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THE MERRIMACK.

March 12, 1814

THE MERRIMACK.


THIS was an appeal from the decree of the Circuit Court for the district of Maryland. The following are the material facts of the case: The ship Merrimack, owned by citizens of the United States, sailed from Liverpool for Baltimore, a few days after the declaration of war, by the United States against Great Britain, was known in that country, having on board a carge of goods shipped by British subjects, and consigned to citizens of the United States. On the 25th of October, 1812, she was captured, in the Chesapeake bay, between Annapolis and Baltimore, by the private armed vessel Rossie, Johua Barney, commander. The goods, being libelled as prize in the District Court of Maryland, were severally claimed by sundry citizens of the United States. These several claims, and the circumstances connected with them respectively, were thus stated by MARSHALL, Ch. J. in delivering the opinion of the Court: William and Joseph Wilkins, merchants of Baltimore, claimed the goods contained in eleven cases and one bale marked W. J. W. These goods were made up for them, in pursuance of their orders, before the war was known in Great Britain, by a manufacturing company, one member of which, Thomas Leich, resided in Leicester, in Great Britain, and the other, Edward Harris, was an American citizen residing in the United States. The bill of parcels was in the name of Messrs. William and Joseph Wilkins. This paper also served for an invoice, and there was no other on board for these goods. The bill of lading was in the name of Edward Harris, who was the consignee. The goods were accompanied by a letter from Thomas Leich to Edward Harris, dated Leicester, the 29th of July, 1812, in which he says, 'With this you will receive bill of lading of 11 cases of worsted and cotton hosiery for Messrs. W. and J. Wilkins, Baltimore, and with insurance to 892l. 5. It is a large sum, but, from what I can learn, they are very respectable. Indeed Mr. Brown of the house of Chancellor & Co. came with him, and seemed almost offended that did not send the cotton hose he ordered before, and said he would grarantee the amount of the worsted goods, therefore must have offended him if did not comply. Have not sent but about half the cotton goods they ordered,' &c. 'informed them that we thought it necessary to secure our property to ship all to you, as you could prove that they were American property by making affidavit they are bona fide your property. As our orders in council are repealed, hope your government will be amicably inclined as well, and that trade will be on regular footing again, but for fear there should be some other points in dispute, I shall send you, and our friends through your hauds, all the goods prepared for your market which you'll perceive is very large.' 'Hope you will approve of my sending all, and as there may have been some alterations in some of your friends, shipping the to you gives the power of keeping back to you.' There was also on board, a letter dated Leicester, 22d July, 1812, signed Harris, Leich & Co. and addressed to Messrs. Wm. and Joseph Wilkins, merchants of Baltimore, in which they say, 'The repeal of the orders in council having been agreed on by our government, we have availed ourselves of the opportunity of sending the greater part of your spring and fall orders,' &c. 'As we are not certain that your government will protect British property, we have thought it right to ship all ours under cover to Mr. Harris, who can claim as his own bona fide property, and he, being a citizen of the United States, thought proper to use every precaution, having received some unpleasant accounts about your government having agreed on war with this country, which we hope will not be the case.' 2. McKean and Woodland, citizens of the United States, claim sundry parcels of goods, part of the same cargo, as their property. These goods were purchased by Baily, Eaton and Brown, merchants of Sheffield, in pursuance of orders from the Claimants. They were shipped to Robert Holladay, also an American citizen. The bill of lading was to Robert Holladay, 'on account and risk of an American citizen.' The invoice was also headed to Robert Holladay. A letter from Baily, Eaton and Brown to Samuel McKean, dated 11th July, 1812, says, 'A few days ago we received a letter from Mr. Rogerson, of New York, informing us that the partnership of Messrs. McKean and Woodland was dissolved, but he does not say whether you or Mr. Woodland continue the business, or whether both of you decline it. We have purchased about 3,000l. sterling of goods by order of the late firm, and on their account, most of which have been purchased and paid for by us, from fifteen to eighteen months ago, and have been on our hands waiting for shipment. We have this day given orders to our shipper at Liverpool, to put them on board a good American vessel sailing for your port with a British license; but from the uncertainty we are in respecting the particulars of your dissolution of partnership, and, in fact, not knowing whether to consign them to you or Mr. Woodland, we have finally concluded to consign them to Mr. Holladay, with whom you will be pleased to make the necessary arrangements respecting them.' 'We have addressed the invoice to Mr. Holladay to your care; and directly on receiving it, if he should not be in Baltimore, you will pleace advise him of its arrival.' The residue of the letter contains their reasons for hoping that Mr. McKean will not insist on the usual credit, but will remit immediately on receiving the goods. This request is founded on their having been so long in advance for the purchase of them. Messrs. Baily, Eaton and Brown addressed a letter to Mr. Holladay, dated the 10th of July, 1812, in which they say, 'Enclosed you will receive invoices of sundry goods for Messrs. McKean and Woodland, which complete their orders.' They then assign the same reason for shipping the goods to Mr. Holladay, that is given in their letter to Mr. McKean; and, after directing him to arrange with Mr. McKean, add, 'We cannot view this consignment at all in the light of an intercepted shipment coming within the meaning of the articles of agreement between you and us.' This letter also contained a proposition for immediate remittance, founded on the time which had clapsed since the goods were purchased. This proposition, they say, is made to all their friends in the United States, and they hope none will refuse to accede to it. 'But,' they add, 'in thus acting, we have left the matter to the free and unbiassed will of our friends, and they are certainly upon honor.' 3. Messrs. Kimmel and Albert, merchants of Baltimore, claimed seven packages of goods on board the Merrimack, which were purchased, in pursuance of their orders, by Baily, Eaton and Baily. The invoice, bill of lading, and letters, addressed (one by the consignors and the other by the shipper, who was their agent) to Messrs. Kimmel and Albert, concur in showing property in the Claimants. But all these documents and letters are inclosed in a letter of the 5th of August, 1812, written by Baily, Eaton and Baily to Samuel McKean. In this letter, the writers refer to a former letter of the 3d of July, in which they informed Mr. McKean that they should, on the recommendation of their general agent, Mr. Hollaway, inclose their invoices and bills of lading for the adjacent country to him, and requested him to make inquiries into the circumstances of their correspondents, and be regulated, as to putting the letters, &c. into the post-office so as to reach the persons to whom they might be addressed, by the result of those inquiries. Messrs. Baily, Eaton and Baily indulge the hope that the repeal of the British orders in council will restore peace between the two countries, in which event McKean is still to be governed by their letter of the 3d of July. 'But,' they add, 'if, when you receive our invoices and bills of lading, a state of war should really continue, it will be proper not to deliver these goods until you have received the amount of the invoices from the consignees, in cash.' 4. John H. Browning & Co. were also Claimants of part of the cargo. This claim stood on precisely the same principles with that of Kimmel and Albert. The documents given in evidence, were, in effect, the same, and were enclosed in the same letter from Baily, Eaton and Baily to Samuel McKean. It was contended by the captors, in the District Court, that, from the papers and letters on board, it appeared that the goods were not sold and delivered in England, so as to vest the property in the Claimants, but were sent to the agents of the shippers in the United States, to be delivered or not, according to their discretion: consequently, that the property was not changed, and the goods, therefore, were liable to capture as British property. Restitation was decreed in the District Court, and the decree was affirmed in the Circuit Court. An appeal was taken to this Court, where the captors pray condemnation on the same grounds as in the Courts below. HARPER, for the Appellants, After stating the facts of the case, argued that the claims of the captors to the several parts of the cargo in question all rested on the same principle; viz. That no transfer of the property had taken place at the time of the capture. The shippers were British subjects. 1st. As to the property claimed by William and Joseph Wilkins. It appears, from the evidence introduced into this part of the cause, that the goods were not to be delivered to the Claimants, until they had come first to the hands of the shippers' agent, who was to decide upon the solvency of W. and J. Wilkins, and to regulate himself accordingly, with regard to the delivery of the goods. He even had a power, under certain circumstances, to make them his own. W. and J. Wilkins were also to have an option, either to take the goods or not. But a more powerful argument than either, is, that the shippers themselves, in their letters both to the censignee and the Claimants, denominate these goods British property, and express their apprehensions that the American government will not protect it. Again, if these goods had been lost at sea, they could not have been charged to the Messrs. Wilkins, as goods sold and delivered. The loss would clearly have been the loss of the shippers. The property in this part of the cargo cannot, therefore, be considered as having been vested in W. and J. Wilkins. It was clearly in the British shippers, both at the time of shipment, and at the time of capture. The claim of the Messrs. Wilkins ought, therefore, to be rejected. 2d. As to the claim of McKean and Woodland, HARPER, stated the facts, and prayed condemnation on the general principle that the property had not been transferred. 3d and 4th. In opposing the respective claims of Kimmel and Albert, and of John H. Browning & Co. the counsel for the captors argued on nearly the same grounds as in the case of W. and J. Wilkins; and, in addition thereto, he urged the condition of payment which was annexed to these two cases, and which was to be performed before the delivery of the goods to the Claimants. He also made a second point, in regard to all the clai as, viz. That, admitting the goods to have been the property of American citizens, yet, since the declaration of war was known in Liverpool, at the time of the shipment, the Claimants are to be considered as having been engaged in a hostile trade, which gives the property an enemy character, and subjects it to condemnation. The shippers on this supposition, must be looked upon as the agents of the Claimants and the acts of agents, are, in law, the acts of their principals. PINKNEY, contra, for the Claimants. If the title of the Claimants be good in equity, it is sufficient; but it is good at law, as well as in equity. In examining the several claims, I shall follow the order which has been pursued by the counsel for the captors. First, as to the claim of W. and J. Wilkins. The invoice and bill of parcels show the purchase by the Claimants. The bill of parcels is always good evidence, in an action on a policy, to show interest. The invoice corresponds with the bill of parcels and is not contradicted by the bill of lading. Leich's letter to Harris speaks of the goods as being 'for Messrs. W. and J. Wilkins.' These circumstances are strongly in our favor. It has been urged, however, on the other side, that the property of the goods could not have been in the Claimants at the time of capture, because, 1st. There was a condition of payment, without complying with which, the goods were not to be delivered; and 2d, because there was a power vested in Harris, to keep back the property, in case of the insolvency of the Wilkins's. The first objection is founded on an error in fact. The objection, if applicable to the Claimants of the other parts of the cargo is not so here. It appears, indeed, in some part of the evidence, that an inducement to prompt payment was held out to the Wilkins's, viz. an offer to allow seven per cent. discount for prompt payment; but there was no express condition of payment. The second objection, viz. that Harris was empowered to keep back the goods, in case of the insolvency of the Claimants, is easily answered. Insolvency of the parties was the sole ground on which Harris could retain the goods; but this is only the same power which the shipper himself would have had by the general law in maritime cases, if he had consigned the goods directly to the Wilkins's. It is the general law, in case of the insolvency of the consignee, that the shipper may stop the goods in transitu in itinere, although purchased in England, if the purchase was on credit. The intervention of Harris, in this case, merely gives a facility to the right which the shippers before possessed. 4 Rob. 21, 25. The Josephine. It is also urged, that the shippers themselves, in their letters, have denominated the goods in question, British property, and expressed an apprehension that it would not be protected by the American government, and have therefore suggested to Harris, that he could swear they were his. This objection possesses little weight. A mere attempt to conceal belligerent property only deprives the party of the benefit of further proof, but is not a ground of confiscation. 4 Rob. 161, 195. The Madonna delle Gracie. Gregory's case. 2d. As to the claim of McKean and Woodland. Two objections to this claim, arising from the letter of Baily, Eaton and Brown to McKean, have been urged by the captors. 1st. The consignment to Holladay. 2d. The expectation of the shippers that McKean and Woodland would pay cash. The consignment to Holladay needs no farther explanation than is to be found in the letter which states the fact. The shippers, having heard that the partnership of McKean and Woodland was dissolved, were uncertain to which of them the consignment ought to be made, and therefore determined to consign the goods of Holladay. But the property vested in McKean and Woodland, notwithstanding this intermediate consignment. In a Court of prize, such intermediate consignment is not considered as altering, in any degree, the nature of the case.

The opinion of the court was delivered by: 2d. Though the letter from the shippers requests an immediate cash payment, there is no express condition to that effect: there is merely an appeal to the justice and honor of the Claimants.

An additional proof that the property was in the Claimants, is, that it was insured for them and not for the shippers.

It appears that all the bills of lading, except that for W. and J. Wilkins, express the shipments to have been made on account and risk of American citizens generally. The reason for this general mode of expression was the uncertainty of the shippers respecting the dissolution of the partnership.

3d and 4th. We now come to the claims of Kimmel and Albert, and Browning & Co. which depending on precisely the same principle, will be examined together.

In these two cases only, is there an absolute condition of payment. But the goods had been regularly ordered by the Claimants, long before they were shipped. They were finally shipped for them, and in pursuance of their orders. They were delivered to the master of a general ship. The invoice, bill of landing and letters, all concur in showing property in the Claimants. The legal property vested in them by the delivery of the goods to the master. The shipper, having delivered them to the master, was functus officio, and could not thereafter stop the goods on any ground but the insolvency of the consignee, which is the only case of stoppage in transitu authorized by the common law or the law maritime. 1 Rob. 181, 219. The Aurora. (Conversation between sir W. Scott and Dr. Lawrence.) 6 Rob. 325, 6, 7. The Constantia.

Again. Can a captor divest the eventual rights of citizens, or does he take the property subject to the conditions to which it would be subject in the hands of the consignor or his agent? We contend for the latter doctrine. The rights of the citizen become absolute upon his complying with those conditions. In the present case, if the goods had arrived at their port of destination without capture, the title to them would have become absolute in Kimmel and Albert, upon payment to the consignor of the amount required: And, as the captor, according to our doctrine, does but stand in the place of the consignor, we contend that the property will become equally absolute in the Claimants upon making the same payment to him.

We do not admit the dectrine, that property cannot, upon the high seas, pass in transitu, so as to defeat the captors. Suppose it had been agreed that the property should change after it had passed a certain degree of longitude; would not the agreement be carried into effect, upon that degree of longitude being past? But it is not now necessary to contend for this doctrine, because the property in the present case, was vested in the Claimants, upon the shipment, liable, however, to be divested upon a condition.

There is manifest inconsistency in the English prize law. A belligerent lien will be condemned, but a neutral lien will not be protected: neutral property may become belligerent in transitu, but belligerent property cannot become neutral. This Court will adopt the reason of the rule, but not the rule itself.

HARPER, in reply.

In this case, there was no transfer of either an equitable or legal right. In the case of W. and J. Wilkins, the delivery of the goods was only to Harris; or to the master of the ship, who, by undertaking to deliver them to Harris, became his agent, and not the agent of the Wilkins's. So with regard to the invoice, bill of lading and bill of parcels; they were all delivered, not to the Wilkins's, but to Harris or his agent, the master. No evidence of the title of W. and J. Wilkins was put in a course to reach them, but through the agency of Harris, who was not to deliver it at all, but in a certain event. The goods, although purchased by order of the Claimants, were not delivered to them. The Claimants could not have maintained an action for them, either at law or in equity.

McKean and Woodland's case is still stronger against them. The business of that concern was not continued by any person. They have become insolvent. Holladay has the absolute control over the goods. He was to make arrangements with the Claimants or with McKean alone, and was to require cash.

Saturday, March 12th. Absent. LIVINGSTON, J.

MARSHALL, Ch. J.

After stating the facts relating to the several claims in this case, delivered the following opinion of the Court, as to the claims of McKean and Woodland, Kimmel and Albert, and John H. Browning & Co.

1. As to the claim of McKean and Woodland.

The question of property, in this case, depends on certain letters written by Baily, Eaton and Brown, which were found on board the captured vessel. A letter of the 11th of July, 1812, addressed to Samuel McKean, shows in the clearest manner, that the property in dispute was purchased and shipped for McKean and ...


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