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The Amiable Isabella, 19 U.S. 1 (1821)

The Amiable Isabella

19 U.S. 1


Whether the capture is made by a duly commissioned captor or not is a question between the government and the captor with which the claimant has nothing to do. If the capture be made by a noncommissioned captor, the government may contest the right of the captor after a decree of condemnation and before a distribution of the prize proceeds, and the condemnation must be to the government.

The seventeenth article of the Spanish treaty of 1795, so far as it purports to give any effect to passports, is imperfect and inoperative in consequence of the omission to annex the form of passport to the treaty.

Quaere whether, if the form had been annexed and the passport were obtained by fraud and upon false suggestions, it would have the conclusive effect attributed to it by the treaty?

Quaere whether sailing under enemy's convoy be a substantive cause of condemnation?

By the Spanish treaty of 1795, free hips make free goods, but the form of the passport, by which the freedom of the ship was to have been conclusively established, never having been duly annexed to the treaty, the proprietary interest of the ship is to be proved according to the ordinary rules of the prize court, and if thus shown to be Spanish, will protect the cargo on board, to whomsoever the latter may belong.

By the rules of the prize court, the onus probandi of a neutral interest rests on the claimant.

The evidence to acquit or condemn must come in the first instance from the ship's papers and the examination of the captured persons.

Where these are not satisfactory, further proof may be admitted if the claimant has not forfeited his right to it by a breach of good faith. On the production of further proof, if the neutrality of the property is not established beyond reasonable doubt, condemnation follows.

The assertion of a false claim in whole or in part by an agent or in connivance with the real owner is a substantive cause of condemnation.

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This was the case of a ship and cargo sailing under Spanish colors and captured by the privateer Roger, Quarles, master, on an ostensible voyage

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from Havana to Hamburg, but really destined for London or with an alternative destination and orders to touch in England for information as to markets and further instructions. The ship sailed from the Havana on 24 November, 1814, under

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convoy of the British frigate Ister, with which she parted company on 1 December, the frigate having gone in chase of an American privateer, and on 3 December was captured by the privateer Roger and carried into Wilmington, North Carolina, for adjudication. The ship and cargo were condemned as prize of war in the District Court of North Carolina, and the sentence was, after the admission of further proof in the circuit court, affirmed by that court. An appeal was then allowed to this Court, with permission to introduce new proof here if this Court should choose to receive it.

The original evidence consisted of the papers found on board the captured vessel and delivered up to the captors by the master at the time of the capture, and of certain other documents afterwards found concealed on board or in the possession of Rahlives, the supercargo, or of one Masuco, alias Burr, a passenger on board the Isabella. Some of the ship's papers were mutilated and attempted to be destroyed, and others were thrown overboard and spoliated.

The paper of which the following is a translation, was the only one delivered up by the master at the time of the capture:

"Don Jose Sedano, Administrator General of the Royal Revenues of this port of Havana in the Island of Cuba &c., certify that by authority and knowledge of the General Administrator of the Revenues under my charge, permission has been given to ship in the Spanish ship called the Isabel, Captain Don Francisco Cacho, with destination for Hamburg, viz.,: "

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"Don Alonzo Benigno Munos, registered on the day of this date, six hundred and seventy-six boxes brown sugar, two hundred and twenty-eight boxes white ditto, and two hundred quintals dyewood, which he has shipped on his own account and risk, consigned to Don Juan Carlos Rahlives, and paid 6,290, and that it may so appear, I sign the present."


"Dated Havana, 10 Nov., 1814"

Among the papers found on board, and brought into the Registry, with an explanation of the circumstances under which they were discovered, were

1. A passport or license granted by the governor and Captain General of the Island of Cuba, of which the following is a translation:

"Number 94. PROVINCE OF THE HAVANA. Don Juan Ruiz de Apodaca y Eliza, President, Governor, Captain General of the place of Havana and Island of Cuba, Commandant General of the Naval Forces of the Apostedero, &c."

"For want of royal passports, I dispatch this document in favor of Captain Don Francisco Cacho, inhabitant of the City of Havana, that with his Spanish

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merchant ship called Amable Isabel, of the burden of 208 1/2 tons, he may sail from this port, with cargo and register of free trade, and proceed to that of Hamburg, there to trade and return to his port of departure, with the express condition of performing his voyage outward and inward, directly to the fixed places of his destination, without deviating or touching at any port, national or foreign, in the islands or continent of the Indies unless compelled by inevitable accident. APODACA. Gratis. Sebastian de la Cadena. "

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2. A clearance granted by Don Pedro Acevido, Captain of the Port of Havana, permitting the said Cacho "to proceed with the Spanish ship La Amable Isabel from this port to England," with a muster roll of the officers and crew annexed.

3. A letter of instructions from Munos, the claimant, to Cacho, of which the following is a translation:

"Havana, 10 Nov., 1814. Don Francisco Cacho. SIR: Entrusted as you are with my ship La Amable Isabel, which sails bound for Hamburg or some other port of that continent or for those of England, I hope that you will perform your duty with the exactness you have always used, and which was my motive for making choice of you. Consequently I will omit all further advice, particularly as there goes in the vessel the supercargo, Don Juan Rahlives, with my full power and instructions. You will observe all his directions as if they were dictated by myself. Wishing you a prosperous voyage, &c. MUNOS."

4. Articles of agreement between Munos and the master and crew of the ship.

5. A general procuration from Munos to one Von Harten of London, dated at Havana, May 29, 1812, with a substitution by the latter to Rahlives the supercargo, executed at London.

6. A letter from one Tieson, dated London, November 4, 1813, to his brother F. Tieson at Rio Janiero, introducing Rahlives

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as the conductor of certain commercial operations which he had concerted with several friends, referring his correspondent to Rahlives himself for the details.

7. A letter from one Rhodes, dated London, to Messrs. Glover & Co. at Rio Janeiro, introducing Rahlives, who the writer states "goes as supercargo in the ship Isis and acts for Mr. John Goble of Havana and Mr. Von Harten of London," &c.

8. A letter from Hawkes & Malloret, dated Liverpool, October 28, 1803, to Brown & Co. at Rio Janiero, introducing Rahlives as

"particularly connected with our intimate and respectable friend Mr. George Von Harten of London, and John Gobel of Havanna, on whose behalf he will probably visit you very shortly. It is probable Mr. Rahlives may entrust to your management some transactions for account of said friends and others, and we beg to assure you we feel convinced every satisfaction will result from such business as he may have to conduct."

9. The following circular:

"Havana, 1 May, 1812. On 15 May, we took the liberty of addressing our friends from London, requesting their countenance to an establishment we intended to form in this city under the firm of Von Harten, Gobel & Co. We now have the satisfaction to inform you of our complete success in organizing and consolidating the same, and that we are in every respect enabled to procure to our correspondents all those advantages which may result from intelligence, activity, and the most respectable connections in this island. Political considerations, however, induce us to carry on our affairs for the future under the sole

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name and firm of Mr. John Gobel, who is permanently to reside in this country,"


10. An account of sales, dated Havana, November 16, 1814, signed by J. Gobel, of the cargo of the English brig Portsea, received from Rio de Janeiro on account of Messrs. Brown, Weston & Co. and of Rahlives, amounting to $20,313 net proceeds, leaving to the credit of Rahlives, in Gobel's hands, half of that sum.

11. A charter party executed at Rio de Janeiro, May 11, 1814, between Weston and Gobel, letting to him the Portsea, and consigning the cargo to the charterer.

12. The following letter from Munos to Rahlives:

"Havana, 10 Nov., 1814. Sir, I enclose you invoice and bill of lading showing to have shipped in my ship called La Amable Isabel, Capt. Don Francisco Cacho, 1,104 boxes of sugar, and 40 half boxes of ditto, and 200 quintals of dye-wood, the principal amount of which and charges amounts to $60,642.03, which cargo consigned to you, you will please to take charge of on your arrival at Hamburg, or at any other port you may find convenient to go, proceeding to sell it on the most advantageous terms you can obtain, that with the proceeds you may make the returns according to the instructions I have verbally communicated to you. In like manner I recommend to you and place under your care my said vessel in order that the adventure may have the most favorable termination, to which end I have given definitive orders to the Captain, Don Francisco Cacho, that he may observe the instructions you may communicate to him in my name. As I am so well satisfied with

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your care and diligence, and the friendship my house entertains for you, I shall omit any further advice, wishing you a prosperous voyage and that you may duly advise me of your proceedings and communicate such instructions as you may think fit. Yours, &c."

13. A bill of lading signed by the master, Cacho, acknowledging the receipt of the cargo and engaging to deliver it to Rahlives at Hamburg or at the port where his register might be verified.

14. A manifest entitled "Manifest of the cargo of the Spanish ship La Amable Isabel in its voyage from this port of Havana to that of London," and signed by the master, being stated in the margin that he had signed bills of lading therefor "to Don Alonzo Benigno Munos, which he has registered on his own account and risk, and to the consignment of Horace Solly of London."

Among the mutilated papers found on board were (1) various accounts between Rahlives and F. Thieson. (2) An invoice of jerked beef and tallow, shipped from Rio de Janeiro to Havana. (3) Another invoice of the same, "for account and risk of Mr. Alonzo Benigno Munos at Havana," per brig Isis, Capt. Brenmer, amounting to $22,371. (4) Invoice of sugars, &c., shipped on board the Isis at Havana by order of Rahlives, signed by Gobel, and amounting to $50,671. (5) Another invoice of the same, shipped on board the Isis, "for Falmouth and a market, to the orders of G. Van Harten, Esq. in London," signed by Rahlives, and various accounts between the different parties.

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A claim was given in for the ship and cargo, as the property of Don Alonzo Benigno Munos, by Rahlives, the supercargo, as agent for the alleged owner, and the captured persons were examined on the standing interrogatories.

Upon the order for further proof, the affidavits of the claimant and his clerks, to the proprietary interest of the ship and cargo in him were produced, and the proceedings before the tribunal of the Consulado at the Havana under which the ship, which had arrived at that port from New Providence, was sold under the bottomry bond alleged to be given for repairs by one John Cook to the claimant and was naturalized as a Spanish vessel. A great mass of testimony was also produced tending (among other things) to show that the claimant, who was father-in-law of Gobel, had not been actively engaged in trade for many years before this shipment was made, and that Gobel, not being a Spanish subject, all his foreign business, and his transactions with the custom house, had constantly been carried on in the name of Munos.

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