1820. The London district of Georgia, and on the farther proof exhibited in this cause, and was argued by counsel. On consideration whereof, it is DECREED and ORDERED, that the decree of the Circuit Court for the district of Georgia in this case, condemning the cargo of the ship Venus, be, and the same is, hereby reversed and annulled. And this Court, proceeding to pass such decree as the said Circuit Court should have passed, it is further DECREED and ORDERED, that the said cargo of the ship Venus be restored to the claimant; and it is further decreed, that the said claimant pay to the libellants the costs and expenses incurred in the prosecution of this suit. (PRIZE.) The LONDON PACKET.-Merino, Claimant. A question of proprietary interest on farther proof. Restitution de- THIS was the claim of a Spanish subject, to a parcel of hides laden on board of the London Packet, a British ship, at the port of Buenos Ayres, in South America, in the month of June, 1813. The London Packet, on her voyage to London, was captured by the private armed brig the Argus, and carried into Boston for adjudication. On being libelled in the District Court as prize of war, the consul of his Catholic Majesty filed a claim for the property in question in favour of Don Jeronimo Merino, a Spanish subject. The District Court condemned the vessel and the whole of the cargo, except these hides, which were restored to the claimant, the Court being satisfied there was not such proof of enemy's property therein, as to authorize a decree of condemnation. For the ship and residue of the cargo no claim was interposed. From this decree, as to the hides, there was an appeal by the captors to the Circuit Court, where the same was reversed. The Court, although it reversed the sentence which had been pronounced below, expressed its entire satisfaction as to the national character and domicil of the claimant, and that the hides had been originally shipped by him; but condemned the property, because, on the order for farther proof, no affidavit had been offered, either of the claimant or his confidential agent, or clerk, of his interest in the cargo at the time of the shipment. It was considered, that the absence of such a document, so universally expected and required by prize tribunals, unavoidably threw a suspicion over the cause, and being wholly unaccounted for, it authorized a belief that there had been a voluntary, if not a studied omission on the claimant's part. At the same term in which the sentence of reversal was pronounced, but not until after such sentence was known, the affidavit of the claimant, which had been received since the last adjournment of the Court, was produced by the Spanish Consul, with a petition. 1820. The London Packet. 1820. The London that the decree might be rescinded, for the purpose of admitting it into the case, or that the same might be so far opened, for the consideration of the Court, as to make the affidavit of Merino a part of the evidence therein, so as to accompany the other testimony in the appeal to this Court. Upon this application the Circuit Court ordered, that the affidavit should be received by the clerk, and sent up with the other papers de bene esse, subject to the directions of this Court. The affidavit had been taken on an order below for farther proof, but had not been received, as has been stated, when the decree of condemnation was pronounced." Mr. Webster and Mr. Pitman, for the captors, argued, that it was a well-settled principle in the Prize Court, that the onus probandi, lies on the claimant, "In the Prize Court," says Sir Wm. Scott, "where special reasons for deception are perpetually occurring, and where the Court exercises a much more unconfined jurisdiction on questions of property than it exercises in its civil forum, proof of property lies generally on the claimant, and he may be called upon to support the prima facie evidence of a good title which is already exhibited." This burden would have rested on the claimant in the present case if the goods in question had been found on board of a neutral ship; but it is increased by the fact that the property was found on board an enemy's ship, and an enemy's a Vide S. C. 1 Mason's Rep. 14. Ante, vol. II. 371. 1820. armed ship. The maxim as laid down by Grotius, is:" Res hostium navibus presumuntur esse hostium, The London donec contrarium probetur." A presumption which, Packet. nevertheless, may be destroyed by strong proofs to the contrary." In this case, the property was not only found on board an enemy's armed ship, but was unaccompanied by the documentary evidence required to prove its neutrality. No papers were found at the time of capture relating to the cargo, except the bills of lading; and all the letters and invoices were sunk by the order of the master of the London Packet, in the letter bag, as sworn by two of the crew upon their examination on the standing interrogatories. The spoliation of papers, is, therefore, superadded to the fact of the property being found on board a ship of the enemy, destined to an enemy's port; and the claimant is called upon to produce the strongest, and most satisfactory proof to destroy the many presumptions arising from these facts, that, in truth, the property belongs to the enemy. The claimant has had abundant opportunity afforded him to produce this proof. The first order for further proof was made in the District Court the 26th of November, 1813, and the claimant was indulged until nearly the close of the year 1815, in the Courts below, to establish the verity of his claim. Having failed so to do, this Court afforded him further time, and he has had from February, 1816, until this term, a period of four years, to produce plenary proof in a De Jure Belli ac Pac. b. 3. c. 6. s. 6. Bynk. Q. J. Pub. 1. 1. c. 13. Loccenius, l. 2, c. 4. n. 11. 1820. The London reference to a claim so much indulged, and surrounded with so many circumstances of suspicion. If the claimant has failed to produce this proof, the presumption is irresistible, that his claim must be false. In such a suspicious case too, something more is to be expected from the claimant himself, than a mere test affidavit," which is all the evidence (coming from himself) which the claimant has yet furnished. Mr. D. B. Ogden and Mr. Winder, contra, admitted the rule of the Prize Court, that property found on board an enemy's vessel is presumed to be enemy's property: but, for this very reason, they insisted, such a vessel would seldom be made the vehicle of enemy's property intended to be covered as neutral. The records of the Court would show that in a great majority of the cases, where attempts have been made to disguise enemy's property, such attempts have been made by lading the goods on board a neutral vessel, in order to avoid that suspicion on which the rule of law is founded. But in this case, the presumption itself can have but little weight; because it appears in evidence that the claimant was compelled, by necessity, to lade his goods on board an enemy's vessel, there being, at that time none but British ships, at Buenos Ayres, destined for Europe, for which market his goods were intended. Some indulgence is due to the subjects of neutral States, who not having sufficient shipping of their own to carry on their trade, are compelled to resort to the navigation of other coun a The Magnus, 1 Rob. 31. |