The Aeolus

by Henry Brockholst Livingston

United States Supreme Court

16 U.S. 392

The Aeolus

APPEAL from the circuit court for the district of Massachusetts.

This vessel and cargo were libelled in the district Court for the District of Maine, as forfeited to the United States, for lading on board at Liverpool, in Great Britain, certain goods which were of the growth, produce, and manufacture of Great Britain, with intent to import the same into the United States, and with the knowledge of the master, and also for an actual importation of the same into the United States. The seizure was made at Bass Harbour, in the district of Frenchman's Bay, by Meletiah Jordan, collector of that district.

A petition was interposed by Joseph T. Wood, of Wiscasset, who styled himself agent of Peter Molus and Israel Rosnel, both of Bjornburgh, in Finland in Russia and also of Frantz Scholtz, of Archangel, in Russia, merchants, and subjects of the Emperor of Russia. The petition stated that Molus, Rosnel, and Scholtz were owners of the brig and cargo; that she sailed from Liverpool in the beginning of December, 1813, with a cargo bound to the Havanna, with liberty and instructions to touch at some port in North America, to ascertain whether, according to existing laws, they could be admitted to an entry, and if not, to receive such orders as the agent of the owners might give. That after a long passage of 76 days' and experiencing severe weather, and the vessel being in a leaky condition, and the provisions growing short, she was compelled to make Bass-Harbour. That there was some expectation at Liverpool, when the AEolus sailed, that a treaty of peace between the United States and Great Britain had been concluded, or was in great forwardness. The petition prayed that the vessel and cargo might be restored to Mr. Wood, on his giving bail for the appraised value. This claim was filed the 14th of February, 1814. At the May term following, Molus & Rosnell claim the brig as their property, and Scholtz claims the cargo as belonging to himself.

In February term, 1815, a rule was made on claimants to produce the log-book at the trial, and an original letter to J. T. Wood, mentioned in the deposition of the supercargo.

Montero, mate of the brig, swore that she sailed direct from Liverpool to the United States. The captain on the passage told him that the vessel was bound to the United States. The captain and supercargo said it was their intention to have gone to Wiscasset, or Portland, where they were to discharge, but owing to the bad state of their rigging, and the wind being ahead, they put into Mount Desert, where they were detained by the custom-house officer. He also states, that it was agreed, in Liverpool, with all the sailors, himself and the cook excepted, that they should come to the United States, and return from thence to Liverpool. About three months after, the mate was examined again, when he told a story so different from the relation which is found in his first deposition, that but little credit is due to him as a witness for either party.

Lingman, one of the mariners of the AEolus, swore, that he was shipped on board that vessel in October last, she then lying in Liverpool, on a voyage to some port in America, and from thence back to some port in Europe.

Daniel Molus, master of the AEolus, testified, that in October, 1813, he came to Liverpool, from Bjornburg in the Brig AEolus. One Lourande, who was master of the brig, having a power to charter her as he might think proper, did charter her to Frantz Scholtz, of Archangel, by his agent, David Morgan, on a voyage to the Havanna, and a port in North or South America. He was ordered by Morgan, the agent of Scholtz, to proceed with the brig to the Havanna, and call off such ports as the supercargo should direct. On the 4th of December, 1813, the brig left Liverpool. Two days after, he was ordered by the supercargo to proceed off the part of Wiscasset, and land some passengers, when he would receive further orders from the supercargo, who expected to find further orders there. On their passage, the brig had thirteen of her chains broken, some of them in the eye round the bolt, and therefore could not be repaired until some of the cargo was discharged. Five of her shrouds were carried away, the bolts in the heel of her bowsprit were broken, and the bowsprit came some in upon deck. The stern boat was, by a sea, stove in pieces at the stern and lost, with several light sails which had been thown into her. The spritsail yard was lost; her waist-rails and boards were wholly carried away by the sea. The binnacle was several times capsized, and the compasses very much injured. One of the passengers was lost overboard. The brig was short of water; and at the time of her arrival on the American coast, the crew was in very great distress, being on a short allowance of water, which was very thick and bad, and not fit to be used until it was boiled, to make it thin. There was no rigging to repair the vessel any longer. On the 17th of February, 1814, a council of the whole ship's crew and passengers was held, and all were of opinion it was very dangerous keeping longer at sea, and were for getting into the first port which could be made. The supercargo reluctantly consented. If he had not, the brig must have gone in, as her condition would have justified the act. In the afternoon of the 18th of February, 1814, the AEolus anchored in Bass-Harbour, after a passage of 75 days, in which every hardship had been experienced. The vessel was a complete wreck, and the strength and spirit of the crew nearly exhausted. She was immediately seized by the custom-house officer, and the papers all delivered up. Shortly after, the supercargo received advice from his agent, who soon came on board himself. This witness speaks of a survey of three ship-masters, and of their opinion; but as no such survey is found in the proceedings, it is presumed that none was made; or, if made, reduced to writing. He further states, that the brig had been repaired while at Bass-Harbour, at an expense of near 3,000 dollars. The cargo was the sole property of Mr. Scholtz, of Archangel, and was put on board by his agent, David Morgan, of London, who employed Richards, Ogden, & Selden, as brokers for that purpose.

Frederic Williams testifies that he was supercargo; that the brig was Russian-expected in England that the non-importation law would soon be repealed. His orders were to proceed to Havanna, and to call off Wiscasset, where he would receive orders from Joseph Wood, agent of Mr. Scholtz, and if restrictions were removed, to enter with the brig; if otherwise, to proceed to the Havanna; had much tempestuous weather, carried away most of their chains, and many of the shrouds. On the arrival of the brig at Bass-Harbour, he wrote to Wood that the brig had been seized, and consulting him what had best be done. He gave up his papers to the deputy-marshall, and took a receipt for them. Wood wrote to him, and also came down to the brig himself, and informed him that the vessel had been seized for an alleged violation of the non-importation law. He received his instructions as supercargo from Morgan, the agent of Scholtz, in London, and they were verbal instructions only. He did not recollect that he had ever received any letter, either from Morgan or Scholtz, concerning this voyage. He is a native of Massachusetts, but had not resided in the United States for about four years previous to the commencement of this voyage. Since the arrival of the AEolus, he has resided nearly two years in New-York. All the papers he had were receipts from the cartmen in Liverpool, and they were bundled together in the cabin, from which place he took them and delivered them to Wood, who, he presumes, has them.

It appears by the testimony of Robert Kelly, that Wood informed him, in the beginning of February, 1814, that he expected a brig from the West Indies, and a Russian brig to call off the mouth of Sheepscot river for orders, and to know whether they can enter. He desires Kelly, by letters which are produced, to keep a good look out for these vessels, to direct the one from the West Indies to proceed to Newport, and to inform the captain or supercargo of the Russian brig, that the laws will not admit of his entering, unless he is in want of something, in which case he may put into the mouth of the river. Kelly cruized off the mouth of the river for about four weeks, when he heard from Wood, that the Russian vessel had put into Mount Desert, and was seized.

Thomas Rice relates a conversation which he overheard, between Wood and a Mr. Pepper, in which the former offered the latter a handsome present to swear that he had been offered money by Haddock and Jordon, to give testimony against the brig, and in which Wood also stated that he had offered the mate money, to contradict the testimony he had given for Jordan.

John Bridges swears, that, being in Liverpool, in November, 1813, with six other Americans, they were applied to by Mr. Richards, of the house of Ogden, Richards, & Selden, who offered to find them clothes, to pay their board while at Liverpool, and to find them a passage to America. He accordingly supplied them with clothes, paid their board eight weeks, and then put them on board the Russian brig AEolus, in which they sailed for Portland.

Samuel Haddock, jun. an inspector of the customs, went on board of the brig when she came into Bass-Harbour, and demanded her papers of the supercargo, which he refused to give up, as he was determined to proceed further to the westward. He understood from the mate, that the supercargo had taken the bills of the cargo from him, and burnt them. He thinks the brig might have proceeded on her voyage to the Havanna, when she came into Bass-Harbour, with such repairs as might have been made on board. None of the officers complained or intimated to him, that the brig had come into Bass-Harbour in distress, nor did they pretend that the cargo was damaged, until they began to break bulk.

By another witness, it appears that, after the seizure, the master of the AEolus, in company with the mate, purchased of him a chart of the Amelia islands, Havannah, and the coast adjacent, observing that he had no idea of going such a voyage when he left England, or he should have provided himself with one.

Abraham Richardson was put on board the brig as an inspector of the customs, when she was seized, and continued on board till the cargo was discharged, which was about 25 days. He overheard a conversation between Wood and the supercargo in the stateroom of the latter, in which Wood expressed a wish that the brig had got to Wiscasset, as he had told the collector at that place that the brig was coming, and that he had offered him 10,000 if he would let her enter. He observed that the collector did not tell him whether he would, but he believed that if the vessel had put in there they would have got her off very easy. The supercargo observed to Wood, that if it was known that he, Wood, was concerned in the voyage it would condemn vessel and cargo. Wood replied, 'You must be very careful not to drop a word about it. We must make it out Russian property, if we can.' The supercargo then remarked, that if the collector would not clear out the brig for Wiscasset, they must make her out as bad as possible, so that she could not be moved, and then bond the cargo; upon which Wood observed, that if it was condemned they should then make a good voyage, as the bonds would not be much more than the double duties. This witness heard no complaints on board of any distress, and believes the AEoulus might have proceeded to the West Indies.

The papers on board represented the vessel and cargo as Russian property. On this testimony the property was condemned as forfeited to the United States, from which sentence the claimants appealed to this court.

     Feb. 18th.
      

Mr. D. B. Ogden, and Mr. Wheaton, for the appellants and claimants, argued upon the facts, that the cargo was not put on board with intent to import the same into the United States, but that the primary destination was to the Havanna, with orders to call off the coast of this country, and to enter, in case the non-importation laws should be repealed. But even if the fact were ever so well established, that the cargo was originally put on board with intent to import it into the United States, congress could not, consistently with the principles of universal law, forfeit the property of foreigners for an act done by them in a foreign port. The putting on board the prohibited commodities with intention to import, is made a distinct, substantive offence, by the 5th section of the act of the 1st of March, 1809, ch. 195. This offence was consummated within a foreign territory. If the vessel had been captured on the high seas, before her arrival in the United States, she would have been taken in delicto, according to any construction by which this section can be applied to foreigners. The legislature might, indeed, intend to confiscate the property of our own citizens, for acts done by them in foreign countries, because their allegiance travels with them wherever they go. But the operation of a statute is generally limited to the territory, or the subjects of the country where it is made.a This section of the act may stand consistently with this construction; but it will be confined in its operation to the conduct of our own citizens. The subsequent coming into the waters of the United States was occasioned by a vis major, and did not constitute an importation in law. To constitute such an importation, there must be a voluntary arrival within a port. An involuntary arrival is not an importation; nor an arrival within the jurisdictional limits merely: there must be a voluntary arrival within some port, or collection district, with intent to unlade.b

The Attorney-General and Mr. Preble, contra, argued upon the facts that the primary destination was to the United States, and that the distress set up as a plea to justify the fact of importation, was fictitious, or created by the act of the parties themselves.

     Feb. 27th.
      

Mr. Justice LIVINGSTON delivered, the opinion of the court, and after stating the case, proceeded as follows:

Notes