#### THE UNITED STATES *v.*THE CARGO OF THE SHIP FANNY, Jennings, master.

*Msent....Toon, J.*

APPEAL from the sentence of the Circuit Court for the oisirict of Connecticut, restoring the property to the *9*air*; t/ianuants.

Under tbe „ course act, of-1809, a vessel from Great rigbt tohia}-off the coast ofthe structionsfrom an(i ¡f necessary, to drop »n-c^eorTMltorm makea bail]"£j.eTMéVbv a matin}- other crew ti-omputa2,”Uniígt,i' wait m the for orders’

The American ship Fanny, was laden at Greenock,in Scotland, with a cargo.of British goods, the proper* y of citizens of the United States, and sailed from thence on the 4ih day of July, 1812, after the repeal of tlte orders in council, and before the war between Great Britain and the United States was known in Greenock. The orders to tiie captain were to proceed to New York *;*but unless he was perfectly sure of being allowed an entrance for ship and cargo, at New York, he was not to go into waters of the United States, hut to send up a pilot boat with his fetters, so that the consignees might fix upon a port of discharge. The master had no knowledge of the War until his arrival on the coast, when lie received it off Montaug point, front a pilot boat, who also informed tha. several British frigates were off Sandy Hook, cap-taring American vessels. ■'Whereupon he despatched tlte pilot boat, with letters for his owners byothe way of New London. Soon afterwards it became calm and the shift drifting too near tlte shore he dropped anchor. In the course of the night it came on to blow agate, and finding it impossible to lay there lie attempted to get under weigh and stand off, but before lie could get- up the anchor and make sail he drifted so far in that lie could not fet.ch.Montaug point, and the pilot informing him that there was good anchorage ground in Fort-pond-bay, .and that would not be safe to keep out, he proceeded with t he ship to that bay, intending to stand out as -soon as the storm abated. Having there cast anchor and rode outthegale, his crew refused to get .underweigh to go out of the waters of the United States, alleging that they understood be. bad a British license, and was going to put his ship *182under the protection of British ships of war and they were afraid of being impressed. He then determined to come out into the sound and there waitfor orders, Witliout going into any pori. He did so, but was boarded about halfway from Fort-pond-bay to the race,Fisher’s island bearing north, and seized by a revenue c utter, carried him into New London, where the cargo was libelled for having been shipped in Great Britain with the knowledge of the master, with intent to be imported into the United States, contrary to the provisions of the non-intercourSe act of 28f/i *June,*1809, *vol.*10, *p.*13. In the district Court the cargo was condemned, but was restored by the Circuit Court. . From this sentence tlie United States appealed.

The cause was argued by Jones, for the United States, and Daggett, for the Claimants, in the absence ot the reporter.

*March 1st.*

MsenL...Todd, *J.*

Johnson, J.

delivered tlie opinion of the Court as follows:

This case bears, every feature of fairness. The voyage was undertaken upon the repeal of the orders ip council. The vessel was laden in the short space of four days, aiid sailed without a knowledge of tlie war. Her destination was alternative — to New York, if she could enter; *it'not, to*a British port. Upon arriving off Montaug, she receives notice of the war, and of. the danger of capture in prosecuting her voyage to New York. A pil<rt boat is then dispatched to New London by the captain with notice to his owners of his situation, and a request for instructions.

To call off for instructions was fair and justifiable $ and to obtain them it was necessary that lie should await the return of the pilot boat. Thus circumstanced, a calm obliges him to drop anchor to prevent his drifting on shore and a storm forces him into a bay for shelter. Whilst there, his crew mutiny, and prevent his leaving the bay, in order to lie off. and await the return of his messenger $ and whilst plying in the waters between *183Montaug.and New ¡London, he is seized by the revenue cutter, and forced into the latter port. We are of opinion that there was nothing cither in action or intention which subjected this vessel to municipal forfeiture, A condenanation is claimed on no other'ground ; aiid the decree of of the Circuit Court must, therefore, he affirmed.

The claims of the several parcels of merchandize seized in the Fanny, rest on the same circumstances, and must likewise be restored.