Cargo of the Ship Hazard v. Campbell
Absent. TODD, J.
APPEAL from the sentence of the Circuit Court for the district of Georgia, affirming that of the Circuit Court which condemned the cargo of the Russian ship Hazard, as British property.
The Hazard was captured in December, 1813, about 6 miles from the land of Amelia Island, by a boat from the United States Flotilla, and carried into St. Mary's, in Georgia. The boarding officer, after examining the ship's papers, returned them to the captain, and asked the captain's permission to stay on board that night, which was granted; and at the request of the captain the boarding officer assisted in piloting the ship over the bar of St. Mary's river, and brought her to anchor, after which he asked again for the ship's papers and then declared his intention to take the ship to St. Mary's. The captain in his protest states that the ship anchored nearer to the Spanish shore and harbour than to any other. The cargo was claimed in behalf of Luning, Gogel & Co. of Gottenburg.
CHARLTON and P. B. KEY, for the Appellants, contended,
1. That in as much as Russia and the United States, had both adopted the principles of the armed neutrality, the principle, that free ships should make free groods, was, as between those two nations, to be considered as part of the law of nations, and that the cargo was protected by the Russian flag.
2. That the capture was made within the territorial jurisdiction of Spain, and therefore void.
3. That the boarding officer practised a ruse de guerre, not justifiable towards a neutral. Fraud in war may be practised towards an enemy, but not towards a friend. Duponceau's Bynkershoek, 15. There ought to have been a vis major on the part of the Americans. They ought not to have decoyed the vessel out of neutral waters in order to capture her.
4. That the testimony was not sufficient to counteract the documentary evidence as to the interest of the Claimants. And,
5. That as the original German instructions from Lunning, Gogel & Co. were taken away by the captors, and not produced on the trial, the Claimants ought to be allowed time for further proof.
JONES and PINKNEY, contra, insisted.
1. That there was no foundation for the idea that there can be a law of nations in force between Russia and the United States, which is not equally in force between the United States and all other nations. The United States do not contend that by the law of nations free ships make free goods.
2. That there is no foundation in fact for the allegation that the ship was captured within the jurisdiction of Spain; and if there was, Spain has not complained.
3. The artifice used, (if any was used) was perfectly justifiable. A neutral vessel must submit at all events. The deceit produced no effect of which the Claimants can complain.
4. That the evidence of fraud, in the use of the names of Luning, Gogel & Co. to cover this property was too manifest to require argument. And,
5. That in a case so clearly fraudulent as this, further proof ought not to be allowed. It is alleged that the German instructions have been fraudulently withheld by the captors; their contents have been stated in substance by the supercargo; and if they were here they could not alter the state of the case.
March 6th. Absent. TODD, J.
LIVINGSTON, J. delivered the opinion of the Court as follows: