#### THE SCHOONER BETSEY.

#### FRANCIS B. FIELD, Administrator, v. THE UNITED STATES. BENJAMIN M. HARTSHORNE et al., Executors, v. THE SAME. JAMES OGDEN, Executor, v. THE SAME. GORDON NORRIE, Administrator, v. THE SAME. HARRIET E. SEBOR, Administratrix, v. THE SAME. THOMAS W. LUDLOW, Administrator, v. THE SAME. THE NEW HAVEN INSURANCE COMPANY v. THE SAME. ROBERT OGDEN GLOVER, Aministrator, v. THE SAME.

[French spoliations

2351, 1184, 1880, 590, 5099, 2928, 5254.

Decided March 29, 1909.]

*On the Proofs.*

The schooner Betsey is seized in 1800 by a French privateer, is taken in and subsequently is illegally condemned at Basseterre. In 1801 she is brought into New York by a Spaniard and sold to one Barnewell. To obtain an American registry he sells her to one of her former owners who obtains the registry in their names on the ground that her registry is lost. Thereafter he reconveys the schooner to Barnewell, who obtains a registry’in his own name. No consideration passed between the parties on either sale. The only questions in the case are whether it comes within the decision in the *Hiram*(23 C. Cls. R., 431, 441), and whether the sale and resale were in violation of law and a fraud upon the United States.

I.In the case of the *Hiram*(23 C. Cls. R., 431, 441) the vessel had been bought in by her master and the amount paid therefor, being the extent of the owners’ loss, was held to measure the liability of France. The decision is not applicable to a case where the owners’ loss was the value of the vessel, and a purchase by one of the owners was for the benefit of a third party after the event of condemnation.

II.The United States may have had the right of electing to declare the re-registration void and the vessel forfeited because it was procured by fraud, but that would not relate back to the liability of France for an illegal condemnation and sale.

III.The theory of the French spoliation claims is that as this Government relinquished to France the claims of our citizens in consideration of the relinquishment by France of her national claims against the United States, this Government thereby took from her citizens private property for public use, for which just compensation should be made.

*507IV.A French spoliation ease is to be determined as one between an American citizen and the French Government, according to the rules of law, municipal and international, and the treaties applicable to the same.

V.Estoppel may be invoked where one by his words or conduct will cause another to believe the existence of a certain state of things and induce him to act in that belief so as to change his previous position.

VI.The previous position of the United States respecting a claim against France was not changed by reason of the acts of one of the owners six months after the illegal condemnation of the vessel.

*The Reporters'*statement of the case:

The following are the facts of this case as found by the court:

I.The schooner Betsey, Francis Bulkeley, master, sailed on a commercial voyage on the 23d day of April, 1800, from St. Vincent for New London and Hartford, Conn. While peacefully pursuing said voyage, on the 20th day of May, 1800, she was seized on the high seas by the French privateer Reunion, Captain Ferry, and carried into Porto Bico. The *Betsey*and cargo were condemned by the tribunal of commerce and prizes sitting at Basseterre, Guadeloupe, on the 22d day of July, 1800, on the following grounds:

1. That the affidavit at the bottom of the sea letter is not signed by the designated officer of the navy.

2. That the crew list is not signed by any officer of the navy.

3. That among the papers of the ship there is no charter party or bill of lading.

II. The *Betsey*was a duly registered vessel of the United States of lllif tons burthen; was built at Wethersfield, Conn., in 1799, and was owned by Francis Bulkeley in the proportion of five-eighths, and by John Morgan in the proportion of three-eighths, both of whom were citizens of the United States.

It appears that in March, 1801, one George Barnewell, of New York, purchased a vessel from a Spaniard called the Belen, lately arrived in New York Harbor. It was found that said vessel had been formerly the schooner Betsey, of which John Morgan had been one of the owners at the time *508of her capture and condemnation. After having ascertained that said Morgan would obtain an American register for the purchaser and having obtained title to said vessel, said Barnewell, on March 21, 1801, by a bill of sale, conveyed said schooner under the name of *Belen*to said Morgan. Said Bill of sale stated a consideration of $3,000. In pursuance of his agreement, said Morgan, on April 1, 1801, at the port of Middletown, Conn., having made oath that he and Francis Bulkeley, her former owners, were the only owners of said vessel, obtained the registry of said vessel as the *Betsey*in their names on the ground that her former register had been lost. Thereafter said Morgan reconveyed said vessel to said Barnewell under her former character of the Betsey, and on April 8, 1801, said Barnewell obtained the , registry of said vessel at the port of New York in his own name.

No consideration passed from said Morgan to said Barne-well for said bill of sale, and .no consideration passed from Barnewell to Morgan upon the reconveyance of said vessel. For obtaining an American register of said vessel, there was paid to said Morgan the sum of $250, which he paid to the underwriters on said vessel, and the -sum of $8.50, the cost and expense of obtaining said register in the names of her former owners. It does not appear to what underwriters said $250 was paid.

After said capture neither Morgan nor anyone for him was concerned in said vessel except for obtaining a United States register for the one lost by her capture.

III. The cargo of the *Betsey*at the time of capture and condemnation consisted of rum, molasses, sugar, and salt, and was owned by Francis Bulkley and John Morgan in the proportion of one-half each.

IY. The losses to the owners by reason of the capture and condemnation aforesaid were as follows:

Value of vessel-$4,000.00

Freight earnings- 1, 850. 00

Value of cargo- 5,907.73

Value of adventure owned by Francis Bulkley_ 233. 58

Premiums of insurance paid on insurance effected before capture- 175. oo

Total-:-12,166.31

*509V. On or about May 21, 1800, after tbe capture herein, said Morgan insured his interest in the vessel in the sum of $2,000 at a premium of 10 per cent, by a policy underwritten by the following persons, all of whom were citizens of the United States, viz:

Jacob Sebor_ $500

Thomas Ludlow_ 500

Van Horne & Clarkson_ 500

Rhinelander, Hartshorne & Co_ 500

Total_2,000

Thereafter the said underwriters paid the said insured the sum of $1,960, being in full for a total loss of the amounts underwritten by them, respectively, less an abatement of 2 per cent.

On May 2, 1800, John Morgan insured his interest in the cargo on board said vessel in the sum of $500 in the New Haven Insurance Company, paying therefor a premium of 11 per cent.

Thereafter, on March 3,1801, said insurance company paid the said Morgan the sum of $344.50 on account of said loss.

On April 1, 1800, said John Morgan, by a policy underwritten in the office of E. Williams, of Hartford, Conn., insured his interest in said vessel and cargo in the sum of $1,200 (one-half on each), paying therefor a premium of 10 per cent, said policy being underwritten by certain persons in various sums, none of whom have appeared in this case.

It appears that the underwriters on this policy agreed to adjudicate said policy at 100 per cent, but it also appears by receipt on said policy that only $500 was paid by the said underwriters.

VI. The losses to Francis Bulkley by reason of said seizure and condemnation were as follows:

Five-eighths value of vessel-$2, 500. 00

Rive-eighths value of freight earnings- 1,156.25

One-half value of cargo- 2, 953. 87

Value of adventure_ 233. 58

Total. 6, 843. 70

*510The losses to John Morgan by reason of said seizure and condemnation were as follows:

Three-eighths value of vessel_$1, 500.00

Three-eighths value of freight earnings- 693.75

One-half value of cargo- 2,953. 86

Premiums of insurance paid on insurance effected before capture_j.- 175.00

Amounting in all to_ 5, 322.61

Less insurance received (including the sum of $250 said to have been paid to the underwriters as set out in Finding II)_ 3,054.50

Net loss_ 2,268.11

VII. The firm of Van Horne & Clarkson was composed of Garret Van Horne and David M. Clarkson. Said Garret Van Horne was the survivor of the firm.

The firm of Rhinelander, Hartshorne *&*Co. was composed of Frederick Rhinelander', William Rhinelander, Philip Rhinelander, Richard Hartshorne, William Kenyon, and Joseph Lindley. Said Richard Hartshorne was the survivor of the firm.

The New Haven Insurance Company was and is a body corporate existing under the laws of the State of Connecticut.

The claimants have produced letters of administration- on the estates of the parties for whom they appear, and have' otherwise proved to the satisfaction of the court that the ■persons for whose estates they have filed claims are in fact the same persons who suffered loss by reason of the seizure and condemnation of the schooner Betsey, as set forth in the preceding findings.

Said claims were not embraced in the convention between the United States and the Republic of France, concluded on the 80th of April, 1803. They were not claims growing out of the acts of France, allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain, concluded on the 22d of February, 1819, and were not allowed in whole or in part under the provisions of the treaty between the United States and France of the 4th of July, 1831.

*511The claimants, in their representative capacity, are the owners of said claims, which have never been assigned except as aforesaid.

*Mr. W. T. 8.*Curtis, *Mr. C. W.*Clagett, and *Mr. John W. Butterfield*for claimants.

*Mr. John W. Trainer*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

On May 20, 1800, the schooner Betsey, Francis Bulkley, master, was captured on her homeward voyage from St. Vincent by a French privateer and the vessel and cargo were condemned as good prize by the French prize court sitting at Basse Terre, in the island of Guadeloupe, June 22, 1800. The illegality of the condemnation is rightly conceded by the defendants.

The vessel and cargo were sold under the decree and became a total loss to the owners, John Morgan and Francis Bulkley. Some ten months thereafter, in March, 1801,.the vessel appeared in the port of New York under the name Belen, owned by a Spaniard, who sold the vessel to one George Barnewell, an American citizen; but Barnewell not having been one of the original owners of the vessel at the time of her condemnation was precluded by law, and particularly by Revised Statutes, section 4165, from procuring an American register. To accomplish that end Barnewell on March 21, 1801, purported to sell by a bill of sale the vessel for the consideration of $3,000 (which was not paid) to John Morgan, one of the former owners thereof, who, on April 1, 1801, procured a register in his own name and in that of his former associate owner, Francis Bulkley, under the original name of the schooner *Betsey.*Within one week thereafter Morgan resold the vessel to George Barnewell, who appears to have paid to Morgan, in addition to the cost of the register, the sum of $250, which sum was paid by Morgan to the underwriters on said vessel, but to which underwriters does not appear. After the resale of the vessel Barnewell on April 8, 1801, procured a register in his own name.

*512The defendants’ contention is (1) that .the case conies within the ruling of the court in the case of the brig *Hiram,*Humphrey (23 C. Cls., 431, 441); (2) that the transfer of the vessel by Barnewell to Morgan was simply to enable Morgan to procure, for the benefit of Barnewell, a register, and that for that reason the transactions were in violation oMaw and a fraud upon the United States.

Respecting the first contention, the brig *Hiram*is not controlling, as in that case the vessel was brought in by the master for the benefit of the owners, and though the amount paid therefor was trifling it was held to measure the extent of the liability of France.

In the present case it is not shown that the vessel was bought in by the owners or by anyone for them, or that any benefit therefrom accrued to them by reason of the condemnation and sale other than the $250 paid by Barnewell to Morgan for securing the register, which sum appears to have been paid to the underwriters, doubtless for the reason that upon the payment of the insurance on the vessel the owners assigned their interest therein to the insurance company, who thereby became subrogated to their rights.

The second ground of defense is based on the fraud of Morgan and Barnewell in procuring the register, and that having perpetrated the fraud Morgan is estopped from now asserting that the vessel was not repurchased for the benefit of the owners, or at least of himself. If the affidavit of Morgan upon which the register was issued was false, the United States had the right of election to declare the ship or its value forfeited *(United States*v. *Grundy,*3 Cranch., 338, 351; *The Venus,*8 Cranch., 253, 276; *Six Hundred Tons of Iron Ore,*9 F. R., 595), but that would not have affected the liability of France which had accrued long prior thereto.

Under the act of our jurisdiction citizens of the United States who, prior to the ratification of the treaty with France concluded September 30,1800, had valid claims on the French Government for indemnity growing out of her illegal acts, are given the right to prosecute the same on the theory that when the Government relinquished the claims of her citizens to France in consideration of the relinquishment by France of her national claim against the United States, she thereby *513took from her citizens private property for public use, for which just compensation should be made. That being so, the Government, in respect to these claims, stands in the right of France, so that whatever defense France had or could have interposed against such claims at the time of condemnation is available to the United States. *{The ship*Joanna, 24 C. Cls. R., 198.)

The case is to be determined as one between the citizen and the French Government “ according to the rules of law, municipal and international, and the treaties of the United States applicable to the same,” as provided in the act of our jurisdiction.

As before stated, the defendants invoke the doctrine of estoppel. Estoppel is a rule of evidence, and was early stated by Lord Denman in the case of *Pickard*v. *Sears*(6 A. & E., 469) :

> “ Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the time.” (See also the case of *Snare & Triest Co..*43 C. Cls., 364, 367.)

It certainly can not be contended that the position of the United States respecting a claim against France was changed by reason of the acts of Morgan and Barnewell in procuring the register, as the rights of Morgan were fixed by the treaty between the United States and France at the date thereof, to wit, September 30, 1800, while the fraud of Morgan in procuring the register was not until April 1, 1801, or six months thereafter. Certainly France could not have interposed this defense, as it is not one which existed at the time the vessel was condemned and sold; and not being a defense which would have been available to France at the time, it can not now be asserted by the United States, in whose right they defend and whose liability they assume under the act of our jurisdiction.

The issue being one between a citizen of the United States and France, he is entitled to have his rights adjudicated on the theory of the illegality of the acts of France in capturing, *514condemning, and selling bis vessel. His subsequent violar tion of a law of the United States, for which the United States had their remedy, can not be interposed to defeat the claim against • France for her unlawful acts. This being true, the doctrine of estoppel can have no application to the liability of France.

The presumption may fairly be indulged that the vessel and cargo under the decree of condemnation were sold and became a total loss to the owners. This view is strengthened by reason of the ownership of the vessel by the Spaniard and the change of the name of the vessel to *Belen.*The Spaniard sold the vessel to Barnewell, who was not one of her former owners, and for that reason he could not procure a register. There is nothing to rebut the presumption of good faith in this sale. But Barnewell, to enable him to procure a register under said section 4165, sold the vessel to John Morgan, one of her former owners. Hence, whatever fraud was perpetrated was by Barnewell, the bona fide owner of the vessel, through Morgan, one of her former owners; and while Morgan permitted himself to be a party to the fraud he was paid $250, which went to the underwriters doubtless as subrogees.

Furthermore, we think it may fairly be presumed that the vessel, when! sold under the decree, was purchased by the Spaniard on his own account, as the contrary is not shown; and the subsequent circumstances justify that presumption.

For these reasons the claimants are entitled to an allowance for the value of the vessel as well as for the cargo and freight earnings, the adventure owned by the master and the premiums of insurance paid, except as to the premium of insurance on $2,000 effected by Morgan on his own interest-in the vessel the day after she was captured, which is not recoverable against the United States. *(Schr. John Eason,*37 C. Cls., 443, 447; *Sloop*Townsend, 42 C. Cls., 140, 145; *Schr. Two*Cousins, 42 C. Cls., 436, 440.)

The defendants make practically the same defense in this case they did in the case of *The*Mercury, Gilpatrick, wherein the court filed findings in May, 1908, refusing to make any allowance. But in that case the owners, while procuring the reregistration of the vessel, failed to show from whom or *515by what means they repossessed themselves of the vessel or whether anyone other than, themselves had ever had any interest therein, the burden of which was upon them. In the absence, therefore, of any showing as to how the owners became possessed of the vessel after the condemnation we applied the ruling in the case of the brig Iliram,, Humphrey {supra); but as in *The Mercury*the amount of the repurchase did not appear, nor the value, character,- nor ownership of the cargo, no allowance -was made.

The findings herein, together with this opinion, will be certified to Congress.