U.S. Supreme Court The Alexander, 12 U.S. 8 Cranch 169 169 (1814)
12 U.S. (8 Cranch) 169
APPEAL FROM THE CIRCUIT COURT
FOR THE DISTRICT OF MASSACHUSETTS
A vessel, owned by citizens of the United States, sails from Naples in the year 1812 for the United States with a cargo and a British license to carry the same to England. On her passage, hearing that war had broken out between Great Britain and the United States, she alters her course for England, is captured by the British, carried into Ireland, libeled, and acquitted upon her license, sells her cargo, and after a detention of seven months in Ireland, purchases a return cargo in Liverpool, sails for the United States, and is captured by a United States privateer. Vessel and cargo condemned as prize to the captors. Capture good, though only a prize master put on board.
The following were the material facts in the case:
The brig Alexander, William S. Picket, master, sailed from Naples on 22 June, 1812, with a cargo of brandy, wine, and cream of tartar, with a British license to carry the same from Naples to England. She touched at Gibraltar, and there left her deck load, consisting of brandy, and sailed from thence for the United States. On 3 August, 1812, she received intelligence of the war between the United States and Great Britain, and changed her course for England. She was afterwards captured by the British, and sent into Cork, Ireland, and acquitted, and there disposed of her cargo. After seven months detention in Cork, she proceeded to Liverpool in ballast. At Liverpool, she took in the cargo in question, purchased by Samuel Welles, one of the claimants, then in England, from the proceeds of the cargo brought from Naples, and sailed from Liverpool for Boston May 9, 1813. On 2 June following, she was captured by the privateer America, John Kehew, commander, and libeled as prize in the District of Massachusetts.
When the Alexander sailed from Naples, she and her cargo were owned one-half by the claimants and the other half by W. & S. Robinson of New York.
The master, on his examination upon the standing interrogatories, stated that the vessel belonged to J. & S. Welles and W. & S. Robinson.
He also stated that on his arrival in the United States, he delivered to the chief clerk of J. & S. Welles, of Boston, bills of lading, invoices, and letters relating to the vessel and goods. These papers were never produced by the claimants.
John Welles, of Boston, claims the vessel and cargo
for himself and Samuel Welles, alleging that Samuel Welles, in London, purchased, on their joint account of the agent of W. & S. Robinson their half of the brig and the proceeds of the Naples' cargo before the purchase of the cargo in question. The United States also interposed a claim to the vessel and cargo as forfeited under the nonimportation act.
In the district court the claim of J. & S. Welles was rejected, and the property condemned to the United States. From this decree the captors and claimants appealed.
In the circuit court the property was condemned to the captors. From this decree the United States and the claimants appealed.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as follows:
The principles settled in the case of the Rapid decides this cause so far as respects the character of the Alexander and her cargo. In open sea, unpressed by any peculiar danger, with a full knowledge of the war, she changes her course and seeks an enemy's port. If such an act could be justified, it were vain to prohibit trade with the enemy. The subsequent traffic in the enemy country, by which her return cargo was obtained, connects itself with this voluntary sailing for an enemy port; nor does the circumstance that she was carried by force into Ireland, when her actual destination was England, break the chain. The conduct of the Alexander is much less to be defended than that of the Rapid.
But it is alleged by the claimants that in this case there was no actual capture. This allegation cannot, in the opinion of the Court, be sustained. That the America took possession of the Alexander with the intention of making prize of that part of her cargo which might be deemed British is not controverted. How was this intention to be executed, how was this part of the cargo to be libeled, if it was not captured? And if such part of the cargo as might eventually be British was captured and the whole remained together in the vessel, how can the capture be considered as partial?
But it has been truly observed that it is not noncapture, but abandonment, for which the complainants in fact contend.
But while the whole cargo remains together, claimed by the captor, if it be enemy property, how can any part of it be said to be abandoned? If it was entirely abandoned, for what purpose was one of the crew of the America put on board the Alexander?
The inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is in reason no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor may not be retained as well by a prize master alone as by a considerable detachment from his crew. The cases cited to this point by the counsel for the captors are entirely satisfactory.
With as little reason do the claimants seek to shelter themselves under the instructions of 28 August, 1812. Those instructions apply in express terms to such American vessels as have sailed from Great Britain for the United States "in consequence of the alleged repeal of the British orders in council." A vessel which sailed while those orders were not alleged to be repealed cannot bring herself within these instructions.
But it is alleged that these instructions are still issued, and must mean something. Rather than ascribe their continuance to inattention, the counsel for the claimants would give them a construction in direct hostility with their letter and spirit. Were this reasoning even admitted to be correct, which it is not, it would become the duty of the Court to be astute in finding some object to which they might possibly apply. It is possible, though certainly it is barely possible, that some vessels which sailed from England while the orders of council were supposed to be repealed may not yet have reached the United States. It would be more reasonable to reserve these instructions for such possible case than to apply them to cases which can neither be brought within their words nor their meaning.
The sentence is affirmed with costs.