Iho ship and cargo, as protected under the licence on board per-
mitting this vessel, under any flag except the French, to export
from London and Poole, to any port in France between L'Orient
and the river G-aronne, any articles wliicli by law might be ex-
ported, except cotton wool, and tn inqmrt in n'furn a cargo of
90 THE JONGE CLAKA.
1811 prain, moal, flour, Lnn'-stonos, pcod.«, I'rcnfli camLrics, lawns, olivo
'^"^"^^ '^- oil, and Avino, upon condition that tlio vessel importing the wine
The should have exported to France under the same licence British or
J ' East India manufactured goods, sugar and coffee, and that the
Sir "\V . Scott. Q^Ygo so to he imported should consist of two-thirds in bulk of grain,
meal, flour and seeds, and in no case of more than one-third in
bulk of Avine. The ship is the property of a person at Emden ;
and it is contended hy the captors, that in consequence of the
annexation of that place to France, this vessel is now liable to be
considered as the property of a French subject. But I observe
that the ship is described by name in the licence which was
granted for its protection while engaged in British commerce, and
it can hardly be contended that a sudden and unexpected change
in the political relations of the country to which she belonged
should deprive her of that protection if the parties have acted
fairly under it. It is a know^n fact that many vessels belonging to
countries annexed to France have obtained licences, and that no
alteration was made in that respect until Febniary of the present
year.
But it has been further urged on the part of the captors that
this licence has been violated in many respects, that the quality of
the outward and return cargoes were not such as are permitted by
the licence, and that it had expired before it was made use of. It
is said that by this licence the parties were bound to carry out
British or East India manufactured goods, sugar or coffee, to the
amount at least of one-third of the tonnage, and that in point of
fact the outward cargo consisted of salted codfish and herrings.
In my apprehension these goods are sufficiently within the spirit
and meaning of the licence ; they are not in a state of nature ;
they were cured in this country ; they are articles which have
received the aid of British industry, and in which the commerce of
the country is deeply interested. Indeed, if any doubt could
arise upon the subject, the custom-house clearance, where the
nature of the articles composing the outward cargo must have
been fully understood, would put the question at rest.
Another objection started is that the vessel lias some goods on
board which are not permitted by the licence, which provides that
the return cargo shall consist of grain, meal, flour and seeds, and
THE JOXGE CLAEA.
97
in no case of more than one-third of wine ; and it is thence con- 18 ^i
tended that in conformity with the terms of the licence the cargo
must necessarily consist of two-thirds of the first descriptions, and ^ "^^f
f _ ^ JoxGE Claha.
that this condition is a ainc qua non, and that where it is not com-
plied with the licence is vitiated in toto. I cannot think so, as it
appears to me that the restriction is thi'own loose by the words
"in no case " which immediately follow, because, supposing the
parties were not to be permitted to substitute any other articles,
those words, which qualify and mitigate the preceding imperative
words, would be nugatory. I am therefore inclined to hold that
the terms of the Kcence are sufficiently satisfied if the quantity of
wine does not exceed one-third of the tonnage. There are other
goods on board which are not within the enumeration of the
licence, and they must of course be condemned, but the penal
consequences will not go to affect the licence. It would fall
extremely hard upon the commercial interests of the country if
the innocent goods of one merchant should be confiscated on
account of the misconduct of another. Such a position would
carry the doctrine of infection beyond what is done even in cases
of contraband where the penalty attaches only to the property
belonging to the same owner.
I cannot admit tliat this licence has been vitiated on any such
grounds as those which I have adverted to ; but there is a further
objection, which is, that this licence was granted on the 2nd October,
1810, for four months, and it appears that the ship was captm-ed
so late as the 4th Jul}', 1811. This certainly is a circumstance
which requires the fullest and most satisfactory explanation, for
parties are bound to adhere to the terms of the licence under whicli
they claim protection, unless they can show that they were pre-
vented from so doing by some unavoidable impediment. Licences
are granted upon the exigency of the moment, and it is obvious
that strong reasons of policy may operate witli his Majesty's
Government to cause or to prevent the granting of them at dillVrcut
times, and it is the business of the government, and not of Iho
private merchant, to say at what periods this permitted intercourse
with the ports of the enemy shall take place.
Wherever the licence has been out of date, the Court has not
shown a disposition to be pedantically narrow on this point, or to
11. — VOL. II. H
98 THE JONGE CLAliA.
1811 notice a triflmg excess; but hero I tliink it highly necessary to
^"C""'' "• cull upon the parties for some explanation of the delay. In former
TnK cases the Court has held the embargo of the enemy to be a suffi-
_" â– cient excuse, thinking it liard, that through the act of the enemy
Sir \y. Scott, ^jjp British merchant should lose the benefit intended him by his
own government, which would be in effect to place him at the
mercy of the enemy. But then the embargo must be satisfactorily
proved. The Court cannot so construe a licence as to allow a ship
to proceed to the enemy's port, and to remain there an unlimited
time at the discretion of the parties. Now it is certainly unfavour-
able to this case that no charter-party is exhibited, binding the
master to return, and I observe also, that the papers on board seem
to represent the lading of the vessel as having taken place so late
as May and June, a delay which must be fatal to the case unless it
can be shown that there was an embargo. The master says that
he was under an embargo from January to the middle of Jime,
but this cannot be considered as a matter proved upon his mere
averment. The utmost indulgence I can show the claimants is to
allow them to establish that fact by other evidence, and such
evidence they must possess, as I conceive it to be impossible that
the merchants in this country should not have received some inti-
mation of the cause of the detention of the vessel during so many
months.
On a subsequent day the Court, upon the production of the
further proof, restored the ship and the wine, but refused freight
and expenses to the neutral master upon the non-enumerated
goods condemned, as the vessel was not privileged to carry them.
[Edw. 375.] THE MINEEVA.
Licence — Condition to touch at a Port — Non-compliance — Condemnation.
Where a licence contained a stipulation that the vessel should touch
at L. : — ILhl, that this was a fundamental condition the breach of
which rendered the vessel liable to condemnation.
1811 Tins was the case of a vessel under Danish colours, with a
^^^ ^' " • cargo of deals, lathwood, staves, &c. captured on a voyage from
THE MINERVA.
99
Christlansand to Jersey. A liceuce was obtained for this vessel 1811
by name, by which it was provided that she should go to Leith, '
there to take convoy to the Downs or Portsmouth, and from ^^"^"^
thence to take convoy for Jersey. The vessel had not gone to
Leith, but was steering to Yarmouth to take convoy there ; and
the question, tliereforo, was whether the Court, under such circum-
stances, could say that the licence had been suflleiently complied
with.
Sir W. Scott. — This is tlie case of a vessel which is claimed as
protected under a licence ; the cargo is asserted to belong to
British merchants, but I do not observe that it is so set forth in
the claim. It is a licence which is granted for this particular ship
to carry a cargo from Christiansand to Jersey, on the condition
that she shall touch at Leith for convoy. The licence is granted
to these British merchants on a condition for which they are
responsible : thoy stipulate with government for a due observance
of the terms of the licence, and if the terms are departed from in
any essential point, tlie Court cannot protect tlie parties from the
inevitable consequences. The question then is, has this licence
been virtually and substantially carried into execution ? Certainly
not. Here is not a mere departui-e from a subordinate regulation,
it is a fundamental condition of the licence, without which it
would not have been granted. The Court is not called upon to
inquire into the reasons of this regulation, but it is highly
probable that his Majesty's Government may think it proper that
vessels with cargoes of tliis description on board should take convoy
at Leith, that they may be subject to British inspection in that
part of their navigation which brings them into the neighbourhood
of the ports of tlie enemy. It is evidently introduced for that
purpose, and, being so, can never be considered as a condition to
be waived at tlie option of tlio party who has accepted it. The
condition is fundamental, and the Ijvcach of It must be fatal. It
is not for nie to relax those terms on which the public wisdom has
deemed the conveyance of such articles to be coui^ibteut with the
public safety.
TI '^
100
THE ST. IVAN.
[Edw. 37C.] THE ST. IVAN.
Licence — Issue enhscqucnt to Capture.
A Hconco obtained subsequently to tbo date of a capture is no
protection.
1811 This was the case of a Russian vessel with a cargo of pitch and
Kovembcr \'i. tar, whicli had sailed from Uleaborg in Finland, on the IGth of
July, 1811, for London, and was captured on the following day.
A claim was given by the consignees in this country for the cargo
as Swedish property, stating that they had received a letter from
the owners, dated 11th July, 1811, directing them to apply to his
Majesty's Q-overnment for a licence permitting the ship St. lean to
proceed from a port in Sweden to the port of London with a cargo
of pitch and tar. Application was accordingly made by them at
the Council Office, and a licence was granted, dated 30th July,
1811, which was annexed to the claim, together with a letter
addi'essed to the consignees by the owners, dated 11th July, 1811,
stating that they had ordered the master to sail without waiting
for the licence, in order to avoid delay.
Sir "W. Scott. — This ship, which is clearly Russian property,
was captured on the 17th of July, 1811, on a voyage from
Uleaborg to London with a cargo of pitch and tar. The ship is
claimed as protected under a licence, dated 30th July, 1811, which
is many days after the captiu-e ; the question, therefore, is whether
the licence, which is annexed to the claim, can by any means have
a retroactive effect so as to protect this ship and cai'go, and I am
clearly of opinion that it cannot.
The statute which authorizes the Council to grant such licences
as his Majesty was in the habit of granting can be carried no
further than the term licence, which is an instrument in its very
nature prospective, pointing to something that has not yet been
done, and cannot be done at all without such permission. "Where
the act has been already done, and requires to be upheld, it must
be by an express confirmation of the act itself, or by an indemnity
granted to the party ; but a licence neeessaril}' looks to that which
yet remains to be done, and can extend its influence only to future
J
THE ST. I VAN.
101
operations. It is true that it lias been held in this Court, as well isu
as in the Courts of Common Law (for there have been decisions ^ '"^"' ^^ '
expressly upon this point), that the King may, for reasons of The St. Ivan.
State, release a prize as against the interest of the captors. The sir W. Scott,
captors bring in their prizes subject to such interposition on the
part of the Crown, but it is of very rare occurrence, and speaking
with all due reverence ought to be of rare occurrence, and only
under very special circumstances ; as, for instance, where the
detention of the vessel may be detrimental to the general interests
of the country. In such cases there can be no serious doubt of the
authority or of the intentions of the Crown. The order for release
recites the capture and detention, and proves the knowledge and
intention of the Crown acting upon those facts. But the Council
has no such power, and could have no intention to go beyond the
powers conveyed to it by the Act of Parliament, which extends
only to the granting of licences.
In the present instance, when the licence was applied for, it was
totally withdrawn from the knowledge of the Council that the
ship had sailed, still less that she had been taken ; for the licence
is granted " upon condition that the vessel shall clear out from the
port of Oregrund on or about the first day of Sej^t ember, 1811."
Tlie licence, therefore, is clearly out of the question, although the
parties seem with great sincerity to have relied on it for protection,
as I observe the master, in his instructions, is told to proceed to
Hano to join convoy, and that there he will receive the licence
expected from England. But w'hatever may have been their
expectations or intentions, it cannot avail them, and it only
remains for me to consider whether the cargo can be protected on
any other ground. As to the ship, there can be no doubt what
must be its fate, as Russia is at war with this coimtry. The cargo,
which is documented as Russian property, the master says was to
be delivered in London on account of the owner of the vessel, as
he believes, upon the information he derived from the owner in
Finland, and in this he is confirmed by all the ship's papers. It
is true a claim has been given on behalf of the house of Falcke &
Co., of Stockholm, in opposition to the ship's papers and the depo-
sitions ; such claims, in opposition to the original evidence, have
been in some few instances and under very strong circumstances
102 '11 IK IIECTOK.
1811 a
Nove mber 12. ^y[[]„>uj^^ ^^^ oxplauallon in the claim, lloro, on the contrary, no
TjtE St. Ivan, explanation, no evidence is offered in suj)port of tliis Swedish
SirW. Scott, claim ; it rests upon the mere broad assertion of Swedish propert}'.
Under such circumstances I am bound to say the claim cannot be
admitted ; and the cargo, therefore, as Russian property, must
follow the fate of the ship.
[Ed^-. 379.] THE HECTOR.
Llcmce — " 2'his Khi^jdom."
The words "port of this kingdom" include a port in Ireland.
1811 This was the case of a vessel under American colours, captured
Xoveiiibcr 28. ^^^ j.^^ coast of Norfolk, on a voyage from Archangel to Dublin
with a cargo of hemp, flax, tar, &c. The licence was for a vessel,
under any flag except the French, to proceed to a port of the
United Kingdom, and stipulating that if the vessel should be
destined to any port of this kingdom south of Hull with naval
stores she should stop at Dundee or Leith for convoy, which in
this instance had not been complied with, and on that ground the
captors pressed for condemnation.
Sir W. Scott. — It has been held that the words " this king-
dom," since the Union, must generally be considered to mean this
United Kingdom, for the kingdom of England as a separate
kingdom has ceased to exist. If, therefore, this licence was to be
construed on a strict technical sense of the words, Ireland would
certainly be included. But as this Court has been accustomed to
construe licences with reference to the probable intention of his
]\Iajest3^'s Government in granting them, and considering that this
is a mode of expression not likely to be employed if the ports of
Ireland were intended to bo included, I think I must understand
the condition as applying onlj' to vessels destined to ports of
]:]ngland south of UuU. It would be an awkward and indirect
mode of prescribing the conduct of vessels bound to Ireland to
distinguish ports of that island as south of Hull, and I am con-
firmed in this view of the subject by the circumstance that late
THE PENSYLVANIA. 103
licences whicli have been granted for the ports of Ireland, in which 1811
another mode is adopted for securing the delivery of the cargo at ^ '"â– ^'"^^> - â–
the asserted port of destination, namely, by a clause which makes The Hectoe.
it imperative on the parties to go north about (r/). It is likewise SirW. Scott.
to be observed that in this licence the words " this kingdom "
appear to be placed in some degree of opposition or exception to
the words " United Kingdom," which has been used in the ante-
cedent part of the sentence.
THE PENSYLVANIA. [i Acton,
23(4).]
Prize — Tnsuffiaent Prize Crew — Bight of Master to continue Jus Voyage — Kvn-
resistance to Search.
If an insufficient piize crew is placed on board a prize, her master is
entitled to navigate her to such port as he pleases in the interest of her
owners, and the prize is not liable to be condemned if she is a neutral
ship and is subsequently captured, if there was no resistance to tho
search and capture and no anned rescue.
This vessel on a voyage from Trieste, in the Adriatic, to Canton, isoo
in China, was captured by two British cruisers in the Mediter- "^"'"^ '-^-
ranean, and possession taken by sending three persons on board
her, who being unable to navigate the vessel, the neutral captain
continued to direct her course according to the instructions of his
owners, refusing to carry the vessel into Malta for adjudication, as
requii-ed by the prize-master. Immediately after passing Malta
she was boarded by a third privateer, and carried into Maltn,
where the claim of Messrs. AVilcox & Co., of Philadelphia, as
neutral and sole o^^^lers, was rejected, and the ship condemned as
having been rescued from the original captors.
Sfoddarf and JTarrisou, for the captors. — This vessel has Itnn
condemned in the Court below on account of the resistance &ho
(«) In tho ca^c of tho Success, {b) Though the rciniblicatiun of the
December, 1811, the licence con- Prize Cases in chronological order has
tainod the following clause : "If been followed, it has been necessary
to Ireland, the vessel shall go north to interfere with it slightly, in tho
about ; if to any port of this king- case of Acton's Eepnrts, so as to keep
dom, south of Kull, then to stop at tho cases grouped under the titles of
Dundee or Leith for convoy." tho original reports.
8YLVANIA.
1^4 - Tin: im;n.svlvania.
«i
1809 appears to have mado to the exercise of the acknowledged belli-
" "^' goront riglit of search, a riglit which, if once permitted to be
The rvN- violated by neutrals with impunity, must involve all maritime
nations in a series of calamities, cruelty and bloodshed. That
indulgence and lenity now shown to vessels boarded on suspicion
would no longer be politic or justifiable, and the interest of the
captors would point out the necessity of rigour and severity in
compelling vessels, under circumstances of suspicion, to enter those
ports best calculated for legally investigating the claims of the
respective parties. The evidence of the prize-master who was left
on board, corroborated by his own men, and one of the ship's crew,
proves, that at the time of his taking possession, he would have
obtained more men in consequence of the captain's suggesting that
his men would not work the vessel into Malta if he had not been
assured by him, almost immediately afterwards, that the men had
consented, at his request, to navigate the vessel into that port. As
soon as the vessel was supposed to be out of the reach of danger
from the privateers which made the capture, the captain threw oS
the mask, and assured the prize-master he would never again carry
a ship imder his command into port for adjudication, as he had
before suffered severely for so doing. He then called his men
together, assured them he would not j^ermit the vessel to be carried
in, and after demanding the ship's papers which had been left in
charge with the prize-master, and which he surrendered through
apprehension and intimidation, the vessel proceeded, by his direc-
tion, on her course towards the Straits of Gibraltar. The captain
assured him of his safety, and promised to send him on board a
Danish vessel then in sight. In this state of things she was again
boarded by a British cruiser and carried into Malta. There is no
attempt made to impeach the proof of property, but the sole
circumstance of the rescue attempted must appear sufficient to
affect the ship and cargo. (The private adventm-e of the master
having been restored by consent.) Hence, it is submitted, the
sentence of condemnation should be affirmed upon the principle
which regulated the decision of this Court in the case of the
Washington, where no actual force had been employed, but the
existence of a conspiracy to retake the vessel had been considered
fatal to the interest of the owners.
SYLVAKIA.
THE PENSYLVANIA. 105
Arnold andStep/ien, for the appellants and owners. — In this ease I809
there arises a difficulty from the nature of the testimony of two "^'"'^ '^^-
interested parties, who appear to have different motives for The Pex-
giving those inconsistent and contradictory statements. The
master, mate and seamen, with a solitary exception, agree in
stating the anxiety of the master to have a perfect capture made of
the vessel, probably that he might not be responsible hereafter to
his owners for a neglect of their interest, or to the captors should
any attempt be made to rescue the vessel by his crew. The only
witness of the ship's crew who supports the statement of the prize-
master is a person deserving little credit, from the resentment
which appears to have actuated him on account of his being
punished for disorderly conduct and inebriety. Tlie remaining
part of the crew confirm the statement of the captain, that ho
openly avowed the crew would not work the vessel into port, and
that the prize-master in consequence hailed the privateers, de-
manding more men to navigate the ship. This request was not
complied with, solely because there appeared several other vessels
in sight, which the privateers were anxious to capture. Inde-
pendent, however, of the contradictory part of the evidence
adduced, there is one point in which all are agreed, that no force
was employed, and this alone must obviate the inference attempted
to be drawn, that the principle upon which the Washington (a)
was condemned is applicable to this vessel, and will operate on
your lordships to pronounce against the appeal. In that case a
dangerous conspiracy was proved to exist, and the crew had been
previously armed to carry the proposed rescue into effect. Taking,
tliorefore, that part of the evidence in which all are agreed that no
resistance was made to the prize-master, but that solely in conse-
quence of the inability of the captors to work the ship the vessel
continued to hold on her original course, it remains for your lord-
ships to decide on a very circumscribed, thougli very material,
point of law, whether in all cases of capture the master and crew
are bound, at the peril of the confiscation of the vessel cr her
cargo, to navigate her to such port as the prize-masters, or those in
custody of the vessel for the captors, shall please to direct.
((/) This case is not reported.
lOG '11 IK NANCY.
1809 Sir "W". Grant. — Wo cannot seo tliat any such duty is imposed
•^'^"^ ^^' on tlio master and his crow. Tliey owo no service to the captors,
The Pen- and aro still to ho considered answerable to the owners for their
L ' conduct. It is the duty as well as the interest of tlie captors to
Sir W. Grant. j^^j^]^q ^]jq capture surc ; if they neglect it from any anxiety to
make other captures, or thinking the force already furnished suffi-
cient, it is exclusively at their own peril. In this case the captain
performs a duty ho conceives he owes to the owners ; ho will not
act against their interest, nor will ho attempt to prosecute their
interest by any violence on his part or that of his crew. Neither
he nor they are found to make resistance. The captors, therefore,