#### THE BRIG “HOPE.” MARY W. MOODY, ADMINISTRATRIX, v. THE UNITED STATES.

[French Spoliations, 2335.

Decided February 13, 1911.]

*On the Proofs.*

It appears that the vessel was owned by two citizens in equal parts, who held separate and distinct interests in the vessel and who were not partners. The suit is brought by the adminis-tratrix of one. There is no appearance on behalf of the other.

I.Where the value of a cargo is not shown there can be no recovery though it appears that there was a cargo on the vessel and that it was illegally caiitured and condemned.

II.Where it is recited in the decree of condemnation that there was a cargo on board, and it further appears that there was an inventory “ *made beforehand m the presence of those concerned,”*freight earnings will be allowed.

III.In allowing freight earnings where there is no proof of the value of the cargo the court adheres to the rule that where actual freight can not be ascertained and computed two-thirds of the amount of full freight will be allowed under the general commercial rule.

*The Reporters’*statement of the case:

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

I. The brig *Hope,*whereof John Gould was then master, sailed on a commercial voyage some time in the year 1800 from Kennebunk, in the then State of Massachusetts, bound for the West Indies. Said vessel was captured on the high seas 8th floreal, year 8 (April 27, 1800), by the French privateer *La*Medée, Capt. Lagau; thereafter on the 18th floreal, year 8 (May 7, 1800), said vessel and cargo were condemned by the tribunal of commerce and prizes sitting at Basseterre, in the island of Guadaloupe, on the following grounds:

That the affidavit at the bottom of the captain’s sea letter was not signed by naval officers.

That said vessel carried no role d’equipage, as was admitted by the captain.

*212II. The brig *Hope*was a duly registered vessel of the United States of 115|| tons burtlien, built in Kennebunk in the year 1794, and owned solely by Daniel Wise and Oliver Keating, citizens of the United States residing in said Kennebunk, in equal parts.

III. There was a cargo on board the vessel at the time of capture, but the quantity, quality, and ownership thereof is not shown.

TV". The loss to the owners by reason of said capture and condemnation was as follows:

Value of vessel_$3,450.00

Freight earnings_ 1,917.00

Total_ 5, 367. 00

Loss to Daniel Wise, one-half- 2,683. 50

The claimant has produced letters of administration on the estate of the party for whom she appears and has otherwise proved to the satisfaction of the court that the person for whose estate she has filed claim is in fact the same person who suffered loss by reason of the seizure and condemnation of the brig *Hope,*as set forth in the preceding findings.

Said claim was not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803. It was not a claim 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 was 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.

The claimant, in her representative capacity, is the owner of said claim, which has never been assigned except as aforesaid.

*Mr. Edwin B. Smith*for the claimant.

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

*213Howry, *Judge,*

delivered the opinion of the court:

This is a claim under the act of January 20, 1885, 23 Stats., 283, for the value of a vessel and for freight earnings on account of a cargo alleged to have been on board.

It is alleged in the petition that the brig was owned by a firm composed of Daniel Wise and Oliver Keating, of whom Wise was the surviving partner. Wise died in 1843 and the case is now being prosecuted by his granddaughter.

The findings show that the brig sailed on a commercial voyage in the year 1800 from Kennebunk, in the then State of Massachusetts, bound for the West Indies, and that the vessel was captured on the high seas and condemned, together with her cargo, by the tribunal of commerce and prizes sitting at Basseterre, in the island of Guadeloupe. The findings also show ownership of the vessel by Daniel Wise and Oliver Keating, citizens of the United States, in equal parts, but do not disclose that they were partners. On the contrary, it is disclosed and so found that these two persons held separate and distinct interests in the vessel and whatever cargo there was. There being no evidence to show that the vessel was owned by the parties in any but their individual capacities, there can be no allowance for the Keating interest, as the claim for him is not in court.

The principal contention for the defendants is against any allowance for freight earnings, because it is urged that there is no evidence before the court of the kind and value of the cargo. It is further contended by the defendants that the only mention of the character of the cargo is contained in an affidavit made by the former master long subsequent to the capture which, under the rulings of the court, is incompetent to be considered as evidence. *The*Parkman, 35 C. Cls., 406; *The*Juno, 36 ib., 239; *The*Maria, 39 ib., 39.

Eliminating any claim for the value of a cargo because no value is proven and therefore void for uncertainty (as the court can not conjecture value), there is yet left in the case the question of an allowance for freight earnings.

It is recited in the decree that the brig, her tackle, appurtenances, *and cargo*were good prize, and in condemning the vessel it was ordered that all the property be sold for the benefit of the captors, owners, and interested parties. It *214further appears that at the time the decree was rendered an inventory of everything had been made “ beforehand in the presence of those concerned.”

As the bulk was on board ship — that is, a cargo of some kind was on board — freight earnings appear made out unless the decree be disproved. Under these circumstances freight earnings are allowable because of the definiteness of the decree that there was a cargo being carried. Estimating freight on the proven tonnage of the vessel the amount aggregates on a two-thirds basis for the round trip the amount shown in the findings.

In thus allowing freight earnings the court adheres to the rule that where actual freight can not be ascertained and consequently not computed for want of ascertainment, a two-thirds amount of full freight is allowable under the commercial rule adverted to and adopted in *Hooper’s*case, 22 C. Cls., 408.

The total value of the vessel as disclosed by the findings is $8,450; and the freight earnings amount to $1,917 on the whole venture. The loss to the only party before the court is one-half of that amount. Eliminating the alleged Keat-ing interest, the loss to Daniel Wise is $2,683.50.

The findings of the court will be reported to Congress, together with a copy of this opinion.