The Aeolus/Opinion of the Court

by Henry Brockholst Livingston

It is not necessary or important, on this occasion, inquire into the national character of the AEolus, or to ascertain in whom the proprietary interest of the cargo resided, at the time of seizure; because, whether Russian, British, or American, they are both equally liable to forfeiture, if the offence stated in the libel has been committed. The cargo, being avowedly of the growth, produce, or manufacture of Great Britain, it is conceded that a forfeiture must follow, if the fact of a voluntary importation into the United States be made out. Yet, in deciding this question, it is impossible to discard entirely from view some of the circumstances which preceded, and took place after the arrival of this vessel at Bass-Harbour, which, although not immediately connected with any calamity which may have brought her there, are not at all calculated to excite much sympathy or to call for any extraordinary exertion of credulity, while listening to the tale of distress, on which every hope of restitution is now rested.

Mr. Scholtz, a Russian merchant at Archangel, in time of war between this country and Great Britain, and during the existence of our non-importation act, loads at that place no less than five brigs with the products of Russia, which he commits to the care of Mr. Morgan, a merchant at Liverpool, with instructions, as is said, to invest the proceeds of those cargoes in such British manufactures as he might judge suitable for sale in the Havanna. Mr. Morgan, who, at or about the time of loading these vessels, was at Archangel, proceeds to Liverpool, disposes of the cargoes there, charters the Russian brig AEolus, and despatches her for the Havanna, to the address of certain merchants there, who are informed by a letter from him of the origin of this adventure, and that he has sent to them a cargo, in conformity with the orders of his principal, which he begs them to sell at good, or even saving prices, and after investing the proceeds in certain produce, to load the AEolus and send her to Mr. Scholtz, at Archangel. The instructions of Mr. Scholtz, in an affair of so much magnitude, no where appear in the proceedings; but if they were, in truth, of the kind stated by Mr. Morgan himself, in his letter, which has just been referred to, we shall find there was a total departure from them; for not only was the cargo of the AEolus the most unsuitable which could have been selected for a warm climate; but the Havanna, to which alone, by his own account, he was to send the AEolus, was to be her port of destination only in case she could not enter a port of the United States. When we find so great a departure from instructions as would inevitable fix upon the agent a responsibility to the whole extent of the property committed to his charge, we may well be permitted to doubt of their existence altogether, and to suspect that Mr. Morgan is acting in the character of a principal, and not, as he would have us believe, in that of a humble subordinate agent. This suspicion is not diminished, when we find, that although this suit has been pending between two and three years, Mr. Scholtz has interfered with it neither in person, nor has he thought it worth his while to appoint any agent for that purpose.

After the purchase of a cargo principally calculated for a northen market, and worth not less than 104,311 dollars 37 cents, it is committed to a supercargo, to whom no other than verbal instructions are given. This gentleman styles himself a commissioned officer in the imperial navy of Russia; and on his arrival in the United States can speak nothing but broken English. He proves, however, to be a naturalborn citizen of Massachusetts, who had been absent from his country not more than four years, and who, therefore, as may well be supposed, was not long in recovering his vernacular tongue, which we soon find him speaking with as much facility as if he had never been absent from his native state. Mr. Williams, for that is the name of the supercargo, is directed by Mr. Morgan to call off Wiscasset, where he would receive orders from Mr. Wood, who, it seems, although it does not appear how, was fully apprised of the destination of this vessel, and of the time when she would probably be in his neighbourhood. Whence he derived this knowledge, or when, he has not deigned to inform the court, and although claiming so valuable a property for the owners of vessel and cargo, he has shown no authority whatever from either of them for interfering in this way; and when, after a lapse of more than two years and a half from the first institution of proceedings in the district court, interrogatories are addressed to him, for the purpose of discovering who were the real owners of this property, and whether they had appointed him, and when, as their attorney, and some other matters which he alone could have rescued from the mystery in which they are now involved, he produces no authority whatever, and contents himself with informing the commissioners, that being agent of the claimants, he thinks it improper, at that time to answer any interrogatories, and shall, therefore, decline doing so.

The AEolus leaves Liverpool without being furnished with a chart of the Havanna, or the coast adjacent, and two days after her departure the master is ordered by the supercargo to proceed off the port of Wiscasset, which was accordingly done, and all idea of going to the Havanna, if any were ever entertained, appears, from that moment, to be abandoned; and she is accordingly found, after a boisterous and long winter's passage, in a high latitude off the American coast. Now, if there be nothing criminal in a vessel coming on our coast, with a bona fide intention of ascertaining whether under existing laws, she would be permitted to an entry; yet, when a vessel is found in this situation, in a boisterous season of the year, and so very much out of the way of the place to which it was pretended she was destined, if our ports were shut, and then relies on the plea of distress for the coming in, a court will require the most satisfactory proof of the necessity which is urged in her defence.

To make out this necessity, the principal, if not the only witness produced, are the master and supercargo Out of fifteen persons, these two are selected, and relied on to establish this all-important fact. No survey is had of the vessel or cargo either before or after it was discharged. To these two witnesses, if they stated a sufficient distress, which is not conceded, very serious objections lie. The master is so much implicated in all the transactions of this nature, that it must always be more or less hazardous for a claimant to resort to his testimony, when other and less exceptionable witnesses are at hand. Not only some of the seamen on board might have been examined; but why not call on persons residing at the place where the vessel discharged, to examine her, and to give their testimony. Such persons were at hand, for the master speaks of three ship masters who surveyed her, and gave their opinion. As no survey is produced and neither of these ship masters is a witness, the court can take no notice of any opinion they may have entertained or have given to the master of the AEolus. The testimony of the supercargo on this subject, if it made out an adequate cause for coming in, would have been entitled to more credit if he had behaved throughout this transaction in a manner more consistent than he appears to have done. But independent of this conduct, there are parts of his testimony which it is very difficult to believe, and which throw a shade over the whole. He swears that his instructions for Morgan were not in writing, and that he had never received either from him or Scholtz, any letter concerning his voyage. It is incredible that any man should be entrusted with so large a property, without other than verbal instructions; or, at any rate, it is so entirely out of the common course of business, that the court cannot be blamed for disbelieving it. But there are other circumstances which detract much from the credit of these two witnesses. There is every reason to believe from other evidence in the cause, that when the brig came into Bass-Harbour, neither of them thought of justifying their conduct on the ground of necessity. This suggestion was made to them by Mr. Wood, and not until they had been there a week or longer. This fact is proved in a way to admit of but little doubt of its accuracy; not only by the profound silence which was observed on this subject by the master and others, for some time after the arrival of the brig, but by positive testimony, which establishes that the allegation of distress was a matter of concert between the supercargo of Mr. Wood. It also appears by other witnesses in the cause, that the AEolus, notwithstanding the injuries which she had received, might have proceeded to the West-Indies without any other repairs than such as might have been put on her at sea. Upon the whole, the court is of opinion that the coming in of the AEolus was voluntary, and not produced by any distress which could justify the measure, and that thereupon the sentence of the circuit court must be affirmed with costs.

Mr. Justice JOHNSON, dissented.

This valuable vessel, with a cargo worth 120,000 dollars, is claimed as Russian property. She was libelled as forfeited under the provision of the non importation act, and all questions respecting proprietary interest I consider irrelevant to the case. The excuse for putting into the port of Bass-Harboun was distress, and, as in the case of the New-York,c the minority of the court are of opinion, that she ought to have been permitted to store her cargo, repair, re-ship it, and depart. Such evidently was the policy of the law under which she was seized, which had for its object the exclusion of British goods; whereas this seizure legalized their introduction into the country.

It is urged in this case, that a variety of circumstances indicated a fraudulent intention. That the examination of the witnesses exhibits a melancholy view of depravity of morals, I freely admit, but the observation is fully as applicable to the testimony for the prosecution, as that against it.

The two principal circumstances relied on as indicia of fraud, to wit, her clearing out for Havanna, and her having a cargo adapted to a northern market, admit of an explanation perfectly consistent with innocence: For it is well known that a neutral never clears out from a British port to a port of their enemy; and as to her having a cargo adapted to a northern market, it is precisely what she avows, that her intention was to deposite it in that market had the prohibition been taken off on her arrival.

Under these circumstances, it appears to me that the only question in the case was, whether the distress was accidental or factitious. If there had been any fraudulent means made use of to produce the injury sustained condemnation ought to follow. But if produced by causes not within the control of man, even though the distress may not have been deemed sufficient to entitle the party to a permit to unlade and refit, yet it was no sufficient cause for condemnation, and the vessel should have been ordered off. That the distress in this case was not factitious, nor very inconsiderable, there is every reason to believe. The vessel had had a voyage of seventy-five days, nearly double what might reasonably have been provided, for she had shipped a sea which carried away her railings, and washed overboard one of her passengers; her shrouds and bow-sprit were materially damaged, and her water short. Under these circumstances, I must think that this collector was less under the influence of humanity and a sense of duty, than that of avarice, in making this seizure. Had he libelled her as enemy's property, I should have thought the case not destitute of reasonable grounds; but it was not his interest to convert her into a droit of admiralty, and it is not our province, under this libel, to admit any thing into the case which can bear the appearance of charging with one crime, and trying for another.

Decree affirmed.

Notes