MALEY while detained for further examination, the vessel was SHATTUCK. seized by a stronger hand and carried away by a superior V. force. If it be objected that no resistance was made; it is answered that none could be made. The vessel was not armed; and the officer was bound by his instructions, to permit the right of search by all the belligerents except France. If it be said, that Maley ought to have claimed the vessel, in Jamaica-the answer is, that he had no right to seize, unless it was really an American vessel. If she was a fair neutral, Shattuck's claim must prevail. If she was an American vessel she would not be condemned; if she was any thing else, he was not interested. Maley's possession, therefore, was lawful and bona fide. If a loss has happened, it has been produced by the vis major of another, to whom the injured party ought to look for reparation, 4 Rob. 284. Maley's possession being bona fide, he cannot be answerable for the mala fide act of another. He detained the vessel only six hours; and she was sailing towards Port-au-Prince, the ostensible place of her destination, when captured by the British ship of war. Even if Maley was mistaken, but acted with good faith, he is not answerable for the loss. 1 Rob. 18. Betsey. That was an American ship and cargo, taken by the English, at the capture of Guadaloupe, in April 1794; and retaken by the French, in June following. The American claimants libelled the English captors for restitution in value. The captors defended themselves by an allegation that the ship had broken the blockade. Sir William Scott, after deciding that there was no defence, on the ground of breach of blockade, stated the question to be, whether the original captors were exonerated of their responsibility to the American claimants. "It is to be observed," says he " that at the time of recapture, America was a neutral country, and in amity with France. I premise this fact as an important circumstance in one part of the case; but the principal points for our consideration are, whether the possession of the original captors was, in its commencement, a legal bonæ fidei possession? And, 2d, whether such a possession, being just in its commencement, became afterwards, by any subsequent conduct of the captors, tortious and illegal? For on both these points the law is clear, that a bona fide possessor is not responsible for casualties ; but that he may, by subsequent misconduct, forfeit the protection of his fair title, and render himself liable to be considered as a trespasser from the beginning. This is the law, not of this court only, but of all courts, and one of the first principles of universal jurisprudence." He then notices two cases very much in point. "The Nicholas and fan was one of several Dutch ships taken at St. Eustatius, and sent home, under convoy, to England, for adjudication. In the mouth of the channel they were retaken by the French fleet. There was much neutral property on board, sufficiently documented," and a demand of restitution, in value, was made by the neutral owners, on the first captors. One of the grounds of the demand was, that the captors had wilfully exposed the property, to danger, by bringing it home when they might Irave resorted to the admiralty courts, in the WestIndies; but on this point the court was of opinion, that under all the circumstances, they had not exceeded the discretion necessarily entrusted to them by the nature of their command. It was also urged against the claimants in that case, that since the property had been retaken by their allies, they had a right to demand restitution in specie from them; and on those grounds the English courts rejected their claims. The other case which he cites, The Hendrick and Facob, is still more like the present. A Hamburghese ship was erroneously taken as Dutch, and retaken by a French privateer, and was lost going into Nuntz. MALEY V. SHATTUCK. MALEY V. SHATTUCK. On demand for restitution, against the British captor, the lords of appeal decided, that as it was a seizure made on unjustifiable grounds, the owners were entitled to restitution from some quarter; that as the French recaptor had a justifiable possession, under prize taken from his enemy, he was not responsible for the accident that had befallen the property in his hands. That if the property had been saved indeed, the claimant must have looked for redress to the justice of his ally, the French; but since that claim was absolutely extinguished, by the loss of the goods, the proprietor was entitled to indemnification from the original captor. After citing these authorities, Sir W. Scott inquires, whether, in the case then before him, the original seizure was so wrongful, as to induce that strict responsibility, which attaches to a tortious and unjustifiable possession. He then states some grounds of suspicion which might have appeared to the captors, as to the fairness of the neutrality, and proceeds to inquire whether any conduct of the captors, after the first seizure, had rendered them liable to the strictest responsibility. "On this point," says he, "I must distinctly lay it down, that the irregularities, to produce this effect, must have been such as would justly prevent restitution by the French. If such a case could be supported, I will admit there might then be just grounds for resorting to the British captor for indemnification; but till this is proved, the responsibility which lies on recaptors to restore the property of allies and neutrals, will be held by these courts to exonerate the original captors." the conclusion of his opinion he says, "if the neutral has sustained any injury, it proceeds not from the British, but from the French; and there is no reason that British captors should pay for French injustice." In So we say in our case, there is no reason that the American officer, who merely stopped the vessel for examination, should pay for British injustice. 2. That the claim to reparation is without merit, and without law. MALEY V. Shattuck was himself the cause of the suspicious circumstances which led to the detention of the vessel by SHATTUCK. Maley, who would have been guilty of a neglect of duty, and disobedience of orders, if he had done otherwise than he did. There was no improper conduct on his behalf, and the whole detention was only six hours. The British were bound to restore the vessel and cargo without salvage, and with damages and costs, if it was really the property of a neutral, and this would have been done, without doubt, if Shattuck had prosecuted his appeal, and been able to prove his property. But having acquiesced in the decree of condemnation as enemy-property, he can never deny the fact. It is conclusive evidence against him. If not conclusive, it is still evidence of probable cause of suspicion. Upon the evidence which caused Maley to suspect, the court of admiralty condemned. This is surely sufficient to justify his detention of six hours for examination. Argument for the appellee. Unless the taking was lawful, or with probable cause, the captor is liable for all the loss. This principle is admitted by the argument for the appellant. The case of the Charming Betsey, 2 Cranch, 64, was stronger in favour of captain Murray than this is in favour of lieutenant Maley; and yet, in that case, this court decided that captain Murray was a trespasser, and liable for damages and costs. If the It is no answer to say, that the loss does not appear MALEY V. SHATTUCK. Two questions present themselves for consideration. 1st. Was the capture lawful? and, 2d. Was there probable cause? A third question may also arise, whether, upon the appeal of Shattuck, the sentence of the district court ought not to be affirmed, as to the items excepted to by the counsel for Maley, 1. The first question is, whether the capture was lawful? On this point the case of the Charming Betsey is conclusive. It was there decided by this court, 1st. That the non-intercourse law did not extend to vessels built in the United States, and bona fide sold before the act of trading. In the present case the vessel was sold before the existence of the act under which her seizure is now attempted to be justified. 2d. That the sale must appear to be made with intent to evade the law. 3d. That a native citizen of the United States may so far change his national character, as to take him out of the operation of that act. The present appellee is the same person whose property was in contest in that case; and although that fact does not appear on this record, yet it appears that he is a person in exactly the same circumstances. But the sentence of the vice-admiralty court in Jamaica, is said to be conclusive evidence against Shat tuck. But the sentence is only conclusive evidence that she was good prize to the British. It does not state for what cause. It contains no direct reference to the libel, or other parts of the proceedings. If it refers to the libel, the property is there stated to be French or Spanish, or to belong to some other enemy of GreatBritain. If you look into the proof exhibited in thất court, it shows it clearly to be the property of Shattuck. |