The Sarah and Caroline.

grounds, but all proffers of such extraneous aid to her preservation by either party leave the case open for an application, by one claiming a legal right in her, to require a sale of the perishable thing, and have its proceeds put in safety. This is consonant to the ordinary practice in admiralty in suits in rem.

Sale ordered accordingly.

THE SCHOONER SARAH AND CAROLINE AND CARGO. Cargo condemned, on further proof, for a violation of blockade by the vessel.

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

BETTS, J.: This case was called for hearing July 29, 1862, but, on examination, it was found that there was no proof furnished convicting the property of any confiscable offence, and the court ordered the proceedings in the suit to be suspended, and, no person appearing to defend the property seized, or to claim it, gave leave to the United States attorney to offer further proofs within a year and day. On the 15th of September, instant, proofs in preparatorio in the cause were laid before the court. Charles G. Loring, an acting-master in the United States navy, testified that he was present at the capture of the schooner, at the mouth of the St. John's river, in East Florida, on the 11th of December, 1861, by the United States vessel-of war Bienville. The schooner was being towed out of port by a steamer. She was pursued and fired upon by the Bienville, and was then dropped by the steamer, and changed her course, and endeavored to get back into port. She was overtaken by the Bienville, and was found deserted by her crew and anchored at the mouth of the St. John's river. The Bienville was one of the blockading squadron off that port. The schooner was laden with turpentine and a few shingles. She was captured about 6 o'clock in the evening. The port was under an order of blockade, and the vessel was endeavoring to break the blockade when arrested. She was detained by the United States flag-officer at Beaufort, South Carolina, and the cargo seized on board was transmitted to this port.

The vessel was of about fifty tons burden. Letters were found on board of her addressed to Nassau, N. P., but no papers were brought from her into this port with her cargo. This evidence leaves no ground to doubt that the vessel was captured in the act of violating the blockade, and the cargo seized on board of her became liable to forfeiture from that cause.

Decree of condemnation accordingly.

The Actor.-The Shark.

THE SCHOONER ACTOR AND CARGO.

On further proof, vessel and cargo condemned as enemy property.

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

BETTS, J. This vessel and cargo were captured early in March, 1862, in Pamlico sound, North Carolina, by the United States gunboat Ceres, and were brought to this port and here libelled as prize, June 17, 1862, and on return of the monition and notice, no one appearing to defend the property seized, the case was submitted to the court for decision. On examination it was found that no legal proof was furnished of the capture of the vessel and of the cause of it; and on motion of the United States attorney, July 18, 1862, a year and day were allowed to the captors to bring in further proofs.

to

appear

On such proofs being taken and submitted to the court, it is made that the vessel and cargo were seized in Pamlico sound, and belonged to residents within enemy territory; that after the capture the vessel and cargo were sunk at Hatteras inlet in a gale of wind, and were subsequently raised by pilots and brought by them to this port for the captors; and that the crew found on board at the time of capture had left the prize, and have not been brought into this port for examination. No defence having been interposed, and it appearing satisfactorily to the court, on the evidence of witnesses present at the seizure, that the vessel and cargo were enemy property, it is ordered that a decree of condemnation for that cause be entered in the suit. Order accordingly.

THE SCHOONER SHARK AND CARGO.

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

The master, who was part owner of the vessel, and who was the only witness examined in preparatorio, testified that he was ignorant of the blockade; but the court, on all the facts, held that he knew of it.

A loyal citizen, or a resident of a loyal State, cannot, with impunity, employ his vessel in trade with the enemy or in favoring the insurrection.

The omission of the captors of a vessel to bring in the captured crew will not inure to defeat a capture by a government vessel.

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

BETTS, J.: The capture of this vessel and cargo was made by the United States war steamer South Carolina, July 4, 1861, in the Gulf of Mexico, off Galveston bar, the vessel being then in the act of steering into Galveston.

The Shark.

The vessel and cargo were sent by the captors to this port for adjudication, and were here libelled as lawful prize August 24 thereafter. A judgment by default was subsequently vacated at the instance of the master of the vessel, and he was permitted to intervene, and file his claim and answer in the suit, and contest the case before the court on the proofs in preparatorio. The master having been examined before the prize commissioners, and his evidence being offered by the district attorney on the hearing in court, the testimony previously taken, on the order of the court, of a witness not on board of the captured vessel, was, on the motion of the proctor for the claimant, excluded, and the case was heard solely upon the papers found on board of the vessel and the examination in preparatorio of her master.

The vessel was built in Portsmouth, New Hampshire, under the direction of the master, in November, 1860, for the other two owners, resident in Galveston, and was taken thence by the master in Jannary, 1861, and, by agreement at that place with them, the master became joint owner with them of the vessel. She was enrolled, on the oath of ownership made by the master and claimant, at the customhouse in Galveston, January 16, 1861, the master swearing that he owned one-fourth, Theodore Holmes three-eighths, and R. Jameson three-eighths, and that all the owners were residents of Galveston. She was licensed to him on the same proof. The enrolment and license were not changed to the time of her capture.

The master intervened and claimed the vessel for all the owners, and the cargo as carrier for the shippers. On his examination in preparatorio he testifies that he took title to one-fourth of the vessel merely to secure his advances in building and fitting her, and took and retained command of her from the time she was launched, with that object. He also swore that he was a resident of New York, and never had been of Galveston.

The vessel, when arrested, was on a voyage to Galveston from the port of Berwick, Louisiana. The cargo was shipped by Wakefield & Wilder, agents for residents or owners in New Orleans or Berwick, one of whom was on board at the time, consigned to various persons at Galveston. No one intervened as owner for the cargo. It consisted, as appears on the manifests and bills of lading, of miscellaneous articles, malt, hops, sugar, salt, medicines, coils of rope, whiskey, cigars, bagging, &c. Louisiana seceded from the Union January 26, 1861, and Texas passed its secession ordinance March 4 there

The Shark.

after. The ports of Louisiana and Texas were declared to be under blockade by the President's proclamation of April 19, 1861, and, more than two months after that, this vessel and cargo were seized in the act of making the port of Galveston, with the intention, as the captain testifies, to enter that port, having left the port of Berwick, in Louisiana, for that purpose. In this attempt the vessel was intercepted and captured by a vessel-of-war on blockade duty off the port. The master testifies, on his examination, that he had no knowledge or notice of the blockade. Very possibly he may not have received direct personal and reliable notice of any actual blockade already carried into effect, but he had heard that the United States steamer Brooklyn was blockading New Orleans at the Southwest Pass. It has appeared before the court, in the progress of these prize suits, that commanding officers of the navy had assigned and stationed ships-of-war to the duty of blockading ports on the Gulf of Mexico, along our southern coast, about the middle of June, 1861, and the master says that he had, previous to his arrest, made several voyages along the coast of Texas to the different ports, with cargoes of corn, flour, country produce, and merchandise. The court is also judicially apprised that the United States war vessels were active in endeavoring to enforce the blockade, by repeated seizures within the period during which this vessel was probably so employed. These facts, coupled with the knowledge avowed by the master, that a blockading ship was then lying before the mouth of the Mississippi, but a few miles, topographically, from Berwick bay, and with his practice of conveying cargoes to and from New Orleans by the way of Berwick bay, and an intermediate transportation, by railway, of eighty miles, (not by inland navigation, by canal or other water-course,) afford a very strong presumption that this course of business was favored because of the hazards of exposure to blockading cruisers expected to be hovering outside, and that the danger of such exposure could not have escaped the notice of the claimant. I shall, at all events, hold the circumstances sufficiently impressive to require the corroboration of further evidence than the bald assertion of a part owner of the vessel, to satisfy me of his real ignorance of facts liable to be of general notoriety, and which immediately affected his personal interests and employments. Should he deem it important to offer further proofs to this particular, the court will be ready to listen to an application on his behalf to that end; otherwise I shall consider the circumstances as sufficiently importing notice to a person so connected as he was

The Shark.

with the coasting trade along that exact territory, that the government were enforcing the blockade there, and as showing also that he was knowingly concerned in attempts to evade it. This would render him guilty of the double acts of running the blockade out of Berwick bay, and of endeavoring to evade it in making an entrance into a port of Texas.

or not.

But, under the facts in proof in the case, it is of slight importance whether the vessel was technically guilty of a violation of blockade Nor in this case is it of any particular moment to determine whether Patterson is a loyal subject and an actual resident of the city of New York, because he could not, in these capacities, with impunity, employ his vessel in trade with the enemy, or in favoring the insurrection. His property would, in either alternative, be subject to confiscation therefor, both by the laws of prize and the statutory law, and irrespective of his ignorance of the law. (12 U. S. Stat. at Large, 319; 1 Chitty's Law of Nations, ch. 1; 1 Kent's Comm., 66, and notes; The Hoop, 1 Ch. Rob., 196.)

So also the whole of the cargo, and certainly three-fourths of the vessel, were enemy property, and therefore confiscable as prize of war wherever apprehended at sea. The vessel was owned in Texas and the cargo in Texas or Louisiana, and both were in a course of sea transportation, in the use and for the benefit of the enemy. The title made on the oath of the claimant, at the enrolment of the vessel, is all vested in declared residents of Texas. The verbal assertion of the claimant in his preparatory proof will not overbear the proofs in the ship's papers -the enrolment and license-that she belonged to Galveston. Moreover, if she had been nominally transferred to a loyal citizen or a neutral friend, and was still permitted to continue in the enemy's trade, she would be also liable to condemnation for that cause. (The Vigilantia, 1 Ch. Rob., 1; The Princessa, 2 Id., 51.)

The irregularity on the part of the captors in omitting to bring in with the vessel and cargo the crew captured on board, will not inure to defeat the capture by a government vessel. The laches of the officers or crew in conducting the public service cannot defeat the rights acquired by the nation by the seizure. It might be different in case of an arrest by private cruisers.

A decree of condemnation of vessel and cargo must be rendered on both grounds.