#### THE SHIP POLL CARY. HUGH P. P. DRUMMOND, Administrator, v. THE UNITED STATES. SUSAN M. TYLER, Administratrix, v. THE SAME.

[French Spoliations,

4028, 4983.

Decided February 28, 1910.]

*On the Proofs.*

The vessel is captured by a French privateer March 16, 1799, and carried into the port of Grandville. The tribunal of commerce decides that the seizure was in violation of the treaty of 1778; that on account of *“the locality or of*mismanagement” the ship has suffered; that by lack of skill or want of attention the hogsheads of tobacco are found torn open, in the place of storage; and the captain warned of the depredations. The court decrees restitution and damages. The civil tribunal of the department reverses the decree and condemns the vessel and cargo as lawful prize, August 30, 1799. Upon appeal the council of prizes reverses this decision and releases the vessel and cargo without damages, November 29, 1800. The treaty of 1800, signed September 30, 1880, is finally ratified by the retrenchment of the second article on December 19, 1801. Subsequent to the final decree of the council of prizes the captors sell and convey the vessel to one Grant, who conveys her to one Mitchell; and on June 5, 1801, she sails from the port of Grandville with a cargo consigned to merchants in London.

I. Where a vessel illegally seized by a French privateer had not been definitively condemned on September 30, 1800, an appeal being then pending to the council of prizes, by which tribunal the release of the vessel was ultimately decreed, the claim is not within the jurisdiction of this court. The owners’ remedy was under the subsequent treaty with France of 1803.

II. Where neither the master nor the owners of a vessel illegally seized appear to have made any claim after the final decree of restitution, or to have made any protest before the American consul in France, or after the return of the master to America, and where no complaint of any kind appears of record subsequent to the decree of restitution, the facts are sufficient to satisfy the court that France did not violate the treaty of 1800.

*220III. Where it appears that a French tribunal condemned the captors to pay damages, and replace the cargo on board the captured vessel, and pay for losses and diminution of cargo, and that the captors did not appeal, there arises the violent presumption that the captors made restitution in compliance with the final decree.

IV. Where it appears by a letter from the master of an American captured vessel to the United States consul-general that he had had a lawsuit with the owners of the privateer about maintaining his people, and had gained his case, a subsequent decree, releasing the vessel without damages, involves the conclusion that it was operative for everything else, and was executed.

V.The obligation of proving every necessary fact rests upon the claimants in French spoliation cases, and peculiarly so where there are adverse presumptions arising out of established facts.

VI.It can not be assumed that after the signature of the treaty of 1800, the French Government would have allowed an American vessel to depart contrary to the decree of the highest French court, without the consent of the master, and upon restitution satisfactory to the owners.

VII.It is to be presumed that public officers have properly performed their duties. Prosecutors in such cases are required to prove the negative.

VIII.Presumptions arise from motives of public policy. Conclusive presumptions are always made in favor of judicial proceedings. The cases relating to such presumption reviewed.

IX.Where in a French spoliation case a decree of restitution by the highest French court appears, which was apparently executed, the case comes within the principle that a judgment in rem is an act of the sovereign power, and as such that its effects can not be disputed.

*The*Reporters’ statement of the case:

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

I. The ship *Poll*Gary, John Bessom, master, sailed on a commercial voyage February 10, 1799, from Norfolk, Va., bound for London, England. While peacefully pursuing said voyage, on March 16, 1799, she was seized on the high seas not far from the Isle of Wight by the French privateer *UEereux Speculator*(“ The Happy Speculator ”), Captain *221Reneaudeau, and taken into the port of Grandville, France. The tribunal of commerce of that place pronounced the release of the vessel and cargo on prize proceedings between the master, representing the owners of said vessel and cargo and the widow, Le Carpentier and son, representing themselves as well as Mosqueron & Co. and Captain Reneaudeau, shortly after April 10, 1799.

The tribunal of commerce at Grandville stated that—

“Article 6 of the treaty of amity (treaty of 1778) and commerce imposed upon Captain Reneaudeau the duty of protecting and defending in need Capt. John Bessom. Instead of protecting and defending him, he, in contempt of the treaties and of the laws, took possession of his person, of his ship, of his cargo, and of his crew. He has caused the ship *Poll Gary*to enter into the port of Grandville, where, either on account of the locality or of mismanagement, that ship has notoriously suffered much. Perhaps she will be found not in a condition to be capable of being suitably repaired. Her cargo has necessarily suffered; it is now being discharged, doubtless because a still greater damage is feared since the said article 18 of the law of the 3 Bruma ire (October 24) does not permit proceedings to be taken for the discharge and storage of the cargo, except within the twenty-four hours of the definitive judgment- which shall have pronounced confiscation. By lack of skill or want of attention the hogsheads of tobacco are found torn open, Capt. John Bessom is warned that certain depreciations are being made in.the place of storage.”

The court further ordered that everything taken out of the *Poll Gary*should be replaced; that 15 guineas a day for the delay, if there was extreme delay, should be paid to the master of this vessel; that Captain Reneaudeau, Citizen Widow Le Carpentier and son, and Citizen Mosqueron & Co. are condemned to release this vessel and her cargo, to replace the cargo on board the *Poll Gary*in the state it was in when this vessel was arrested, and that the above offending parties are condemned to pay 600 francs damages and interest from the day after February 10, 1799, to the time the *Poll Gary*w'as taken to the passage where she was arrested; that damages to John Bessom resulting from the losses and diminutions of his cargo, and of its value, arising from whatever causes which by reason of the depredations which his ship *222may have suffered in the port, even to the extent of the detailed losses of said ship at the value of her country, according to the. report of consuls in residence in France be awarded; if the said ship found herself not in condition to be capable of being conveniently repaired, to condemn the citizen Reneaudeau, the citizen widow Le Carpentier and son, and the citizens Mosqueron & Co., to the costs, all of which shall be executed jointly against them and against their persons.

II. On appeal by defendants, Le Carpentier and others, on the 13 Fructidor, year 7 (August 30,- 1799), the civil tribunal of the department of the channel reversed the decree of the tribunal of commerce and condemned the vessel and cargo as lawful prize to the captors. Upon appeal, the council of prizes, on the 9th Frimaire, year 8 (November 29, 1800), released said vessel and cargo without damages.

III. The vessel had on board her register, passport, role d’equipage, invoice showing that all the cargo belonged to American citizens, and manifest of the cargo, none of which was contraband.

IV. The Poll *Gory*was a duly registered vessel of the United States, belonging to the port of Norfolk, Va., built at Flalifax, N. C., in 1797, and owned by William Pennock, a citizen of the United States residing at Norfolk, Va.

V. The council of prizes was the supreme admiralty court of France after March 27,1800, to October 25, 1801.

VI. April 10, 1799, and while the prize proceedings were pending in the tribunal of commerce at Granclville, John Bessom, master of the *Poll*Gary, wrote to Fulwar Skipwith, United States consul-general at Paris, that he had had a lawsuit with the owners of the privateer about maintaining his people and that he had gained his case and the privateer had been obliged to maintain “ us ” at .their expense. ,

VII. December 24,1799, the captain asked that the captors be required to deposit the proceeds of the sales or to give security therefor.

Subsequent to said release by the council of prizes, by bill of sale dated 17th Nivose, year 9 (January 6, 1801), the widow Le Carpentier and son, Daguet, captain of ship, and Louis Reneaudeau, captain of ship (describing themselves *223therein as coowners of said vessel under a deed dated 15 Brumaire, year 8 — November 5, 1799 — and registered 1 Fri-maire, year 8 — November 21, 1799), conveyed to one Harry Grant, said vessel then lying at her moorings at'the port and harbor of Grandville, together-with all her appurtenances, and on the 3d Floreal, year 9 (April 23, 1801), said Harry Grant conveyed said vessel then lying at said port and harbor, with her appurtenances, to one John Mitchell, acting on behalf of William Patterson, of Baltimore. On the 16th Prairial, year 9 (June 5, 1801), said vessel, at said port of Grandville, then being commanded by J. Southworth, was laden with a cargo consigned to merchants in London, England, and shortly thereafter departed said port, upon which voyage she was taken by British war vessels and carried into Plymouth, England, where she was libeled for salvage.

The case was pending at the time of the convention between the French Republic and the United States, concluded on September 30, 1800, at which time, and until January 6, 1801, said vessel was in the possession of her captors, or some of them, and until June 5, 1801, was within the jurisdiction of her captors’ sovereign, during which period she was released by the council of prizes.

VIII. No protest was ever made by the master of the *Poll Cary*charging unlawful conduct on the part of the captors, nor is it shown, pursuant to the decree of release, that he did not recover full remuneration from the pfivateers or the French Government after the decree of release by the council of prizes.

It reasonably appears that the vessel and cargo Avere repossessed by the American owners under the decrees in their favor for damages and the release of the vessel, and that the owners sustained no losses under the seizures.

*Mr. George A. King*and *Mr. W. T. S. Curtis*for claimants. *Messrs. George A. King & W. B. King*and *Curtis <& Pickett*were on briefs.

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

*224Howry, J.,

delivered the opinion of the court.

The petition alleges liability for claims under the act of January 20, 1885, 23 Stat., 283. Though the demands are of remote international origin, allowance follows from the court’s action in the nature of an award if the claims are of the class relinquished by treaty to France and assumed to be paid by the United States.

The findings show seizure of the *Poll Gary*on the high seas by the French privateer and prize proceedings at the port of Grandville in France, whence the vessel was taken after her capture. The trial resulted in a decree for the release of the ship, from which decree an appeal was taken by the captors to the civil tribunal of the Department of the Channel, which reversed the decree of the court of first instance and condemned the vessel and cargo as lawful prize. Thereupon the master for the owners of the vessel appealed to the council of prizes (which was the high court of admiralty at that time for France), and upon this appeal a decree was entered for the release of the vessel and cargo without damages. But pending the prize proceedings in the tribunal of commerce at Grandville, the master for his owners had brought another suit against the captors for damages and obtained judgment which obliged the privateersmen to maintain at their expense the people on the American vessel, the master stating that he had gained his case.

Subsequent to the decree of the civil tribunal of the Department of the Channel the master complained to the American consul that he was without security from the privateer, and this complaint was laid before the French minister of exterior relations, who transmitted the complaint to his Government. The transaction seems to have closed at this point, as there is no record of any further controversy over the matter of settlement or the giving of security for reimbursement by the privateer. But the *Poll Gary*remained in the harbor at the port where two prize courts had decreed its release, and the vessel was there when the treaty of September 30, 1800, was signed. It remained there until June 5,1801. But it seems that though the vessel was lying at her moorings at the port and harbor of Granville, on *225January 6,1801, the *Poll Gary*was sold by the owners of the privateer, who described themselves as coowners of said ship under a conveyance dated November 5, 1799, to one TIarry Grant. While the vessel was still lying in the harbor at her moorings, on April 23, 1801, Grant conveyed the vessel to one John Mitchell, acting on behalf of William Patterson, of Baltimore. On June 5, 1801, the said vessel (still being at the port of Grandville) was laden with a cargo consigned to merchants in London, England, and shortly thereafter departed the port, and upon this voyage she was taken by British war vessels and carried into Plymouth, England, where she was libeled for salvage.

If the court could reach the conclusion that this were a claim for a certain and positive loss, the demand would appear not to be a second-article claim under the treaty of September 30, 1800, between France and the United States, and consequently the owner’s only remedy was under the treaty of 1803. The decree existing on September 30, 1800, directing the release of the vessel and the payment of all damages carries the conclusion that the demand was never a second-article claim. For claims of this character France acknowledged a liability and promised redress, and a remedy was provided by the treaty of 1808.

The attempt to differentiate the case from *The Tom*(29 C. Cls. R., 71) will not help the petitioners in the matter of jurisdiction under the decision in the case of *The Apollo*(35 C. Cls. R., 419).

But in order to show the complete want of merit in the demand the court, while under no necessity to go further, will now take up that phase of the case depending upon the proofs.

The liability of France — which, whatever it was, became the liability of the United States by the terms of the treaty — is not proven. There are many circumstances arising out of the proof that the captured vessel with its cargo was either restored or a money equivalent paid after the court decreed restoration.

The public records of the two Governments show many payments for captured and lost vessels by the convention of 1803 between France and the United States. (State Depart*226ment Report of Payments of Awards, 8 to 21, inclusive'.) No claim was presented to that convention for the loss of the property involved in this case.

Neither master nor the owners made claim of liability at the time of the occurrences after the decree of release; demanded no restitution of the captured property, which they had a right to do under the treaty if they were not already in possession; and the history attending the whole affair reasonably satisfies us that France did not violate the treaty of 1800.

There is no evidence of any protest subsequent to the final decree releasing the vessel before the American consul, and no evidence of any protest when the master returned to the United States; no charge of unlawful conduct on the part of the captors, and no complaint of any kind of record anywhere subsequent to the final decree.

When the tribunal of commerce at Grandville condemned the privateer to pay for the delay of the vessel and to replace her cargo on board and to pay. a.11 damages not only for the depredations as well as for the losses and diminution of the cargo, the capturing privateer did not appeal from this decision so that they could, continue to operate under priva-teering license. From this circumstance alone there arises the violent presumption that the captors were not only obliged by the terms of the final decree to make restitution, but that they actually did so.

The master of the *Poll Gary*collected damages, as shown by his admission. The final decree of release did not include anything for damages. The reason is obvious — the master had already collected whatsoever he was entitled to on this account.

Not only did the decree releasing the vessel operate to give whatsoever t]ie master was entitled to have for his owners, but carries the conclusion that as the master had sued to compel the privateer to maintain the crew and had succeeded in this litigation, the decree was operative for evfirything else and was executed.

The obligation of proving every necessary fact rests upon the petitioners, and that is peculiarly so in this case because *227of the presumptions arising out of the established facts. It can not be presumed that when the treaty between France and the United States was signed and the Government of the foreign country had actual control of the vessel for months after the execution of that treaty, that the vessel was permitted to depart without the consent of the master upon such restitution as satisfied him and his owners. All the proof in the case shows that the vessel did not depart the port until the year after the treaty had taken effect. We think it is now too late for a court of this Government to assume that France made her treaty and immediately refused to carry out its terms when the means were at hand to enable her to do so.

From the proof the presumption can not arise that France violated its duty in that behalf; and if such a charge could be considered it would.be in the nature of a negative allegation of international neglect and the onus would still be with the claimants.

In cases of neglect of official duty the presumption attaches that public officers have properly performed their functions. Prosecutors in such cases are required to prove the negative. Thus in an information against Lord Halifax for refusing to deliver up the rolls of the auditor of the exchequer, in violation of his duty, the public prosecutor was required to prove the negative. (1 Greenl. Ev., sec. 80.) The rules of presumptive evidence are applied with a larger freedom in courts of admiralty than in equity or at common law. (3 Greenl., sec. 406.)

Presumptions arise from motives of public policy and for the sake of greater certainty. Conclusive presumptions are always made in favor of judicial proceedings and are applied under that rule of law which attaches itself to the circumstances when proved. Then it becomes a rule of protection.

Such presumptions have been frequently applied in the disposition of cases under the present act of our jurisdiction either to establish liability or the want of it because of the impossibility of obtaining direct evidence on demands so ancient. Contemporaneous with the present case is that of the *Happy Couple,*No. 294, where the decree of the French *228prize court recited a statement made at sea by the captain of an American vessel, in which he testified that he delivered four documents and his clearances, which included a sea letter and a notarial instrument serving as a register of his ship. The issue was the existence of the necessary register showing nationality. From the recitals of the French decree the court applied the presumption that the requisite of the American character of the vessel had been made out.

It was long ago settled in the English courts that judgment in an action, in which C recovered damages against A, is conclusive proof as against B, that C did recover damages against A in that action. *(Green*v. *New River*Co., 4 T. R., 590.) Presumptions arise also in favor of the due execution of solemn instruments because the law in such cases will supply the defect of proof by presuming that the requisites of the statute were duly observed. The principle has been applied where the subscribing witnesses to a will are dead, or if living and being present, they are forgetful of any fact material to due execution. And likewise, negligence of a defendant will not be inferred from the mere fact that the injury occurred or from presumption of care on part of the plaintiff. There is equal presumption of care that defendant performed his duty, and the latter must be overcome by direct evidence. *(Looney*v. *Metropolitan R. R. Co.,*200 U. S., 480.)

Practically the general proposition stated here has been applied decisively in a French spoliation case. Where an appeal appears to have been taken, but the result does not appear, the burden of proof remains with the claimants to establish the extent of their loss. *(The*Dolphin, 27 C. Cls. R., 276.)

Definitive condemnation not being established by the facts, but a decree of release (which was apparently executed) appearing, the court can not for these reasons report a loss.

The case comes directly within the principle cited with approval by the Supreme Court in *Tilt*v. *Kelsey*(207 U. S., 52), where it was said, “A judgment in rem is an act of the sovereign power, and as such its effects can not be disputed, at least within the jurisdiction. If a competent court declares *229a vessel forfeited * * * a paramount title is passed * * * because tlie Sovereign has said that it shall be so.”

The findings and conclusions of law will be certified to Congress, together with a copy of this opinion.