The Sophia Elizabeth. 1 Acton. to prevent a direct communication with Bremen by ships from sea, and the touching of these small vessels on the parts of the coast occupied by the French. "These consequences," he continues, "they say could not happen; and that representation is material, I think, in fixing the interpretation of that admonition against abusing this relaxation, contained in the answer of the British government. The thing," he observes, "is asked in terms pointing to this kind of trade, and the answer appears to grant the permission in the terms of the petition. The claimants were, therefore, justifiable in the particular trade which they have been carrying on, and are, therefore entitled to restitution." 1 Should it be objected, that the relaxation by Lord Harrowby only provided that the trade of Bremen should be carried on by lighters navigating exclusively between the river Weser and Jahde, and not between the river Weser and Tonningen, it may be sufficient to direct your lordships' attention to a similar indulgence granted to small craft and lighters to coast along the Watten, between Hamburg and Tonningen in the following year, by an order of council. This order, in conjunction with the known spirit of liberality which actuates his Majesty's councils, relative to these neutral cities, no doubt encouraged these merchants to hope that the communication between the port of Bremen and Tonningen was intended to be included within this relaxation. And even were it to be your lordships' opinion that this permission is not contained in [ 55] the relaxation, as it relates to the passage * of the Watten generally, yet the case of the claimants cannot be materially affected by this circumstance, inasmuch as the permission to large vessels to proceed from the Weser in ballast, and to lighters to carry on the trade of Bremen over the Watten, amounts to a justification of the trade in which the vessel was engaged, since no restriction whatever was expressed or understood to be imposed by the blockaders on such large and small vessels, once they had passed the mouth of the blockaded river, except that restriction which had in the former order been imposed respecting the touching of lighters on those parts of the coast forcibly occupied by the enemy's troops. Hence, we are inclined to hope your lordships will permit the production of further proof as to such parts of the cargo as appears not sufficiently ascertained, and order restitution of the remainder. JUDGMENT. SIR W. GRANT. There can be no doubt, that either referring this 1 Robinson's Reports, vol. 6. The Sophia Elizabeth. 1 Acton. voyage solely to the order of the 16th of April, or to that of the 16th of May, it would have been illegal. It remains to see, therefore, how far these orders are affected by the relaxation granted by Mr. Thornton's letter to the commander off the station. And here it is necessary to observe, that taking the former relaxation, during Lord Harrowby's secretaryship, as the measure of the general extent and principle of the present, it appears doubtful whether this particular communication between Bremen and Tonningen can be considered as included within the principle of relief extended by government, in permitting the free passage between Hamburg and Tonningen in 1805, and between Bremen and Varel in *1804. [ *56 ] The different orders must be taken as applying specific relief to particular grievances experienced by the cities of Bremen and Hamburg. Mr. Thornton's letter, however, is decisive, and includes the free passage of four rivers, the Eyder, Elbe, Weser, and Jadhe, by lighters and small vessels. The blockade of the 16th of April had cut off all the trade of that river, except under the protection of the Danish flag, or proceeding to or coming from ports of the United Kingdom; this, therefore, required relaxation, and Mr. Fox's letter must have intended to effect that measure of relief, and pointed to some order then in contemplation; but which, perhaps, had not afterwards been deemed necessary. The order of the 16th of May followed, which appears to have made considerable provision for the protection of neutral trade, though announcing a more extensive blockade from the Elbe to Brest inclusive. By this, neutral ships with neutral cargoes, not including contraband of war, were permitted to carry on this trade in these ports, provided such vessels were not laden in, or destined to an enemy's port. Hence, it would be absurd to imagine that it was intended to let the smaller vessels out with cargoes destined for those interdicted ports. We are of opinion, that the export, therefore, to all the enemy's countries was absolutely interdicted by the express letter of the order of the 16th of May, announcing the general blockade. We, therefore, decree that the sentence of the court below be affirmed. Upon the same principle, THE CHARLOTTA SOPHIA, Moller, master, and KLEIN JURGEN, Prott, master, both sailing in ballast from the Weser to Tonningen, and there taking in cargoes [57] which had accompanied them over the Watten, which were afterwards taken in the prosecution their voyage under charter-party to Algesiras, were condemned as prize to the captors, and the sen The Nancy. 1 Acton. tences of the judge of the High Court of Admiralty, from whence these appeals had been interposed, confirmed. THE NANCY, Hurd, master. July 6, 1809. Blockade of Martinique. The vessel contended to have committed a breach of the blockade, restored; the blockade squadron having gone on an expedition to Surinam, and left no adequate force behind to maintain the blockade. THIS was a leading case of several appeals from Vice-Admiralty Courts in America and the West Indies, condemning the ships and cargoes for a breach of the blockade of the island of Martinique, in the year 1804. The attestation of the master, who was the claimant of the vessel for himself and other American citizens, and of the cargo as the property of John Juhel, also of New York, in America, proved that he had, under charter-party, agreed to sail with a cargo from New York to the port of St. Pierre's, in Martinique, unless the same should be blockaded, and to bring from thence a return cargo of the produce of the island, for the sole account and risk of Juhel and other American citizens. That in case the island should be blockaded he had agreed. to proceed to St. Thomas's, from whence he had orders to procure a return cargo from the proceeds of the outward. In pursuance of this agreement he arrived off Martinique on the 29th of March, [*58] and finding no ships of war there, and not being given to understand that there existed any blockade at that time, he, in consequence of the vessel's having sprung a leak, repaired to the port of Trinity in that island to refit, from whence he set sail, and arrived at that of St. Pierre's on the third of April. That while in the island he was informed the blockade had been removed, and the squadron had gone on an expedition to Trinidad. No vessel of war, whatever, had appeared off the island during his stay; nor was there any notice given of a blockade then existing. Having completed his cargo on the 15th, he sailed for New York, in which voyage he was captured and carried into Halifax, in Nova Scotia, when the vessel and cargo were condemned as prize. This statement was supported by the evidence of a passenger on board the vessel, by some of the crew, and by the tenor of a correspondence between The Mentor. 1 Acton. persons in France, New York, and Martinique, which proved that the blockade was at that time removed, or at least so far relaxed that no armed vessels had been seen off these ports during the period the vessel remained in the island. For the captors it was contended — that although the blockading fleet had been despatched to Surinam, a force had been left off the island to continue the blockade, and apprise vessels of its existence. This appeared even by the correspondence exhibited by the claimants, one of the letters admitting, that a British fifty gun ship continued off the island, and was now and then seen by the inhabitants. JUDGMENT. The court held, that to constitute a blockade the intention to shut up the port should not only be generally made known to vessels navigating the seas in the vicinity, but that it was [*59] the duty of the blockaders to maintain such a force as would be of itself sufficient to enforce the blockade. This could only be effected by keeping a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island. In the present instance no such measures had been resorted to, and this neglect necessarily led neutral vessels to believe these ports might be entered without incurring any risk. The periodical appearance of a vessel of war in the offing could not be supposed a continuation of a blockade, which the correspondence' mentioned had described to have been previously maintained by a number of vessels, and with such unparalleled rigor, that no vessel whatever had been able to enter the island dur ing its continuance. Their lordships were therefore pleased to order that the ship should be restored, the proof of property being sufficient, but directed further proof as to the cargo claimed for the American citizens mentioned. *THE MENTOR, Whitney, master. July 6, 1809. [*60] Condemnation for a breach of blockade. IN the Prize Court of Antigua this vessel had been claimed on behalf of his Majesty, by the Advocate-General, as a droit of admi The Mentor. 1 Acton. ralty. This had been rejected by the judge. Part of the adventure of the master, and those of the mate and mariners, had been ordered to be restored, and the ship and remainder of the cargo condemned for breaking the blockade of Martinique. Stephen and Swaby, for the captors, proved, by the letters and despatches of the captain-general and colonial prefect, at Martinique, to the minister of the marine and colonies, at Paris, that the blockade had been most rigorously enforced, insomuch as to excite apprehension that the place would be compelled, by the deprivations experienced, to surrender to the British squadron; that this blockade continued at the time the vessel entered the port of Fort Royal; and that the master had even been apprised by his owners' letter of instruction, that the blockade of Martinique might still be continued. If this surmise should prove true, he was ordered to lie in St. Lucia, awaiting the probable surrender of the island to the British forces, in which case he was to repair thither as the most advantageous market. These instructions contained an assurance, that should the vessel be in Martinique at the time of the surrender, the terms of the late treaty between Great Britain and the United States [*61] would protect her from detention. From all these cir cumstances there was no reason to doubt that the blockade was known to the master, and that he had been induced to hazard the vessel, from the superior advantages to be derived from disposing of his cargo in the blockaded port. Bowtler, for the claimant, contended, that the instructions of the owners were merely prospective and conditional, neither they nor the master at the time being aware of any blockade existing previous to the vessel's sailing; that he acted under this impression, and entered the island totally ignorant of the blockade. That there did exist no actual blockade at the time of the vessel's going into port, not a single vessel of war appearing in sight of the harbor, or in the neighboring seas through which he passed. That even by the tenor of the sentence of the Vice-Admiralty Court, restoring one part of the master's adventure and not the rest, it appeared the judge had not decided on the ground of any supposed breach of blockade; and that, even admitting the blockade to exist, it had not been known by the master so as to affect the case, until after he had disposed of his outward and purchased a return cargo, of which one third had actually been put on board. |