Court of Vice Admiralty.

NASSAU, N. P. NOVEMBER 12, 1805.

Before his Honour Henry Moreton Dyer, Esq. sole Judge and Commissary.

SAMPSON, PHIPPEN, Master.

DECREE, ON PRETENDED NEUTRAL PROPERTY.

JUDGMENT. This is the case of a ship, captured under American colours, on a voyage from Philadelphia to Havanna, and in respect of which the captors contend for condemnation, on the ground that the same ship and cargo originally came from Marseilles to Philadelphia, with an intention to proceed on her present destination.

In the course of the opinion which I am now called upon to give, it appears to be the most convenient arrangement, that I should first state what is the law upon cases of this description; and then proceed to consider how far the facts of the present case warrant the application of the law.

I shall begin by merely adverting, as a preliminary proposition, to the rule, that the trade of neutrals, between the mother country and the colony of the enemy is illegal; a principle too plain, I apprehend, to be dissented from, and which it would be needless to enforce by authority or argument.

I conceive it to be a rule equally plain, that a fraudulent stoppage in an intermediate neutral port to break the continuity of a voyage, which, if continuous, would be illegal, must be subject to the same penalties as the continuous voyage itself. Whatever some interested defenders of neutral rights may advance, I apprehend the latter principle to be perfectly as clear as the former; and at least I have not heard it controverted by the argument in this case.

Taking the principle then to be clear, the important question in every case of that sort must be, whether the arrival in the neutral port were merely a stoppage in transitu, made with the fraudulent intent of breaking the continuity of the voyage; or whether it effected a complete and bona fide importation into the neutral country; it being clearly admitted, that after such a bona fide importation, and an admixture of the articles with the common stock of the country, it is competent to the neutral merchant to transport them forwards, wherever he pleases.

Several cases have occurred before our superior courts of prize, in which these principles have been discussed.

In the Polly, Lasky, 2 Rob. Ad. Rep. 80. which was the case of an American ship taken on a voyage from Marblehead to Bilboa, with a cargo of colonial produce, which had been brought from Havanna to Marblehead, it appeared that the goods had been legally imported into America, and that the duties had been paid; and under these circumstances, the High Court of Admiralty decreed for restitution.

In the Penelope, Flagg, (Court of Appeals, 10th June, 80) the vessel was taken on a voyage from Charleston to Malaga, with a cargo of sugar and tobacco, which had been brought from Havanna to Charleston, in another vessel belonging to the same American owners. But that cargo appearing by this evidence to have been lawfully imported into America, the Lords restored it.

In the Mercury, Roberts, (Court of Appeals, 28th July, 1800 and 18th January, 1804) the voyage was from Charleston to Hamburgh. The cargo, sugar, which had been brought in the same vessel from Havanna. The manifest described the cargo to be laden at the port of Charleston, and there was an attestation of the master, annexed to the same instrument, that the goods had been legally imported into America, and the duties thereon paid or secured. But it appeared by other and indisputable evidence that not one article of the cargo had been landed since the ship left Havanna; and that the sole purpose of touching at Charleston had been to obtain a new set of

papers for the voyage to Europe. Under these circumstances, the property was condemned.

In the Eagle, Weeks, (Court of Appeals, 15th May, 1802) there was a voyage from Philadelphia to the Havanna, with a cargo of bar-iron and nails, which had been brought from Bilboa to Philadelphia. Further proof was ordered to show the nature of the importation of those articles into America, and to ascertain the fact whether the duties had been paid. Very full further proof was subsequently exhibited, by which it appeared, that the duties on importation had been actually paid; and that the two voyages were perfectly distinct transactions. And upon this proof the Lords pronounced for restitution.

The Essex, Orne, (Court of Appeals, June, 1805) was the case of an American vessel captured on a voyage from Salem to Havanna, with a cargo which had been in the first instance brought from Barcelona to Salem, and there landed and warehoused; and within about three weeks afterwards, reshipped and sent forward in the same bottom. The usual bond had been given for the duties in America, and there was some appearance that they had been actually paid after the cargo was landed and surveyed; but they had (a very small part excepted) been drawn back on the re-exportation. In that case it would seem, (for no reasons were given) that the Lords considered the original intention of the parties to have been, not to dispose of the cargo in the neutral country, but, to send it on to the colonial port of the enemy; and therefore the property was condemned.

The last cases, which have occurred on this subject, are those of the Enoch and the Rowena, before the High Court of Admiralty, 23d June, 1805. They were two American ships, laden with French colonial produce, bound from Boston to Antwerp. The cargoes had been landed in America in the same manner as in the Essex; but the vessels had come originally from Martinique to America with the same cargoes, on account of the same neutral owners. Sir William Scott inferred, from all the circumstances of these cases, that the original

design was a voyage to Europe, and on that ground, referring to the Essex as an authority, he pronounced both ships and their cargoes to be subject to condemnation.

The rule laid down by the late decisions (and which it is my duty to observe in cases where it applies) I conceive to be this: That it is incumbent on the claimant to show that the original intention on his part was, that the arrival in the neutral port should completely end the one voyage; and that the subsequent voyage in which he was interrupted was a new, original and distinct speculation; in short to negative any presumption of a colourable attempt to evade the penalties of a direct trade.

It is no secret that much clamour has been raised against the exalted Court whose recent decisions I have just adverted to; and that these decisions have been arraigned, as being inconsistent with the principles laid down in the former case of the Polly, Lasky. For my own part, I cannot see any just reason for that assertion.

The language which, as a belligerent nation, we have been uniformly authorized by every principle of common sense and every doctrine of the law of nations, to hold on this subject, may be couched in the following terms:

"You, the neutral, while you shall be protected in all your former rights and privileges, shall not interfere in any new trade; which by benefiting our enemy, shall arrest the influxion of our force, and disconcert the operations which the law of arms authorizes us to direct against him; in peace, you were not allowed to trade between the parent state and the colony of our enemy, therefore you must not do so in war; neither shall you be at liberty to carry on covertly and indirectly, that trade which is thus interdicted in its open and direct shape. Carry on that commerce, which you were always permitted, between the parent state and your own country: pursue the same intercourse between your own country and the colony, which was formerly indulged to you. But when we find your vessels carrying to the hostile colony the produce of the mother country, or to the mother country the productions of its colo

nies, satisfy us plainly, honestly and substantially, that the articles carried in either case were drawn from your common mercantile stock (into which they had been formerly incorporated by a bona fide importation) and that they were not originally brought to the neutral port with an intention of transmission to the ultimate point of hostile destination."

In conformity with this doctrine, our courts of prize did certainly at one time consent to admit, as the test of a bona fide importation, that the goods should be landed and the duties upon importation paid in the neutral state. But when in a longer course of experience, cases should arise, in which we find that articles are landed but to be reshipped, and that duties are paid, which are presently afterwards drawn back upon reexportation; or rather that a mere security for the payment is taken, which is only to be enforced in the event of the articles remaining in the neutral state; have we not a just right to say, that we will no longer consider those two acts as exclusive tests of honest importation; and that we expect the fact of such an importation to be established by other and more convincing evidence? And I should be glad to know on what just grounds. of argument we can be said in making this demand to recede from our original principle. But I forbear to attempt a defence of that most upright and eminent Judge, whose talents and whose virtues far transcend my feeble praise, and are best rewarded by the united testimony of an applauding nation.

The principle then, I must assume, remains entire, that in cases of this sort, it is necessary to show that the voyage did end, or was intended to end, in the neutral country, to which the vessel belongs, and that there was no projected communication between the hostile ports.

A distinction, however, is attempted as to this particular case; and it is contended by the claimant's counsel, that, with whatever justice these doctrines may apply to an indirect trade between the mother country and the colony of the same enemy, yet that the case of a circuitous trade from the parent state of one enemy to the colony of another is different; that all the cases,