Memoirs of Service Afloat, During the War Between the States

by Raphael Semmes

“In re Lafayette.

“The ship being under the enemy’s flag and register, is condemned. With reference to the cargo, there are certificates, prepared in due form, and sworn to before the British Consul, that it was purchased, and shipped, 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 the case; that of Craig & Nicoll, and that of Montgomery Bros. Messrs. Craig & Nicoll say, that the grain shipped by them, belongs to Messrs. Shaw & Finlay, and to Messrs. Hamilton, Megault & Thompson, all of Belfast, in Ireland, 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 is, on the contrary, consigned to the order of the shippers; thus leaving the possession, and control of the property, in the hands of the shippers. Farther: The shippers, instead of sending this grain to the pretended owners, in a general ship, on freight, consigned to them, they paying freight, as usual, have chartered the whole ship, and stipulated, themselves, for the payment of all the freights. If this property had been, bona fide, the property of the parties in Belfast, named in the depositions, it would undoubtedly have gone consigned to them, in a bill of lading, authorizing them to demand possession of it, and the agreement with the ship would have been, that the consignees and owners of the property should pay the freight, upon delivery. But even if this property were purchased, as pretended, by Messrs. Craig & Nicoll, for the parties named, still, their not consigning it to them, and delivering them the proper bill of lading, passing the possession, left the property in the possession, and under the dominion of Craig & Nicoll, and as such liable to capture. See 3 Phillimore on International Law, 610, 612, to the effect, that if the goods are going on account of the shipper, or subject to his order or control, they are good prize. They cannot even be sold, and transferred to a neutral, in transitu. They must abide by their condition, at the time of the sailing of the ship.

“The property attempted to be covered by the Messrs. Montgomery Bros., is shipped by Montgomery Bros., of New York, and consigned to Montgomery Bros., in Belfast. Here the consignment is all right. The possession of the property has legally passed to the Belfast house. But when there are two houses of trade doing business as partners, and one of them resides in the enemy’s country, the other house, though resident in a neutral country, becomes also enemy, quoad the trade of the house in the enemy’s country, and its share in any property belonging to the joint concern is subject to capture, equally with the share of the house in the enemy’s country. To this point, see 3 Phillimore, 605. Cargo condemned.”

This is the whole case of the Lafayette. As this case was coupled, in the criticisms in the Yankee papers to which I have alluded, and which the reader will see presently, with the case of the Lauretta, not yet captured, I will anticipate the capture of this ship by a few days, that the reader may have the facts also in her case.

“In re Lauretta.

“The ship being under the enemy’s colors and register, is condemned. There are two shippers of the cargo, the house of Chamberlain, Phelps & Co., and Mr. H. J. Burden—all the shippers resident, and doing business in the city of New York. Chamberlain, Phelps & 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 Costarelli. 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 Contencin, being duly sworn, says, that he is clerk with Chamberlain, Phelps & Co., and that part of the merchandise in the within bill of lading is the property of the subjects of the King of Italy.’ This certificate is void for uncertainty. It does not separate the property in the bill of lading, and say which of it belongs to the ‘subjects of the King of Italy,’ and which to the enemy. For aught that appears, ‘the subjects’ alluded to may own no more than a single pipe-staff apiece. Indeed, they can own nothing, as it does not appear what they own. Further: If the property was identified in the certificate, the ‘subjects of the King of Italy’ are not. No man—for there is none named—could claim the property under this certificate. It is, therefore, void, for this reason. See 3 Phillimore, 596.

But the flour and staves are consigned to the order of the shippers, and this, alone, would be sufficient to condemn them, even if the articles had been identified, and the proper owners pointed out in the certificate. The possession of the property at the time of the sailing of the ship, must be divested out of the enemy-shipper. See 3 Phillimore, 610, 612, cited in the case of the Lafayette.

The contingent destination of this property, is another pregnant circumstance. It shows that it was intended for a market, and not for any particular neutral owner. It was to be delivered at Gibraltar or Messina, as the shippers might determine, after the sailing of the ship—probably upon advices received by steamer. So much for the claim of Chamberlain, Phelps & Co.

“The property shipped by H. J. Burden, consists of 998 barrels of flour, and 290 boxes of herring, and is consigned to Charles R. Blandy, Esq., at Funchal, Madeira. The shipper makes the following affidavit before the British Consul, in New York: ‘That all and singular, the goods specified in the annexed bill of lading, were shipped by H. J. Burden, in the bark Lauretta, for, and on account of, H. J. Burden, subject of her Britannic Majesty.’ Mr. Burden may be a very good subject of her Britannic Majesty, but he describes himself as of 42 Beaver Street, New York City, and seems to lose sight of the fact, that his domicile in an enemy’s country, for the purposes of trade, makes him, quoad that trade, an enemy. Cargo condemned.”

The reader is now in a condition to understand the following criticism, from that very elegant sheet, the New York “Commercial Advertiser,” and to appreciate the justice and courtesy with which I was treated by the press of New York, generally.