U.S. Supreme Court La Nereyda, 21 U.S. 8 Wheat. 108 108 (1823)
21 U.S. (8 Wheat.) 108
APPEAL FROM THE CIRCUIT
COURT OF MARYLAND
Quaere whether a regular sentence of condemnation in a court of the captor, or his ally, the captured property having been carried infra praesidia, will preclude the courts of this country from restoring it to the original owners, where the capture was made in violation of our laws, treaties, and neutral obligations?
Whoever claims under such a condemnation must show that he is a bonae fidei purchaser for a valuable consideration, unaffected with any participation in the violation of our neutrality by the captors.
Whoever sets up a title under any condemnation as prize is bound to produce the libel or other equivalent proceeding under which the condemnation was pronounced, as well as the sentence of condemnation itself.
Where an order for further proof is made and the party disobeys or neglects to comply with its injunctions, courts of prize generally consider such disobediencey or neglect as fatal to his claim.
Upon such an order, it is almost the invariable practice for the claimant (besides other testimony) to make proof by his own oath of his proprietary interest, and to explain the other circumstances of the transaction, and the absence of such proof and explanation always leads to considerable doubts.
Quaere whether a condemnation in the court of an ally of property carried into his ports by a co-belligerent is valid?
This was an allegation filed by the Spanish consul against the brig Nereyda, a public vessel of war belonging to the King of Spain, stating that the vessel had been captured by the privateer Irresistible, John O. Daniels, master, in violation of the laws, treaties, and neutral obligations of the United States. The claim given in by Henry Child, as agent in behalf of the claimant, Antonio Julio Francesche, set up a title in him acquired under a sale in pursuance of a sentence of condemnation, as prize to the captors, pronounced by the Vice-Admiralty Court at Juan Griego, in the Island of Margaritta, in Venezuela. The capture was made under an alleged commission from Jose Artegas, chief of the Oriental Republic of Rio de la Plata, and the prize carried into Juan Griego, as to a port of an ally in the war for adjudication. The capturing vessel was built, owned, armed, and equipped in the port of Baltimore, and having provided herself with the commission, sailed from that port on a cruise, and captured the Nereyda at sea, in the year 1818. The sentence of condemnation was pronounced, and the alleged sale took place in March, 1819, and the name of the captured vessel having been changed to that of El Congresso de Venezuela, and a commission obtained for her as a privateer from the government of Venezuela, she set sail for Baltimore
under the command of Henry Childs, who was the original prize master, where she arrived, and was libeled as before stated. It appeared in evidence that the vessel had continued from the time of the capture under the direction and control of Daniels and Childs, both of whom were citizens of the United States, and domiciled at Baltimore. No bill of sale to Francesche was produced, and no other evidence of his purchase, except a certificate from the auctioneer. A decree of restitution to the claimant was pronounced in the district court, which was affirmed pro forma in the circuit court, and the cause was brought by appeal to this Court.
MR. JUSTICE STORY delivered the opinion of the Court.
This cause was heard at the last term, and an order was then made requiring the claimant to produce a copy of the libel or other paper on which the sentence was founded or to account for the nonproduction of such document, and also requiring the production of further proof of the reality of the asserted sale of the Nereyda, and of the proprietary interest of the asserted owner. The cause has now been argued upon the further proof brought in by the parties, and stands for the judgment of the court.
The Nereyda was a Spanish ship of war, and was captured by the privateer Irresistible, of which John D. Daniels was commander, and Henry Childs (the claimant), a lieutenant, under an asserted commission of the Oriental Republic of Rio de la Plata, and was carried into Margaritta, in Venezuela, and there condemned as prize to the captors by the vice-admiralty court of that island. A sale is asserted to have been there made of her to the claimant, Francesche, after condemnation, for the sum of thirty thousand dollars. She soon afterwards left Margaritta, under the command of Childs, who was the original prize master, and arrived at Baltimore, the place of residence of Childs and Daniels, who are both American citizens, and her subsequent history, after seizure and delivery upon stipulation or bail to the claimant, shows that she has continued exclusively under the control, management, and direction of the same persons.
The order to produce the libel or to account for the omission was made upon the fullest consideration by the court. Whoever sets up a title under a condemnation is bound to show that the court had jurisdiction of the cause and that the sentence has been rightly pronounced upon the application of parties competent to ask it. For this purpose it is necessary to show who are the captors and how the court has acquired authority to decide the cause. In the ordinary cases of belligerent capture, no difficulty arises on this subject, for the courts of the captors have general jurisdiction of prize, and their adjudication is conclusive
upon the proprietary interest. But where, as in the present case, the capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation neutral to them has authority to impugn unless for the purpose of vindicating its own violated neutrality. The courts of another nation, whether an ally or a co-belligerent only, can acquire no general right to entertain cognizance of the cause unless by the assent or upon the voluntary submission of the captors. In such a case it is peculiarly proper to show the jurisdiction of the court by an exemplification of the proceedings anterior to the sentence of condemnation. And in all cases it is the habit of courts of justice to require the production of the libel or other equivalent document to verify the nature of the case and ascertain the foundation of the claim of forfeiture as prize.
Notwithstanding the direct order for the production of the libel in this case, none has been produced, nor has the slightest reason been given to account for its nonproduction. The general usage of maritime nations to proceed in prize causes to adjudication in this manner either by a formal libel or by some equivalent proceeding is so notorious that the omission of it is not to be presumed on the part of any civilized government, which professes to proceed upon the principles of international law. How, then, are we to account for the omission in this case? If, by the course of proceedings in Venezuela, a libel does not constitute any part of the acts of its courts, that could
be easily shown. The neglect to show this or in any manner to account for the nonproduction of the libel, if it exists, cannot but give rise to unfavorable suspicions as to the whole transaction. And where an order for further proof is made, and the party disobeys its injunctions or neglects to comply with them, courts of prize are in the habit of considering such negligence as contumacy, leading to presumptions fatal to his claim. We think in this case that the nonproduction of the libel, under the circumstances, would justify the rejection of the claim of Francesche.
Upon the other point, as to the proprietary interest of Francesche under the asserted sale, there is certainly very positive testimony of witnesses to the reality of the sale to him, and to his ability to make the purchase. And if this testimony stood alone, although it is certainly not, in all respects, consistent or harmonious, no difficulty would be felt in allowing it entire judicial credence. But it is encountered by very strong circumstances on the other side, and circumstances will sometimes outweigh the most positive testimony. It is remarkable that from the institution of this cause up to the present time, a period of nearly four years, Francesche has not by any personal act made himself a party to the cause. He has never made any affidavit of proprietary interest; he has never produced any document verified by his testimony; he has never recognized the claim made in his behalf; he has never, as far as we have any knowledge, advanced any money for the defense of it. Yet the brig is admitted
to have been a valuable vessel, and was purchased, as is asserted, for the large sum of thirty thousand dollars. Upon an order of further proof, it is the usual and almost invariable practice for the claimant to make proofs on his own oath of his proprietary interest, and to give explanations of the nature, origin, and character of his rights and of the difficulties which surround them. This it is so much the habit of courts of prize to expect that the very absence of such proofs always leads to considerable doubts. How are we to account for such utter indifference and negligence on the part of Francesche as to the fate of so valuable a property? Is it consistent with the ordinary prudence which every man applies to the preservation of his own interest? Can it be rationally explained, but upon the supposition that his interest in this suit is nominal, and not real?
This is not all. Immediately after the ostensible sale to Francesche, the Nereyda was put in command of Childs, an American citizen who was an utter stranger to him as far as we have any means of knowledge, and sailed for Baltimore, the home port of the Irresistible and the domicile of Daniels and Childs. There is no evidence that she has ever revisited Margaritta, and there is positive evidence that she has, for the three last years, been in habits of intimacy with the ports of the United States. Where are the owner's instructions given to the master on his departure for Baltimore? Where is the documentary evidence of Francesche's ownership? Where are the proofs of his disbursements for the vessel
during her subsequent voyages? From the time of her voyage to Baltimore, she has remained under the management of Daniels or Childs or some other apparent agent of Daniels. She has undergone extensive repairs, her rig has been altered, heavy expenses have been incurred, and a new master has been appointed to her. Under whose authority have all these acts been done? Where are the orders of Francesche for these acts? Daniels has constantly been connected with the vessel; he has superintended her repairs; he or his agents have paid the bills; he is the reputed owner of the vessel, and he has been consulted as to the material operations. How can all these things be, and yet the real owner be a foreigner, a Venezuelian? How can he be presumed to lay by without any apparent interposition in the destiny of his own vessel?
There are some other extraordinary circumstances in the case. The Nereyda arrived at Margaritta under the command of Childs as prize master, and in a few days afterwards Daniels arrived there with the Irresistible. The crew of the latter vessel ran away with her, and Daniels then sailed in the Nereyda in pursuit of the privateer, and of course on a voyage for his own peculiar benefit. How is this reconcilable with the supposition of a real sale to Francesche? What interest had the latter in regaining the Irresistible or subduing a revolted crew? Why should his vessel, after that object was accomplished, have gone to Baltimore? Why should he entrust to strangers, for a voyage in which he had no apparent interest,
so valuable a property? If he made any contract for that voyage, why is not that contract produced? These are questions which it seems very difficult to answer in any manner useful to the asserted proprietary interest of Francesche. Yet the facts, to which allusion is here made, are drawn from the further proof of the claimant, and this further proof, it is not immaterial to observe, comes not from Margaritta, where Francesche resided, and for aught that appears, still resides, but from La Guayra, with which he is not shown to have any immediate connection.
Looking, therefore, to all the circumstances of the case, the fact of the unchanged possession of the captors, the habits of the vessel, the apparent control of the property by Daniels, the utter absence of all proper documentary proofs of ownership, instructions, disbursements, and even connection with her on the part of the claimant, we think that there is the strongest reasons to believe, that no real sale ever took place, and that the property remains still in the original captors, unaffected by the asserted transfer. The positive evidence is completely borne down by the strong and irresistible current of circumstantial evidence which opposes it.
Upon both grounds, therefore, viz., the omission to produce the original libel or account for its nonproduction and the insufficiency of the proofs of proprietary interest, the Court is of opinion that the cause must be decided against the asserted claim.
If this be so, then, as it is clear that the original
outfit of the privateer Irresistible was illegal, upon the principles already established by this Court, the property of the Nereyda remains in his Majesty the King of Spain, and ought to be restored accordingly. The decree of the circuit court is therefore reversed, and the Nereyda is ordered to be restored to the libellant, with costs of suit.