there is nothing in this proposition at all opposed to the decision
in the Bait tea (/). The Ballica went mainly on the ground of a
continuing enemy's interest, though I also adverted to the attemjit
to sell by wholesale ships the property of the enemy to one
individual.
The present transaction commenced in August, l^oo, and at
that period, beyond all doubt, the parties were fully competent,
without being liable to suspicion, to enter intu the engagements
which are said to liave been made. I think also that tlie Jirraiigf-
ment of August, 18'>3, was carried into execution witli as much
expedition as could reasonably be expected, considering that tho
claimant did not come of age till the 2'jth of December, 1803 ; ami
I think, also, it is proved that as soon as tliat agrernicnt was (•(•iii-
pleted by the execution of the bill of sale, and from that tiint- till
the period of capture, the present claimant exercised all tin- rights
(»') Hcversed un ni>ipt.-ul.
03i
rili: BKNKDKJT.
is.-.,>
Dcccmbo- 4.
The
BENEDIOr.
Dr.
Lushington.
of owiior. Thoro is an aljuiidanco of corrcspouJence demoustrut-
. ing it.
It is true tliat romittaucos to comploto tho sum of 24,000 rouLlfS
wore continued in LS54 ; but what possible effect can tliat liave
n])on tlio transaction whicli I liave to discuss. It appears quite
consistent with probability, and quite consistent also with law, that
tho father should make such remittances ; and, if it should liave
luipponed that in addition to them thoro was a transfer of other
property or remittances to the son to bo lield on his own account or
on the account of the father, provided tliere was no fraud as to this
particTilar ship, it was no more than tho ordinar}' course of trade, and
no infringement of any belligerent right. In 18o4, Mr. Philipsen,
as a merchant, had a right, subject to any chances, to remit any
property he thought fit, to be held either on the son's account or on
his own ; it is nothing more than the ordinary course of trade. I
will notice one or two other objections. I think it was stated that
it is very improbable that the master should have lost the letter of
March, 1854, addressed to him by Niss Hansen Philipsen and
directing him to give up the vessel to the present claimant, and
one of the counsel for the captors expressed a wish to see that
document, on the supposition, I conceive, that it might impeach
the genuineness of this transaction. It does not appear to me at
all improbable, that in May, 1855, when the son had been in the
possession and in the government of this vessel for fourteen
months, that such a document should not be forthcoming, espe-
cially out of the custody of a ship master ; indeed, I think it
would have been much more unusual if it had been forthcoming,
when the father had, for fourteen months, with the full knowledge
of the master, himself treated the vessel as the property of the son,
to whom he was directed to give up possession.
But as for the contents of this letter, I apprehend that counsel
would find no great difficulty in satisfying their curiosity, for
there is a copy annexed to the affidavit of Mr. Philipsen, senior.
It is the letter dated March 17th, and gives in correct detail
instructions for the delivery of this ship to tho present claimant,
and in fact it is a copy of that very letter which the master
himself has lost. The observations in that letter with respect to
the employment of the master are, in my opinion, strong evidence
THE BENEDICT. 635
of tlie genuineness of the letter and the truth of the transaction. 13.>5
The father desires the master, if he can, to effect arrangements ^'""^^"^"' <•
Avith the son for the purpose of continuing master ; supposing that The
could not be done, then he says, " if you come here, I will do the
best for you, considering you have been in my service." Lu-*hbgtoii.
"With regard to the claimant's letter of March 2'>rd, I do not
think that the true construction of it is inconsistent with the
other statement. The surprise in that letter is expressed not
at the act being done at all, but that the wliole promise of his
father should be carried into elfect so speedily. The sui-prise is at
that expedition, not at the thing done. The whole correspondence
with the master is annexed, and I think it would be difficult tn
find in it anything inconsistent or incongruous.
I think it was said also, that though the agreement, if so it can
be called, took place between the father and the son in August,
1853, yet that there was no writing of any kind written in that
year to verify tliat transaction. Now this objection would bo
entitled to great weight if this transaction had been a contract
between two parties intended to be legally binding ; but what
passed on that occasion between the father and son was of a totally
different nature. It was a promise on the part of the father to
confer certain benefits on the son, benefits which could not be con-
ferred till after he was of age. I confess I should have been sm -
prised had there been a written agreement to any such effect.
There was no obligation on the father to make this promise, or to
carry it into effect when made, save his own parental kindness and
his own sense of honour. Such obligations are not put in writing.
On tlie whole, I am satisfied that I ought to give credit to thi-
proofs adduced on the behalf of the claimant.
Of course, this is a ease, looking to the further proof, where the
captor is entitled to his expenses.
536 'I'lIK MAKIA.
[.Si.iukM,:3>i.] THE MAUIA (No. 1).
Practice—Ship— Absence of Bill of Hale— Further Proof— Frocedure hy I'hu
and Proof.
Tho absence of the bill of sale of a ship, and the ignorance of tho
master as to tho ownership, both necessitate further proof.
If the cluiuiaut elects to proceed by plea and proof, the case is open to
fuvthor proof on the i>art of the captors.
1800 This vessel, under Belgian colours, bound from Rio Janeiro to
December \'l. -r^ • • -it • ^^ i r\ ^ s- 1
a port of Great Bntani, with directions to call at Oork lor order.s,
was captured on the 27th of October, 1855, off Cork, by tlio
revenue cutter Eliza, on suspicion of being Russian property.
The claim was given in on behalf of " Gr. F. E. linger and
J. I. H. Huger, of the city of Antwerp, merchants and ship-
owners, trading under the firm of Messrs. Huger & Co., subjects
of the King of the Belgians, as sole owners." The examinations on
the interrogatories having been taken, the case now came on for
hearing on admission of the claim.
The Queen'' s Advocate and Adniiralti/ Advocate for the seizor;
Dr. Addanis and Br. 2'in'ss for the claimants, contended that there
could be no possible doubt as to the neutrality of the vessel, and
that she ought to be restored without further proof. The rule that
the absence of the bill of sale was a ground for further proof was
not of universal application, but must be qualified by the circum-
wtances of the case.
Dr. Lushtxgton. — The bill of sale not having been produced,
this would clearly be a case for further proof on that ground alone.
There is, however, another equally strong. The claim is given in
on behalf of two persons, the Messrs. Huger ; but the master in
his evidence describes the ship as belonging to other parties. The
explanation which has been given of that circumstance may or may
not be true, but that explanation can onl}'' be received by the Court
on fm^ther proof. It is an imperative rule of the Prize Court that
the master must be acquainted with the ship-papers, and be able to
state without doubt or hesitation who are the owners. Further
proof must be given.
The Qficcn^'i Advocate. — I must ask the Court in this case to
THE ALINE AND FANNY. 537
allow the captors to give further proof, as 1 am iustructed tliat wo 1855
liave proof of the most important character as to the true owner- -P<^<-*"* < '>' !- •
ship of this vessel. Tue Mabu.
The Proctor for tlio claimant tlieronpon prayed the Court to
allow him to bring in a special allegation.
The Court, — In that case all difficulty is removed. I sliould
liave hesitated to open the case to further proof on tlio part of tlic
captors ; but if the claimant elects to proceed by plea ami proof,
tliat, of course, will open the case to both parties.
THE ALINE AND FANNY. [Spiuin. 322.]
[10 Moore,
Practice — Further Prouf — Ship's Papers and Depositions — Bhichvle. T. C. •I'Jl.]
Eulo as to the admission of further proof by the cai)tors. By the Law
of Prize, the evidence, whether to acquit or condemn the ship, mu&t, in
the first instance, come from the shijj's papers and the primary dcpu-
sitions of the master and crew ; and the captors are not, excoi)t undiT
circumstances of suspicion arising from the primary evidence, entitled to
adduce any intrinsic evidence in opi^osition.
In a case where no suspicion of an intention to break a blockade
appeared from the ship's papers, or the primary depositions, the Judicial
Committee (affirming the interlocutory decree of the Admiralty Court)
refused the admission of further proof by the captors to contradict the
dcjiositions with respect to the place of capture.
The principle laid down in the Ostsee {ante, p. 432), that a claimant
upon restitution of the ship is entitled to costs and damagi's from the
captors only in circumstances where the ship was in no fault, and was
not by any act of her own, voluntarily or involuntarily, open to any fair
gi'ound of suspicion, approved.
A neutral vessel was seized for breach of blockade. She was chartered
for a voyage from Umea to the neutral port of IIaj)aranda in Sweden,
at the head of the Gulf of Bothnia, and had come across the (Julf of
BothTiia from tho Swedish towards the Finland coast, but not in ii
straight course from tho neutral port sho started from to tho neutral
l)()rt she was bound to ; and when descried and followed by her Majesty's
ships did not slacken sail, but piu-sucd her course till brought to by a
shot from the cai>tors. Hilil, to be siu-h an ajipearance of an intention
to commit a breach of the blockade as to warrant tho suspicion of tho
captors, and to entitle the claimants u]>on restoration to a dwreo of
simple restitution only, without costs and damages.
is.'.a
Jiiiiiiar;/ IS, 30.
a general cargo of sugar, coffee, tobacco, S:c., bound, aooopliiig to /w/y », 10.
This vessel, under Lubeck colours, sailed from Lubeck with
5;^ft THE ALINE AND FANNY.
i8r)G llio slilp-papors, for Ilaparanda, in Sweden. On llio J lih of
'^llllli'ii^Uh' NovcraLor last slin was cai.tnro.l l.y Iut Majesty's ships Tartar
__ _ ^j^^l I)n/f/on for an alleged attempt to Lreak the Lloc-kade of Jacoh-
TlIE Alink
AND Fanny, stadt.
A claim for Ihf ship and c'irgo was given in Ly the master on
belialf of the respective owners, citizens of Lubeck.
The master in his deposition swore that he was captured between
the 6'3 and Gi degrees north latitude, about twenty miles from the
land, and only just within sight of the coast of Finland.
On behalf of the captors a certificate or statement was brought
in to the following effect : —
"William Fitzherbert Ruxton, lieutenant, and WilUam Belford
Stubbs, lieutenant, have deposed before me that they were on the
deck of her Majesty's steam ship of war the Dragon, when at anchor
inside the Island of Maskar, off the town of Jacobstadt, on tlie coast
of Finland ; that on the morning of the 14th day of November, 1855,
and at about half-past 8 o'clock a.m., they saw a schooner apparently
rimning for the anchorage off Jacobstadt, about tliree or four miles
oU, and that they reported this circumstance to me ; also, that on
opening the point of the Island of Maskar, which would give a full
view of her Majesty's ships of war Tartar and Dragon at the
anchorage, this schooner set her boom mainsail, and haiiled out on
the port tack, which proceeding they also reported to me ; and that
this schooner was consequently kept in view until she was detained
hy her Majesty's ship of war Tartar, about seven miles N.N.W. of
Jacobstadt.
" I certify that the foregoing reports were made to me, and also that
1 nn-self saw the schooner running for the anchorage off Jacobstadt,
and afterwards haul out on the port tack.
"Dated on board her Majesty's steam ship of war the Dragon,
and signed by us in the harboiu' of Hernosand, in Sweden,
this 18th day of November, 1855.
" William Fitzherbert EuxTox, , On board her
Lieutenant, Majesty's steam
"AViLLiAM Belfort) Sxcbbs, ship of war,
Lieutenant, the Dragon.
" William "W. Stewart,
" Signed in my presence,
" Captain of her Majesty's steam ship
of war tlie Dragon ^
When the case came on for hearinc', the counsel for the claimant
THE ALINE AND FANNY. 539
protested against tiiis inegular attempt to iutroduto (.aptors' 1856
evidence, and the Court remarked that tlie statement certainly •^""""'".v 18.30,
July y, 10.
could not at that stage of the proceedings be received as evidence ; â–
hut that, to the best of its recollection, the practice in former axu Fax.ny.
times was, when either captor or claimant pra3"ed to be allowed to
bring in further proof, for hiiu to state what he proposed to prove.
The Court also said that the counsel must argue the case, before it
could come to any decision upon it.
The Qi(('C)i\^ Advocate f for the captors. — The present is a case in
which the Court will scarcely refuse to allow the captors to bring
in further proof as to the place of capture. Even from the depo-
sitions there is so much doubt about the A/i/ic and Faiiiii/, that,
under the 22nd section of the Prize Act, Russia, 1854, the Court
would be justified in admitting further proof. The destination is
said to have been Ilaparanda, lying at the head of the (lulf fif
Bothnia, so that the vessel was off the enemy's coast the whole
of the way, and was under considerable temi:)tation to enter the
port of the enemy. Wherever she entered she woidd have had no
difficulty with regard to her bills of lading. It ap[)ears from the
depositions, that in the course of her voyage she had, without any
as^ignable reason, put into two Swedish ports situated in the
narrowest parts of the Gulf of Bothnia, though at the time the
wind was favourable for her alleged destination. The inference
from such conduct was, that she had jiut in there to obtain
information respecting the blockading squadron, in order to slip
into an enemy's port if she had the opportunity of so doing.
Though the master swore that he was captured twcnt}' miles from
the enemy's coast, yet the captors stated tlial he was captured
about seven miles from Jacobstadt, and tliey prayed the Court to
allow them to bring in fiu'ther proof to that effect. Autliorlties
are not wanting for such a course: the Romeo {k), the Charlotte
Christine (J). The reasons for adopting such a course arc far
stronger now than formerly, inasnnich as captors are now liable to
condemnation in costs and damages, unless there appear to be
probable cause of seizure. The officers of the navy are in this
(/,) Vol. I. p. oG8. (/) Seo \w{v noxt piigi-.
540 11 IK Ai.FNK AND TAN NY.
1866 itrcdieament ; if tlifj do not seize vessels apparently attempting lo
"jiin'/O 10. TL)roak the Llockadc, tliey arc liable to be tried Ly a court-martial ;
~ i if they do sc-ize tliem, tlioy arc liable to bo condemned in costs and
TixK Alini-: *^ _ . .
AND Fanny, damages if the ship-papers disclose no ground of suspicion, and
lh<' master boldly swears he was captured many miles away from
the enemy's coast. Nothing can be easier than to have the ship-
papers correct for a legal destination, and to have a story already
prepared in case a British man-of-war should happen to fall in
with them. The Court can hardly leave her Majesty's officers in
such a predicament, and refuse to allow them to give proof of the
actual place of capture.
Dr. Dcano, on the same side, referred to the Court's remarks on
the Haabei, in the case of the Lciicade {)n), and contended that
there must be some mistake, as the decision in the Charlotte
Cliristuw {)/), in which Lord Stowell admitted captors' evidence,
was subsequent to that of tlie Ilaahct, in which he expressed his
opinion strongly against such evidence. He also cited, from the
manuscript notes of the late Dr. Burnaby, the judgment of Lord
Stowell in the case of the Friede [o) .
Br. Addams, for the claimant, contended to the effect of the
judgment as to the admission of captors' evidence, and cited the
Ha abet [p), Charlotte Chriatinc {)i), and the Fortuna [q). He also
contended that as there was nothing whatever in the ship -papers
to raise any suspicion that the vessel was not going to any other
port than her alleged destination, she ought to be restored with
costs and damages.
The Quccn^s Advocate having replied,
Thk Court reserved its decision.
(»)) Ante, p. 473. dopositious], aud attiJavits were now
(?)) 6 0. Eob. 101. Xot reprinted. exhibited from the commanding
A question of fact as to -n-hether a officer and other oflBcers and men of
vessel was breaking a blockade. As the captiuing vossel."
to the admission of captors' evidence, r \ t> t - <
-r, ■• . (") "osfy p. u.j4, n.
it IS stated : " Permission was given
to the captors to answer the repre- iP) ' '^^* ■'■• P- ^-■*-
sentation [contained in the master's (
THE ALINi: AND FANNY. 541
Dr. Lushingtox. — This is a Lubeck vessel, laden with a general 1856
cargo. She sailed from Lubeck, and according to the evidence of -^"'"fy 18.30.
^ Julij 9, 10.
the master was bound to Ilaparanda, in Sweden, a destination 'â–
admitted to be lawful. She was captured on the 14th of November axu Faxxt.
in the past year, 18-35, and the alleged ground of her seizure and "j^
detention is, that she was attempting to break the blockade of the Lusbington.
coast of Finland. The existence of the blockade and its legality
is not disputed ; the point at issue, or souglit to be put in issue, is,
the breach of the blockade.
The Court, according to its ordinary practice — a practice alfirmed
and sanctioned by all the higliest authorities of the law of nations —
looks primarily to the ship-papers and the depositions. AVitli
regard to the ship-papers, one single observation will suffice. As
far as the bills of lading and documents of that description can
tend to prove the destination, they all point, as strongly as such
documents can do, to a destination to Haparanda.
I then come to the depositions. The master, on the Grd
interrogatory, says, " The ship was seized between (jS and (54
degrees of nortli latitude, about twenty English miles from land ;
wo could just see the coast of Finland, and I suppose we were
seized for being too near the Finland coast — so the captain of tlie
Tartar told me." On the 8th interrogatory he says, " that the
schooner put into Oregrund, in Sweden, and afterwards into
Umea, also in Sweden, and the next day she was taken." On the
30th interrogatory, he deposes, " when I left Umea, the day before
the schooner was seized, I had to steer south-east, and when wo
made the light-house, on the little island of Gaddon, we steered
east-north-east to get off the Swedish coast, on whidi we sliould
liave been driven, had the wind blown liard. ^ly proper course
was never altered, save to keep free from the Swedish coast.
When the wind is from the nortli-east it is very dangerous, and
we are obliged to keep well off the land." Again, he says, " wo
were then twenty miles about from the coast of Finland." On
the 85th interrogatory, he denies all attempts to break the blockade.
The evidence of the other two witnesses is not material. It docs
not contradict, but, so far as it goes, supports the testimony of tlio
master.
It has been argued that there is an inconsistency in tl' * ^•" ■•,
542 'I'lli; AI.INK AM) FANNV. J,
iH.')(i as to Uio cause of putting into Orcgrund aii
^y'r//'''j'i()'** ^^ ^'''*^ ^^'^^^ ^**' '^"^ ^ confess I can see very little difference
~~ between distress of weather and contrary winds, I do not perceive
A.\D Fanny. ^^0^ sucli difference could affect tlie decision of this case. It was
j_jj. ]inTc(ily eoraiietent for this vessel to go into any Swedish port sh*'
Lusliiti^^'ion. pl(>as('d, and for any reason she thought fit; and I am rfally at a
loss to understand how entering a Swedish port would affect tlio
question of blockade : how so doing could render a breach of
blockade more probable, or tend to prove a breach of blockade. • â–
rieference has been made to the log, and various deductions
attempted to be di-a\vn from the entries therein. It has been sairl
tliiit tlie ship went to Abordso, and not to Umea, Uraea being
situated much higher up ; but it appears to me that this objection
is open to a similar answer — what possible criminal motive can with
any logical deduction be ascribed to sucli a misdescription, even if
it be one ? And is it not most probable, that the misunderstanding
arose from the want of knowledge of the locality, and that Abordso
may be the entrance to Umea, and is confounded with the town
itself ? I apprehend that, nautically speaking, it'is not unusual to
describe the entrance to a place as the place itself ; for instance, in
calling at Cork for orders, it must frequently happen that the
vessel never attempts to enter the harbour at all — merely calls at
the mouth of the river. I have no right, nor is it consistent with
justice, to assume guilt from a statement that is not clearly
intelligible to me, and which does not furnish some rational and
probable ground for imputing an unlawful intention.
Then how does this case stand ? The captors have not asked for
Trinity masters ; they have not contended that on the evidence, as
it now appears before the Court, condemnation could be decreed :
that is to say, upon the ship-papers, the depositions, and log — the
primary evidence in the case. I apprehend, therefore, upon the
present evidence, it is impossible for me to say that a breach of
blockade has been committed — the only ground upon which con-
demnation is prayed — that I cannot require the claimants to
produce further proof when already the papers point to a lawful
destination, and when all the evidence in preparatory is to the
same effect, and the onus is on the captors ; and that consequently
I m\ist either restore or receive captor's evidence. I consider this
THE ALINE AND FANNY. 543
to be a case iu whicli the depositions, ship-papers, and log, do not 1856
afford any ground for suspecting — any reasonable ground for ■^"'"'"'■y 18.30.
supposing — that this ship was committing a broach of blockade. '
At the risk of occupying more time than I would wish, I state a"d Faxxy.
these facts in detail, because I think it will presently appear that ~Z~
inconvenience has arisen from some reports furnished at previous L»»«bington.
times, from an attempt to render those reports too short and too
succinct ; and they have left the Court, and every person whosi-
duty it is to study such reports, in a considerable state of d
and difficulty iu such cases.
Now, in the present case, certain certificates were brought in on
behalf of the captors. They could only be offered as statements
of what the captors alleged they wore desirous of proving, if they
were permitted so to do by the Court. The Court could not
regularly receive them as evidence in the first instance, even if
tliey had been presented in the most formal shape, for the C
bound, as I think, when a case comes before it, to hear it upon tlie
original and proper evidence in the case — the depositions and ship-
papers. But though the Court could not iu that stage receive the
certificates as evidence, yet according to my recollection the practice
of the Court has always boon t(j permit both the captors and
claimants to state at the hearing any facts tlioy may deem con-
ducive to their interest, and to pray leave to prove them, and for
tlie Court, after hearing the case on the primary evidence, to deal
with such application as it may think fit.
I cannot deny that on some occasions the strict rules of practici'
jiave in such cases been departed from, and tliat tlio Court in
former times has been induced, when statements have been made
founded upon affidavits or other documents, to look at them even
when first offered in an irregular shape ; but still only witli a view
of more formal proof, if sucli statomonts sliould be admitted to
proof at all. Such distinctions may not always have been adverted