1824.

The St. Jago

de Cuba.

a vessel in a strange port, by being falsely held up as foreign by her owners. And the question will now be considered, whether these material men have sustained their claims against this vessel upon that principle.

With this view the claims must be examined separately.

The large claim of Maher himself, the real owner, but affected agent, of the vessel, has been properly rejected, and he has not appealed.

That of Despreux, for 1856 dollars, was sugtained in the Court below, and from that the United States appeal.

This item, we are of opinion, is affected by express notice. Guion swears, that upon the arrival of the vessel at Baltimore, he gave notice to Despreux of her American character, warned him against repairing her, and received for answer, that he was secured for the repairs. There is nothing in the transcript to repel this evidence, but many circumstances to corroborate it. He, therefore, does not bring himself within the rule.

There is, however, one item in this account, to the amount of 300 or 400 dollars, which was certainly good against all the world. This was for wharfage; but the credits in the account will more than cover it, and having been paid by Maher, or Strike, his employer, it is but reasonable that the payments should be applied to the item entitled to precedence.

The three claims of Hubbard & Co. for 72 dollars and 4 cents, James Ramsay for 645 dol

The St. Jago

de Cuba.

lars and 99 cents, and Richard Coleman for 256 1824. dollars and 3 cents, have nothing in their circumstances to distinguish them from each other. They all allege the vessel to be foreign, and as she was, in fact, not foreign, the question is, whether there was an imposition practised upon them, under circumstances calculated to deceive and mislead men of ordinary vigilance.

We are of opinion there was not. It appears. that immediately on the vessel's arrival she was libelled by Gunn, and although some difficulty has existed in the cause, in consequence of Gunn's libel not having been inserted in the transcript, yet there are documents connected with it inserted, which sufficiently explain the tenor and purport of the libel, if any doubt could be entertained what that tenor was. These are, the answer and claim to it, and a retraction of that claim, from which it appears, that during the whole time these material men were furnishing this vessel, she was under arrest by the Court of Admiralty, under a libel, claiming her as American property, in her home-port, which claim, the retraction of the answer filed to the libel fully admits. There was, then, to say the least of the facts, enough to put reasonable men upon inquiry. Despreux, it appears, was put upon inquiry, and obtained security, and with ordinary prudence or vigilance these material men may have done the same. Many facts in the case concur to affect them with suspicion of positive knowledge of her real character. We think they have not sustained the exception made in the Court below in their favour,

1824.

The St. Jago de Cuba.

from the general doctrine, that such claims cannot be sustained against a vessel in her homeport.

The decree of the Court below, therefore, so far as the appeal of the United States brings it before this. Court, will be reversed, and the proceeds of the vessel and cargo adjudged to the United States.

Decree reversed.

DECREE. This cause came on to be heard, &c. On consideration whereof, it is ADJUDGED, ORDered, and DECREED, that so much of the decree of the Circuit Court as affirms the decree of the District Court, dismissing so much of the libel as relates to the lading of said vessel, and also so much thereof as sustains the several claims of Pietro Rosso, Joseph Despreux, Hubbard and Carr, James Ramsay, and Richard Coleman, be, and the same hereby is annulled. And it is further DECREED and ORDERED, that the proceeds of the cargo or lading of the said schooner St. Jago de Cuba, and so much of the proceeds of the sale of the said schooner as is embraced in the appeal to this Court, be, and the same are hereby condemaed as forfeited to the United States, and that the proceeds of the said schooner St. Jago de Cuba, and her cargo, be distributed according to law; for which purpose, this cause is remanded to the said Circuit Court, with instructions to make such distribution.

1824.

The Margaret.

[INSTANCE COURT. SHIP REGISTRY ACT.]

The MARGARET, alias CARLOS FERNANDO,
HALEY, Claimant.

A transfer of a registered vessel of the United States, to a foreign
subject, in a foreign port, for the purpose of evading the revenue
laws of the foreign country, with an understanding that it is to be
afterwards reconveyed to the former owner, works a forfeiture of
the vessel, under the 16th section of the Ship Registry Act of the
31st of December, 1792, c. 1., unless the transfer is made known
in the manner prescribed by the 7th section of the act.
The statute does not require a beneficial or bona fide sale; but a
transmutation of ownership, “by way of trust, confidence, or
otherwise," is sufficient.

Quare, Whether, in such a case, a reconveyance would be decreed
by a Court of justice in this country?

The proviso in the 16th section of the Ship Registry Act, being by way of exception from the enacting clause, need not be taken notice of in a libel brought to enforce the forfeiture. It is matter of defence to be set up by the party in his claim.

The proviso applies only to the case of a part owner, and not to a sole owner of the ship.

The trial, in such a case, is to be by the Court, and not by a jury, in seizures on waters navigable from the sea by vessels of ten tons burthen and upwards.

A registered vessel, which continues to use its register, after a transfer under the above circumstances, is liable to forfeiture under the 27th section of the act, as using a register without being actually entitled to the benefit thereof.

APPEAL from the Circuit Court of Maryland.

This cause was argued by the Attorney-Gene- Feb. 11th. ral, for the appellants, and by Mr. D. B. Ogden. for the respondent and claimant.

1824.

The Margaret. Feb. 15th.

Mr. Justice STORY delivered the opinion of the Court.

This is a case of seizure, for an asserted forfeiture under the ship registry act of the 31st of December, 1792, c. 1. The libel contains five counts, the four first of which are founded on the 16th section, and the last on the 27th section of the act. The former declares, "that if any ship or vessel heretofore registered, or which shall be hereafter registered, as a ship or vessel of the United States, shall be sold or transferred, in whole or in part, by way of trust, confidence, or otherwise, to a subject or citizen of any foreign prince or state, and such transfer shall not he made known, in manner hereinbefore directed, uch ship or vessel, together with her tackle, apparel, and furniture, shall be forfeited." The manner of making known the transfer here referred to, is found prescribed in the 7th section of the act; and, so far as respects the present case, would have been a delivery of the certificate of registry by the master of the vessel to the collector of the district, within eight days after his arrival in the district, from the foreign port where the transfer was made.

It appears, from the evidence, that the claimant was the sole owner and master of the schooner under seizure. She was duly registered at the port of Baltimore; and on the 4th day of May, she was duly transferred at Havana, by procuration, to a Spanish subject domiciled in Cuba, and received the proper documents evidencing her Spanish character. The schooner was, at this time, lying at Matanzas. and soon afterwards sail