proof of their ownership, they did not themselves appear at Key West, nor take any more active measures to protect their interests thus, by their answer, set up.
Ashby himself, was examined in preparatorio. His answers were, that 'he was born in New York,-now lives in Louisiana,-owes allegiance to Louisiana and the Confederate States,-is not a citizen of the United States,-is married, and has a family in Louisiana.' It appeared that he bought and took possession of the vessel in October, 1860, before the rebellion broke out; came soon afterwards to the Gulf and New Orleans, in which city he was when the war broke out, and which he left soon afterwards on the vessel (now, according to his account, sold), as master, and had been sailing since chiefly in those regions on her.
Just after the vessel hove to, and before the capturing officers from the Pursuit came on board, the steward, one Monsell, by order of Culmell, who was on board, and at the time with the captain, in the cabin, threw over a package of papers. The captain swore that he did not know what they were; the steward said, that he supposed they were newspapers. Culmell swore, that 'the invoice and bills of lading of the portion of the cargo owned by himself, were thrown over; he did not know who threw them overboard, but he gave them to the steward on the day of the capture, with orders to have them thrown overboard.'
The vessel had left Havana on the 8th of March, 1862, under the British flag, but with the American flag on board; her destination having apparently been Matamoras. Her cargo consisted of coffee, soap, oil, salt, candles, shoes, &c.; and running the blockade, legal or ineffective, then established by our Government, she arrived at Sabine, March 16th. This cargo was delivered to Messrs. Edmonson & Culmell, who received and sold it on account of the schooner Andromeda;' and their account showed a large balance 'due the schooner on the cargo.'
AS TO THE OWNERSHIP OF THE VESSEL. The vessel was American built. Prior to the rebellion she had belonged confessedly to Ashby, her now captain, who first saw her at Bridgeport, Connecticut, in 1860. Soon after the breaking out of the war he sold her, in May, 1861, at New Orleans, according to his own sworn statement, to a certain Richard Alleyn, described in the register as 'of Baltimore, in the county of Cork, Ireland, residing at the time in New Orleans,' a British subject; and documents, attested by the British consul at New Orleans, one Mure, showed that various forms, indicative of a bon a fide sale, had been gone through with great regularity. Alleyn sold her in March, 1862, according to the account, to a certain Gerald Thomas Watson, her now claimant. Watson was asserted to be a merchant of Havana, and, like Alleyn, a British subject. He was no doubt a British subject, but where he lived was not so plain. In one consular paper he was described as of 'No. 52 Cornhill, London.' Ashby remained all the time in command of the vessel. In reply to a question under an order allowing further proofs, he gave, under oath, a narrative, substantially as follows, showing the motives of the transfer, and the causes of his own continuing possession of her.
'To the fourth interrogatory the witness answers: At the time of the purchase by Alleyn, and her transfer to the English flag and register, a blockade of the port of New Orleans was expected to be laid in a few weeks. Alleyn resided in New Orleans. He intended to send the vessel to sea in order that she might not be useless property to him during the time the blockade should exist. This witness was appointed to her command by Alleyn, because he, the witness, was a person of some property, and would be responsible to Alleyn in case of a mismanagement of the vessel. On account of the blockade, no owner could expect to communicate with the vessel for a long term of time, and would have to suffer her earnings to accumulate and remain in the hands of her master. The witness, as master, sailed the schooner for Alleyn upon a contract, by which the witness was to have entire control and direction of the vessel; pay her entire expenses; engage her in the most profitable trade possible, and receive one-half of her earnings as a compensation,-a common rate of contract and compensation for masters sailing vessels of her class. Under this contract he sailed from New Orleans with a cargo to Matamoras, in Mexico; remained there about a month; discharged her cargo; and there being no freight for vessels there at that season he sailed in ballast to Havana, in Cuba, and endeavored to obtain freight there, but was unable to do so for three months, at the expiration of which time he obtained a cargo of sugar and molasses for New York, at low rates for freight, with which he proceeded to New York, where the schooner was seized by the Federal authorities under the allegation that she was liable to confiscation under the provisions of the act of Congress of July 18, 1861, but was soon afterwards released. The witness returned to Havana with a general cargo of merchandise, and was unable to procure another freight for a long time. The expenses of the vessel thus accumulating rapidly, and she earning nothing, induced the witness, on receiving an offer of purchase from the claimant Watson, to accept the same, which course he believed was for the interest of her owner, Alleyn. One of the conditions of the sale was, the witness should be retained in command until the new owner should find some person who would sail her at lower rates of compensation. This stipulation was attached because this witness was cut off from New Orleans by the blockade, and had no remunerative employment, and for no other reason. In accordance with the stipulation, the witness took command of the schooner, and was to receive for pay five per cent. of the entire and gross charges for freight upon cargo carried by said vessel while he remained in command.'
The log-book of the vessel was put in evidence, and the entries read from March 8, 1862, to the date of her sailing from Sabine, 10th of May, and indeed till the capture. Constantly throughout the log, with entries of 'the pumps now working well,' or the reverse of it; how the day 'came in;' and how ended 'these twenty-four hours;' that the ship 'kept the Sabbath' on Sundays, and 'took in cotton,' 'took in hides,' during the week;-'lower hold full,'-were entries like these during the time she was in the harbor of Sabine,-a port which commands a view of the ocean:
'No blockade in sight, fine weather.' 'No blockading vessel off.' 'No blockade off, clear weather.' 'No blockade off the bar, fine and pleasant day.' 'No vessel in sight, clear day, wind from south.' 'Day commences with fine weather, no blockading vessels in sight.' 'Saw no blockading vessels, clear, with breeze from south and southeast.' 'No blockade in sight, pleasant weather.'
And Culmell and Ashby, and the steward Monsell, alike swore that they saw no blockading vessels at any time; and that the vessel had not attempted, so far as they knew of, to go in or come out of any port when it was blockaded.
Noting that Caro & Co., though of Havana, had taken no further interest in the proceeding at Key West, near to them, than to sign a power of attorney to Ashby, the District Court considered that the claim set up by or for these persons to the bulk of the cargo, 'was an attempt to cover up hostile property by the use of neutral names;' and that the whole cargo, except the portions claimed by Culmell (plainly confiscable), belonged to Ashby; that Ashby, too, was owner of the vessel; of which 'his all along continuing in the command, notwithstanding the alleged sale by him to Alleyn, and by Alleyn afterwards to Gerald Thomas Watson,' was a pregnant proof. That court accordingly condemned vessel and cargo. The question before this court was, whether the condemnation was warranted.
Messrs. Gillet and Reverdy Johnson, for the claimants, contended that there was no sufficient evidence to condemn either cargo or vessel in total at all. A portion of the cargo is admitted to have belonged to Culmell, and some to Ashby; but the bulk of it stood on a different footing, and should not be condemned. Nothing could be argued from the destruction of papers beyond the fact that Culmell owned a portion (which fact is admitted), and was fearful about this, his part, hoping to save it. Caro & Co. are not touched. There is, therefore, as to the bulk of the property, no evidence of enemy's property at all.
As respected the vessel, the narrative given by Captain Ashby, on oath, in answer to the fourth interrogatory, was remarkably clear, and had internal indications of truth.
Moreover the libel is defective in form. It ought to specify for what offence supposed to be committed the vessel is claimed as prize of war; whether for breaking blockade or as enemies' property, or for what else? This generality of accusation belongs to no good system of law. It is 'the sending of the prisoner, and not withal signifying the crime laid against him,'-a matter which we have high authority to declare 'unreasonable.' Besides, there was no properly maintained blockade at Sabine. No blockaders could be seen for days and days. No nation has set itself more forcibly against paper blockades than the United States. Our natural duty and permanent interests are to support the rights of neutrals. We need not enlarge on a topic which was enforced with eloquence by counsel at this term in the case of The Circassian. [*] Our country has already given the world great lessons. In public law it remains for us to carry out the defence of neutral rights to their true dignity. This is the distinction which awaits us.
Lower views also would control this matter. We must not attempt to enforce doctrines against Great Britain and France that we are not willing to have applied to ourselves; nor while maintaining our present interest, teach instructions which will but return to plague the inventors.
Mr. Coffey, special counsel of the United States, contra.
The CHIEF JUSTICE delivered the opinion of the court.
^* See supra, p. 147.