CASE OF THE LAFAYETTE.

Ship and cargo condemned. The cargo of this ship was condemned by me as enemy's property, notwithstanding there were depositions of the shippers that it had been purchased by them on neutral account. These ex-parte statements are precisely such as every unscrupulous merchant would prepare, to deceive his enemy and save his property from capture. There are two shipping houses in this case; that of Craig and Nicoll, and that of Montgomery Bros.: Messrs. Craig and Nicoll say that the grain supplied by them belongs to Messrs. Shaw and Finlay, and to Messrs. Hamilton, Megault, and Thompson, all of Belfast, to which port the ship is bound, but the grain is not consigned to them, and they could not demand possession of it under the bill of lading, it being consigned to order, thus leaving the control in the hands of the shippers. The shippers, farther, instead of sending their grain as freight in a general ship, consigned to the owners, they paying the freight, charter the whole ship, and stipulate themselves for the payment of the freight. If this property had been bonâ fide the property of the parties in Belfast named in the depositions, it would undoubtedly have been consigned to them, under a bill of lading authorizing them to demand possession of it, &c., &c.; the agreement with the ship would have been that the consignees and owners should pay the freight upon delivery. Even if this property were purchased, as pretended, by Messrs. Craig and Nicoll, for the parties named, still their not consigning it to them and delivering to them the proper bill of lading passing the possession, left the property under the dominion of Craig and Nicoll, and as such, liable to capture. The property attempted to be covered by the Messrs. Montgomery, is shipped by Montgomery Bros. of New York, and consigned to Montgomery Bros., in Belfast; and the title to the property, so far as appears in the bill of lading, is in the latter house, or in the branch house in New York. Further, the mere formal papers of a ship and cargo prove nothing, unless properly verified, and in this case the master of the ship, although a part owner of the ship, whose duty it was upon taking in a cargo in time of war, to be informed of all the circumstances attending it, and connected with the ownership, knew nothing, except what he learned from the face of the papers. These certificates, therefore, were pronounced a fraud, and the cargo as well as the ship, condemned. 3d Phillimore 610-12 to the effect, that if the goods are going for account of the shipper, or subject to his order or control (as in this case), the property is not divested in transitu. The goods shipped by Craig and Nicoll, were consigned to their order, as has been seen.

As to the Montgomery's, see 3rd Phillimore 605, to the effect that if a person be a partner in a house of trade in an enemy's country, he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confiscation as such, notwithstanding his own residence is in a neutral country. Further, the property consigned to Montgomery Bros., even admitting the Belfast house not to be a partner in the New York house, is liable to the same objection, as in the case of Craig and Nicoll; since, although the property is described as belonging to a party in Sligo, there is no bill of lading among the papers authorizing that party to demand the possession. The property is not divested, therefore, in transitu.

3rd Phillimore, 599, to the effect, that "further proof" is always necessary when the master cannot swear to the ownership of the property (as in this case). And as I cannot send my prizes in for adjudication, I must of necessity condemn in all cases where "further proof" is necessary, since the granting of "further proof" proceeds on the presumption that the neutrality of the cargo is not sufficiently established; and where the neutrality of the property does not fully appear from the ship's papers and the master's deposition, I had the right to act upon the presumption of enemy's property.

By midnight the Lafayette showed only a dim glare on the distant horizon, but the event formed a topic of discussion for the next two days, more especially as from the newspapers found on board it was ascertained that news of the captures on the banks of Newfoundland had already made its way to the United States, and that the Yankee cruisers were, therefore, probably by that time in full pursuit.

The 26th October, however, provided the crew of the Alabama with a fresh excitement. The weather had cleared beautifully, the wind was light from the eastward, and the vessel was gliding smoothly and swiftly, with studding-sails set alow and aloft, over the long, easy swell, which alone remained to tell of the heavy gales of the past fortnight. Every one was enjoying the change, and even the strict discipline of the man-of-war was, for the moment, in some measure relaxed, as officers and men gave themselves up to the full pleasure of a period of sunshine and tranquillity, after the long spell of gloom and storm. The look-out-man alone, high up on the fore topgallant crosstrees, still swept the horizon as eagerly as ever in search of a prize. At about noon his vigilance was rewarded by the sight of a sail on the port-quarter, and in a moment all was again bustle and excitement on board. Quick as the word could be given, the "flying kites" were furled, yards braced in, and the ship hauled up on a taut bowline in chase.

But the stranger was now well to windward, and fully four or five miles distant. The Alabama flew through the water with the freshening breeze, flinging the spray over her sharp bows, and stretching to her task as though she herself were conscious of the work before her, and eager in chase. But the strange sail was almost, if not quite, as fast as herself, and her position so far to windward gave her an immense advantage. The day, too, was wearing on, and the sky beginning to cloud over, giving every token of a dark if not a stormy night. If the chase could only hold on her course till dusk she was safe, and already the hopes of another prize were beginning to fade, and the anxious speculators on the forecastle were expecting the order to up helm and relinquish the chase.

On the quarter-deck, too, the idea was gaining ground that the affair was hopeless, and that it was not worth while to keep the ship longer from her course. But the Alabama was not given to letting a chance slip, and before finally abandoning the pursuit it was determined to try the effect of a shot or two upon the nerves of the stranger. A slight cheer, quickly checked by the voice of authority, rose from the eager crowd on the forecastle, as the weather bow gun was cast loose and loaded, and in another minute the bright flash, with its accompanying jet of white smoke, leaped from the cruiser's bow, as the loud report of a 32 pounder rang out the command to heave to.

A moment of breathless suspense, and another cheer rose from the delighted throng of sailors, as the stranger's sails were seen for a moment to shiver in the wind, and the frightened chase luffed to the wind, and then lay motionless with the Stars and Stripes at her mizenpeak. Another sharp hour's beating and the Alabama was alongside, and had taken possession of the United States schooner Crenshaw, from New York to Glasgow, three days out.

And now began another investigation into the character of the cargo, and notes were once more carefully compared, lest any bonâ fide neutral property should become involved in the fate that would otherwise befall the captured enemy. Finally, however, the case was decided against ship and cargo, and both were accordingly committed to the flames, the following entry being made by Captain Semmes of the grounds of his decision:—

CASE OF THE SCHOONER CRENSHAW.

This vessel was captured under the North American flag, and had on board a North American register—there is, therefore, no question as to the ship. There has been an attempt to cover the cargo, but without success. The shippers are Francis Macdonald and Co., of the city of New York; and Mr. James Hutchison, also of New York, deposed before the British consul, that "the goods specified in the annexed bills of lading were shipped on board the schooner Crenshaw, for, and on account of, subjects of Her Britannic Majesty, and that the said goods are wholly and bonâ fide the property of British subjects." No British subject is named in the deposition, and no person is therefore entitled to claim under it. Further: even admitting the goods to have been purchased on British account, the shipper has not divested himself of the possession by a proper consignment, under a proper bill of lading. The property is consigned to the order of the shipper, which leaves it entirely under his control; and it having left the port of New York as his property, the title cannot be changed while the property is in transitu.

As to the first point—to wit, the failure to point out some particular British owner of the property—see 3d Phillimore 596, to the following effect:—"If in the ship's papers, property, in a voyage from an enemy's port, be described 'for neutral account,' this is such a general mode as points to no designation whatever; and under such a description no person can say that the cargo belongs to him, or can entitle himself to the possession of it as his property," &c.

And as to the second point—to wit, the failure on the part of the shipper to divest himself of the title and control of the property by a proper bill of lading—see 3rd Phillimore 610-12, as follows, viz.: "In ordinary shipments of goods, unaffected by the foregoing principles, the question of proprietary interest often turns on minute circumstances and distinctions, the general principle being, that if they are going for account of the shipper, or subject to his order or control, the property is not divested in transitu" &c.

* * * * *

Monday, October 27th.—Another gale of wind! In the mid-watch last night the barometer commenced falling, and by 3 this afternoon it had gone down to 29.33, where it remained stationary for a time, and then began to rise slowly, being at 29.45 at 8 P.M. The wind began to blow freshly from the south, and hauled gradually to the westward, the barometer commencing to rise when the wind was about W.S.W. In the early part of the gale we had the weather very thick, with heavy squalls of rain, clearing about nightfall, with the wind from the W.S.W.

In the midst of a heavy squall of wind and rain, and with a heavy sea on, we discovered a brig close aboard of us, on our weather quarter; but as we were on opposite tacks we soon increased our distance from each other. Wore ship, and hove to, under close-reefed topsails on the starboard tack. Being about a degree to the southward of St. George's Bank, got a cast of the lead at 7 P.M., with no bottom at eighty-five fathoms. Lat. 39.47 N., Long. 68.06 W., a little over two hundred miles from New York.

Tuesday, October 28th.—Weather cloudy; wind light from the north, hauling to the eastward. The heavy sea, from the effects of the gale yesterday, continued all day rolling and tumbling us about, and keeping the deck flooded with water. In the morning watch descried a brig running off to the southward. She being some distance off, and running in the wrong direction, we did not chase. Soon afterwards another sail was reported to the westward, standing in our direction; shaped a course to head her off, and at 11 A.M., having approached her within half a mile, hoisted the English blue. The stranger showing United States colours, we hoisted our own, and hove him to with a gun. Brought the master on board with his papers, and finding the cargo condemnable, got the crew on board, fired the ship, and filled away.

The prize proved to be the barque Lauretta, of Boston, from New York, for Madeira and the Mediterranean. Received papers as late as the 24th. The intelligence of our captures (as late as the Brilliant) seems to have created great alarm for the safety of commerce in New York.

CASE OF THE LAURETTA.

This ship being under American colours, with an American (U.S.) register, no question arises as to the ship. There are two shippers of the cargo, Messrs. Chamberlain, Phelps, and Co., and Mr. H.J. Burden, both houses of New York city. Chamberlain, Phelps, and Co. ship 1424 barrels of flour, and a lot of pipe staves, to be delivered at Gibraltar or Messina, to their own order; and 225 kegs of nails to be delivered at Messina, to Mariano Castarelli. The bill of lading for the flour and staves has the following indorsement, sworn to before a notary: "State, city and county of New York: Louis Contenein being duly sworn, says, that he is a clerk with Chamberlain, Phelps, and Co., and that part of the maize in the within bill of lading, is the property of subjects of the King of Italy." This certificate is of no force or effect for its generality; it points to no one as the owner of the merchandise, and no person could claim it under the certificate. See 3rd Phillimore, 596. Farther: the property is consigned to the order of the shipper. The title, therefore, remains in him, and cannot be divested in transitu. See 3rd Phillimore, 610-12. The contingent destination of this property, too, shows that it was property for a market. It was to be delivered either at Gibraltar or Messina, as the shipper might determine—probably on advices by steamer, before the ship should reach her destination. She was to stop, as we have seen, at Madeira, which would give ample time for the decision.

The bill of lading for the 225 kegs of nails has a similar indorsement, except that it is asserted that the whole of the property belongs to subjects of the King of Italy. It is not sworn that the property belongs to Castarelli, the consignee, and for aught that appears, Castarelli is the agent of the shipper to receive this consignment on his, the shipper's account. The presumption being, that notwithstanding a consignment in due form by an enemy shipper to a neutral, the property is enemy's property, until the contrary be shown. The consignment alone does not show the property to be vested in Castarelli, and the certificate does not indicate him as the owner. Although Castarelli could demand possession of the goods, under this consignment, he could not claim to hold them as his property under the certificate. There is, therefore, no evidence to show that he is not the mere agent of the shipper. What renders this consideration still more clear is, that if the goods had really belonged to Castarelli, it would have been so stated in the certificate. Why say that the goods belonged to "subjects of the King of Italy," when the consignee was the real owner?

The property shipped by H. Jas. Burden consists of 998 barrels of flour and 290 boxes of herrings, and is consigned to Charles B. Blandly, Esq., at Funchal, Madeira. The shipper, H.J. Burden, makes the following affidavit before the British consul in New York, to wit: "That all and singular the goods specified in the annexed bill of lading, were shipped by H.J. Burden, in the barque Lauretta, for and on account of H.J. Burden, subject of Her Britannic Majesty." Now, Burden may be a very good subject of Her Britannic Majesty, but he describes himself as of 42 Beaver Street, New York, and seems to lose sight of the fact, that his domicile, for the purposes of trade, in the enemy's country, makes him an enemy, quoad all his transactions in that country. Further: if the H.J. Burden, the shipper, is not one and the same person with the H.J. Burden for whom the property is claimed, then there is nothing in the papers to show that property is vested in the latter, since it is not consigned to him, nor is it shown that the consignee, Charles B. Blandly, Esq., is his agent. The presumption, in the absence of proof, is, that the consignee is the agent of the shipper.

* * * * *

Wednesday, October 29th.—* * * * At 10 A.M. hove to; let down the propeller, and put the ship under steam. Chased and overhauled a Dutch barque, and towards nightfall came up with the United States brigantine, Baron de Custine, from Bangor, with lumber for Cardenas. The vessel being old, and of little value, I released her on ransom bond, and converted her into a cartel, sending some forty-five prisoners on board of her, the crews of the last three ships burned.