U.S. Supreme Court The Brig Short Staple and Cargo v. United States, 13 U.S. 9 Cranch 55 55 (1815)
The Brig Short Staple and Cargo v. United States
13 U.S. (9 Cranch) 55
APPEAL FROM THE CIRCUIT COURT FOR
THE DISTRICT OF MASSACHUSETTS
If a vessel be captured by a superior force and a prize master and a small force be put on board, it is not the duty of the master and crew of the captured vessel to attempt to rescue her, for they may thereby expose the vessel to condemnation, although otherwise innocent.
This was an appeal from the sentence of the Circuit Court for the District of Massachusetts, which affirmed that of the district court condemning the brig Short Staple and cargo.
The facts of the case are thus stated by THE CHIEF JUSTICE in delivering the opinion of the court.
This vessel was libeled in the District Court of Massachusetts in March, 1809, for having violated the embargo
laws of the United States by sailing to a foreign port. The fact is admitted by the claimants, who allege in justification of it that the vessel was captured while on her voyage to Boston by a British armed vessel and carried into St. Nichola Mole, where the government of the place seized the cargo.
It appeared in evidence that the Short Staple sailed from Boston about 10 October, 1808, with instructions to procure a cargo of flour and return therewith to Boston unless the embargo should be removed before the commencement of her return voyage, in which case she was directed to proceed to the Island of Gaudaloupe. At Baltimore she took on board a cargo of flour, and sailed thence for Boston about 28 October. She was detained several days in Hampton Roads by contrary winds. During this detention, the British armed vessel Ino put into Hampton Roads for the purpose of repairing some damage sustained in a storm on the coast. The Ino had been in the port of Boston while the Short Staple lay there, and had cleared out for the Cape of Good Hope, though her real destination was Jamaica. The reason her captain has since assigned for this imposition was that by clearing out for the Cape of Good Hope, he was allowed to take on board a larger supply of provisions than would have been allowed had he cleared out for any port in the West Indies.
As soon as the wind was favorable, the Short Staple, together with another vessel likewise bound from Baltimore to Boston, called the William King, put to sea and was followed by the Ino, which soon overtook them and took possession of them both as prize, alleging that they were bound to a French island. The captor put a prize master and two hands on board the Short Staple and sailed in company with them until they fell in with a British ship of war. The captain of the Ino directed the prize master to meet the ship of war and submit to her orders, while the Ino, dreading that her hands might be impressed, made sail to the windward and escaped. After their papers had been examined, the Short Staple and the William King were permitted to proceed on their voyage and were carried into St. Nichola Mole, the place appointed by the captain of the Ino for
meeting them when he was separated from them by the ship of war. They arrived at the Mole about two days after parting from the Ino, which followed them and entered the port soon after them. The government of the place insisted on detaining one of the vessels, as provisions were scarce at the Mole, and the Short Staple was given up to them. Her cargo was landed under the direction of the government, and purchased at about $32 per barrel. Having received about $1,200 in part pay for the cargo, the captain of the Short Staple sailed to Turk's Island and loaded her with a cargo of salt, with which he returned to a port in Massachusetts, where his vessel was seized as having violated the embargo laws. The William King appears to have been carried to Jamaica and there liberated without having been libeled. The Short Staple was condemned in both the district and circuit courts, and the case is brought before this Court by writ of error.
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case, delivered the opinion of the Court as follows:
It has been contended by the plaintiffs in error
1. That the Short Staple, being a registered vessel and having given bond as required by law for relanding her cargo in the United States, is not liable to forfeiture if she has violated the condition of that bond.
2. That her sailing to a foreign port, being under the coercion of a force she was unable to resist, is justifiable under the laws of the United States.
The first error has been pressed with great earnestness by the counsel for the plaintiffs, but the Court is not convinced that his exposition of the embargo acts is a sound one. On this point, however, it will be unnecessary to give an opinion, because we think the necessity under which the claimants justify their going into St. Nichola Mole is sustained by the proofs in the cause.
It is not denied that a real capture and carrying into port by a force not to be resisted will justify an act which, if voluntary, would be a breach of the laws imposing an embargo. Nor is it denied that if such capture be pretended, if it be made with the consent and connivance of the parties interested, such fraudulent capture can be no mitigation of the offense. The whole question, then, to be decided by the Court is a question of fact. Was this capture real -- was the force such as the Short Staple could not resist, or was it made in consequence of some secret arrangements between the captor and captured?
It is contended on the part of the United States that the circumstances of this case are such as to outweigh all the positive testimony in the cause and to prove, in opposition to it, that the Short Staple was carried into St. Nichola Mole not by force, but with her consent and by previous concert between her owners and the captain of the Ino.
Those circumstances are
1. The arrival and continuance of the Ino in the port of Boston while the Short Staple lay in that port previous to her departure for Baltimore.
2. Her clearing out for the Cape of Good Hope while her real destination was Jamaica.
3. The continuance of the Short Staple in Hampton Roads until the arrival of the Ino.
4. Her capture on a coasting voyage which would not justify suspicion.
5. Her being carried to a port where there was a good market, and there given up, and
6. That the William King, when carried to Jamaica, was also given up without being libeled.
That these circumstances are some of them such as to justify strong suspicion and such as to require clear explanatory evidence to do away their influence is unquestionable. But the Court cannot admit that any or all of them together amount to such conclusive evidence as to render it impossible to sustain the defense.
That the Ino should arrive in the port of Boston while the Short Staple lay in that port is nothing remarkable. It furnished an opportunity of concerting any future plan of operations with the owners of the Short Staple, or of any other vessel, but is certainly no proof of such concert. There is no evidence that the respective owners were acquainted or had any communication with each other, and the whole testimony is positive that no such communication took place.
That the Ino should have cleared out for the Cape of Good Hope when her real destination was Jamaica is sufficiently accounted for. It enabled her to take on board a considerable quantity of provisions, an article in demand in Jamaica, which she would not have been permitted to do had her real destination been known. This may be a fraud in the Ino, but cannot affect the Short Staple.
That the Ino should have arrived in Hampton Roads while the Short Staple remained there, and should have followed her to sea, and have captured her, are unquestionably circumstances which justify strong suspicion
and which would be sufficient for the condemnation of the vessel if not satisfactorily explained, but it is not conceded by the Court that they admit of no explanation. These circumstances are not absolutely incompatible with innocence.
It is proved by testimony to which there is no exception, and which no attempt has been made to discredit, that the Short Staple was absolutely wind-bound the whole time she remained in Hampton Roads, and that she attempted to put to sea before the arrival of the Ino, but could not. Had this capture ever been preconcerted in Boston, the Ino and Short Staple would more probably have contrived to meet on the return voyage of the latter than to have adopted the course of the one waiting in port for the arrival of the other and then sailing out almost together.
The arrival of the Ino in Hampton Roads is completely accounted for. She had suffered by the perils of the sea and put in for necessary repairs. This fact is proved positively, and no opposing testimony is produced.
That the Ino should have pursued the Short Staple on a coasting voyage and have captured her was a wrong not to be justified. It is said to have been so atrocious a tort that its reality is incredible. The fact, however, is completely proved. The master of the Short Staple swears that he was on his voyage to Boston, that his intention was to proceed to that port, that he had had no previous communication with the Ino, and had no expectation of being captured by her or of being turned out of his course. The other persons on board the Short Staple testify to the same facts, as far as their knowledge extends. The owner of the Ino, who was on board, and her officers swear that they had no previous communication with the Short Staple or her owner; that there was no concert of any sort between them; that they were informed by some person on shore, while the Ino lay in Hampton Roads for repairs, that the Short Staple and the William King were on a voyage to a French island; that, expecting to find something which would justify condemnation as prize, they determined to examine those vessels, and
although on examination, they found nothing to justify capture, they still hoped that something would appear in future and that, at the worst, they should incur no risk of damages because they should carry the vessels and cargoes to a good market. In this confidence they determined to take them to Jamaica.
This disposition in the captors, however indefensible, is very probable. It grew out of the state of the two countries, and no individual who was captured in consequence of it ought, if his own conduct contributed in no degree to that capture, to be made the victim of it.
That she was carried into St. Nichola Mole and there given up to the government of the place is in itself a circumstance throwing some suspicion on the transaction and requiring explanation. The testimony explains it. The Ino was separated from her two prizes by a fact which is fully proved and which sufficiently accounts for that separation. That her captain should, when about to leave them, appoint some near port as the place of meeting again was almost of course, and that he should have relinquished one of the vessels to the government of the place ceases to be matter of much surprise when it is recollected that he could not have much expectation of making her a prize; that in fact the capture was made with scarcely any hope of condemnation, but with a certainty that it would produce some additional supply of provisions, and could injure no person. The criminality of this mode of thinking, whatever it might be, was not imputable to the owners of the Short Staple.
It has been contended that, during the separation of the Ino from the captured vessels, a rescue ought to have been attempted. There having been, during that period, but three persons belonging to the Ino on board the Short Staple, they might have been overpowered by the American crew; but the attempt to take the vessel from them was no part of the duty of the Americans, and might, in the event of re-capture, have exposed the vessel and cargo to the danger of condemnation, of which, without such rescue, they incurred no hazard.
The abandonment of the William King without libeling
her is the natural consequence of having been able to find no circumstances of suspicion which might tempt the captors to proceed against her. It undoubtedly proves what the captain of the Ino avows -- that he acted under a full conviction of being exposed to no risk by the capture, though he should reap no advantage from it.
The interest which coasting vessels had in fictitious or concerted captures undoubtedly subjects all captures to a rigid scrutiny and exposes them to much suspicion. The case of the claimant ought to be completely made out. No exculpatory testimony the existence of which is to be supposed from the nature of the transaction ought to be omitted. The absence of such testimony, if not fully accounted for, would make an impression extremely unfavorable to the claim. But where the testimony is full, complete, and concurrent; where every circumstance is explained and accounted for in a reasonable manner; where the testimony to the innocence of the owners and crew of the vessel is positive, proceeding from every person who can be supposed to have any knowledge of the facts and contradicted by none, the Court cannot pronounce against it. This would be to allow to suspicious circumstances a controlling influence to which they are not entitled.
The sentence of the circuit court condemning the Short Staple is reversed and annulled and the cause remanded to that court with directions to decree a restoration of the vessel to the claimants and to dismiss the libel.
STORY, J., stated that he dissented from the opinion of the Court and adhered to the opinion which he gave in the court below, in which he had the concurrence of one his of brethren.