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The Joanna Ward.

The proofs are satisfactory that the vessel and cargo were enemy property, and subject to confiscation as such when arrested; and that, if any portion of the property be neutral, it was captured while making the attempt to violate the blockade of the port of Brownsville. Judgment of condemnation is accordingly rendered against both vessel and cargo.

THE SCHOONER JOANNA WARD AND CARGO.

Vessel and cargo condemned as enemy property, and for a violation of the blockade.

(Before BETTS, J., May, 1862.)

BETTS, J.: This vessel and cargo were captured on the 24th of February, 1862, off the port of St. Augustine, Florida, by the United States steamer Harriet Lane, and were sent into this port as prize. The vessel was documented January 6, 1862, as then owned, in Charleston, by Finlay & Patterson, citizens of that State, and had on board a bill of sale, purporting to have been executed by the said Finlay & Patterson to F. P. Salas, for said vessel, on the 11th of January, 1862, without any consideration being named or being proved to have been paid. Salas hired part of the crew in Charleston, and went himself, as supercargo, in the vessel. All on board of the vessel knew that Charleston and the southern ports were blockaded; and she evaded the blockade of that port in going out, bound on a voyage to the West Indies, with a cargo, from Charleston. Her crew list was certified at Charleston, January 20, 1862, and it was therein stated that the vessel was bound "from the port of Charleston to one or more ports in the West Indies, and back to a port of discharge in the Confederate States," which, as explained in the proofs in preparatorio, meant "anywhere we could get in, at St. John's, Fernandina, or St. Andrews." She sailed under the confederate flag, with a cargo, from Charleston, converted its proceeds into another cargo at Matanzas, and was destined, on her return, for any point or place in the southern States, wherever she could get in. The vessel was built and owned in Charleston, until the sale to Salas in that place, where the bill of sale was executed to him. It is not proved that he had any other residence, nor are papers or proofs put in showing that the cargo was not owned where it was shipped.

Upon these facts the vessel and cargo were, at the time and place of arrest, owned, in my judgment, by persons domiciled and carrying on trade and commerce in Charleston, and were thus enemy property,

The Labuan.

and lawful prize; or, if that cause of seizure might admit of doubt, it is clear, upon the evidence, that the whole voyage from Charleston to the West Indies, and back to a confederate port of the United States, was intentionally planned and put in prosecution to evade the blockade of Charleston; that such blockade was in fact evaded; and that an attempt was made, by the vessel and cargo, to violate the blockade of the coast of Florida.

When the capturing vessel approached the prize, the master and supercargo threw overboard from the vessel a bundle of papers, tied up in a canvas bag. They were taken from the cabin, with two stones fastened to the bundle to sink them, and were thus thrown overboard. Judgment of condemnation and forfeiture of vessel and cargo is rendered.

THE STEAMER LABUAN AND CARGO.

Vessel and cargo restored. The question of costs and damages reserved.

(Before BETTS, J., May, 1862.)

BETTS, J.: In this case a decree for the restitution of the vessel and cargo is rendered. The question of costs and damages against the libellants is reserved for after consideration, whenever the same is regularly called to the attention of the court, at the instance of either party interested therein.

THE SHIP CHESHIRE AND CARGO.

The

After a decision condemning the vessel and cargo, but before the entry of the decree, the libellants moved for an immediate sale of vessel and cargo, as being in a perishing condition. court held, on the facts, that no necessity was shown for such sale.

(Before BETTS, J., May 17, 1862.)

BETTS, J.: This suit was brought to hearing on the preliminary evidence of the ship's papers and the proofs, in preparatorio, on the 10th of March last, and was, after two days' discussion, submitted to the court for decision, with the reservation of a privilege to the counsel to file additional briefs during that week. Although the briefs were frequently asked for by the court, circumstances delayed their being furnished until about the 1st of May. In the mean time, the case had been so far considered by the court that it was enabled, immediately after reviewing the written briefs, (about the 5th or 6th of May,) to conclude

The Cheshire.

the examination of the papers, and an interlocutory decision was rendered, condemning the vessel and cargo to forfeiture as lawful prize. The papers were, with the decision, immediately placed in the hands of the clerk, with a view to the preparation of the formal decree to be entered on the minutes of the court, but such registry, it appears, has not been made, nor has the decree been notified to the claimants.

The district attorney, in behalf of the libellants, on the official report of the prize commissioners, accompanied by the sworn appraisement and statements of Cyrus Curtiss and E. B. Seaman, and the deposition of Walter S. Gove, who has had the custody of the vessel and the storage of the cargo a principal part of the time since their arrival as prize in this port, moves the court for an order for the immediate sale of the vessel and cargo, as being both of them in a perishable and perishing condition. Mr. Edwards, on the part of the claimants in the suit, opposes the application, and reads the affidavits of Robert Mackie, Charles H. Marshall and Washington Durbrow, to prove that the vessel is not perishing, or in a perishable condition, and that the cargo is not perishing, or in a suffering condition, or liable to deterioration, in the situation in which it is now placed.

cause.

The testimony of the claimants' witnesses rests upon a more specific and distinct notice of the facts relating to the state and exposure of the property than is furnished by the affidavits filed on the part of the United States, and relieves the case from all apparent necessity for an immediate sale of the property, by an extraordinary interposition of the court, and without waiting the ordinary course of procedure in the The libellants, holding a decree in the suit, in effect final, since its rendition, possessed the power to compel a sale of the prize at once, upon execution, and do not require the protection of any further order to guard their interests in the recovery. No legal reason is shown for seeking an additional interlocutory order, in place of using the final decree of the court for effectuating the same end within the same period of time. It is suggested by the district attorney, and in effect admitted by the counsel for the claimants, that an appeal will be taken in the suit, immediately on the entry of the final decree, which may lead to delaying final execution on the decree of this court. But the court will not intercept the free use to either party of all appropriate remedies provided by law, where no evidence is given that such election must be attended with palpable loss or damage to the other party, and that a restraint in that respect is necessary to the prosecution of rights involved in the subject of litigation. If property is shown to be in a

The Major Barbour.

state of absolute wastage, or in such predicament that the shortest delay in disposing of it would reasonably lead to imminent peril of its loss or large deterioration, the court will undoubtedly interpose the aid of a summary sale, to avoid the destruction of the property condemned; but, without the pressure of such urgency, the regular course of proceedings will be left to govern the remedy in prize suits, the same as in other civil causes in admiralty.

As I do not regard the preponderance of evidence filed in the cause as showing a reasonable necessity for an instant sale of the property, the application for a summary order to that end is denied, and the libellants are left to enforce the decree by regular writ of execution.

THE SCHOONER MAJOR BARBOUR AND CARGO.

A clear necessity will justify an entrance into a blockaded port, but satisfactory evidence will be required of the reality and urgency of the necessity.

Vessel and cargo condemned as enemy property, and for an attempt to violate the blockade.

(Before BETTS, J., May 28, 1862.)

BETTS, J.: The libel of information avers that the vessel and cargo were captured as lawful prize, January 28, 1862, at the mouth of the Grand Caillou bayou, on the coast of Louisiana, by the United States steamship De Soto. The prize was sent in charge of a prize-master and crew to this port, and was delivered to the prize commissioners here, February 21, 1862.

The firm of Prooss & Oliveros intervene and answer the libel, and claim portions of the cargo, as subjects of the Queen of Spain, and residents of Havana, in Cuba. No other claim is filed. No regular bill of sale, or registry, or other original document, verifying the title. or true ownership of the vessel, was produced from the vessel, or on the trial. The only papers relating thereto, found on board of her at the time of the capture, were a certificate of the British consul at New Orleans, dated June 6, 1861, stating that the vessel was built in New Jersey, in the United States, and registered at the port of New Orleans, September 20, 1856; that J. Roberts is her master, and that John Brunass, of the city of New Orleans, has purchased all the shares in the vessel. That certificate was indorsed at Havana, by the British consul, June 26, 1861. Its effect is continued, by a subsequent indorsement, to December 6, 1861, and is again continued, by an indorsement made under the previous one, by the British consul at Havana, until March 6, 1862, by which time, as it states, "the vessel

The Major Barbour.

must proceed to a British port, to be registered." This last entry was dated January 17, 1862, and was made about a week previous to the seizure of the vessel.

The only further documentary evidence found on the schooner, respecting her nationality or individual proprietorship, consists of two "agreements for foreign-going ships," or shipping articles, in the names of the master and crew of the vessel, on the outward and return voyage in question. The first one is a printed form, filled up, in manuscript, with the names of the master and crew, the date of its execution, and a description of the intended voyage. It purports to have been executed at New Orleans, December 3, 1861, by James Roberts, captain, two mates, five seamen, a cook and a steward, and to be for "a voyage from New Orleans to Havana, and any other port or ports where freight or a cargo may offer, at the discretion of the master, and back to a final port of discharge in one of the British colonies, for a time not to exceed six calendar months." The other agreement is drawn up in manuscript, and is substantially of the tenor of the printed one, containing the same complement of men, but with a change of four names. It purports to have been executed at Havana, January 10, 1862, and is for a voyage from that "port to Matamoras, and from thence to a port of discharge in the West Indies." The capture of the vessel and cargo took place in the vicinity of the mouth of the Mississippi, eighteen days thereafter.

An account of the voyage was given on the preparatory examination, February 27 and 28, by the master and mate of the vessel, one seaman, and two passengers. They were present at the capture. The master and seaman have resided in New Orleans twelve or thirteen years, and are British subjects. The mate is unmarried, is a native of the State of New York, and has no particular residence. The two passengers are Spanish subjects. One, Morey, has resided eleven years in New Orleans, and is married; the other, Prats, is a single man, who lives in Havana.

One of the passengers, Prats, for himself and firm, claims a portion of the cargo. No claimants have intervened for the residue of the cargo. The other witnesses testify that they had no interest in the vessel or cargo. They concur in stating that the capture was made February 27, or 28, a short distance off the western coast of Louisiana; that the vessel belonged to John Bronassas, of New Orleans, who appointed the master; that she has been carrying all kinds of cargo generally between New Orleans and Havana; and that her last clear

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