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![handle is hein.slavery/ssactsengr0386 and id is 1 raw text is: 3 C. ROD. 187.
THE PHCENIX
431
practice but from the fair sense of the particular contract between the parties, order
any part of the freight to be paid ; and I reject the application.
THE PH(ENIX -(Susini, Master). Oct. 15, 1800.-Colonial trade-Voyage from
a French colony with false destination to Altona, actually to France or Spain-
Ship and cargo condemned.
This was a case of a ship and cargo taken on a voyage from Guadaloupe, osten-
sibly, to Altona, but captured off Cape Finisterre, with a French pilot on board, and,
as it appeared to the Court, going actually into some French port, or into Corunna.
A claim was given for both ship and cargo, as the property of Mr. Susini, a person
born in Tuscany, but residing chiefly in French islands.
[187] For the captors, the King's Advocate and Arnold.-There are several grounds
on which it is impossible for this person to obtain restitution on the present evidence.
The proofs of property are very doubtful and imperfect, and the suspicion very strong,
that this person who appears to have been wandering about on different adventures,
could not be the bona fide owner of this property, for which no adequate funds
appear in any part of his history. His national character is, besides, so composed
as to bring him under the description of a French merchant. But these grounds are
immaterial, any further than to shew the true and original complexion of this case;
as were the property and neutral character allowed to be fully proved, the course of
the voyage would be alone sufficient to subject both the ship and cargo to confisca-
tion. It is a voyage, as it is asserted, to Altona ; but at the time of capture they
were found sailing so far south as the Cape of Finisterre, with a French pilot on board,
and as it is confessed by one witness, going into Corunna for water ; another
witness acknowledges that he was hired to go on a voyage direct to Bourdeaux-
taking it therefore to be a voyage between the colony and moth er.country of the enemy,
or between the colony and mother-country of an ally in the war, the cargo would be
subject to condemnation on the authority of several cases determined in this Court
(The Immanuel, Eysenberg (2 C. Rob. 186), Rose, Young). But those were
cases of an open and professed, destination, and in them the Court restored the ships.
In this case, there is the additional aggravating circumstance of a destination
fraudulently coloured to disguise the real course of the transaction. [188] That
an additional penalty should attach on such a case would be highly reasonable,
and in the case of The Fortuna, Norberg, the Court did consider the fraudulent
conduct with which the whole of that case was covered, as a just ground for con-
demning the ship.
On the part of the claimant, Laurence and Sewell denied the sufficiency of the
arguments with which it was attempted to impeach the property and the national
character of the claimant. On the question of law, it was contended that there had
been no case determined by the Court which could be deemed an authority for the
present case. The Fortuna, Norberg, was a case in which the destination was
between the mother-country and the colony; but the ground of condemnation in
that case was the gross fraud apparent in every part of the case. In the present
case no such imputation could be sustained; allowing the course, at the time of
capture, to have been for Corunna, it had arisen only from a supervening necessity,
which in no degree impeached the truth of the original destination to Altona.
Judgment-Sir W. Scott: This is the case of a ship which is claimed as well as
the cargo for a person of the name of Susini, whose history has been very eventful,
and leaves considerable doubt on the important question of real national character.
He appears to have been a native of Tuscany, who had resided a considerable time
in St. Domingo, and was at that time the owner of a French vessel called the
L'Aigrette. When Je-[189]-remie was taken by the British forces, the same vessel
continued to be navigated by him under English colours, and was, as such, taken and
condemned by the French ; he then went to St. Thomas, where he remained inactive
and unemployed two years; he now describes himself as a burgher of St. Thomas,
and considers himself to have been for the last five years a subject of the king of
Denmark; but during that time St. Thomas seems to have been as little visited
by him as any other spot on the globe. He is not a married man, holding any con-
nection with that place by the residence of his wife and family : he is a navigator,
and appears to have been personally during these five years hardly there at all.
Under these circumstances, it is not a burgher's brief alone, that will be sufficient to](ViewImageLocal?handle=hein.slavery/ssactsengr0386&div=1&collection=&method=preview&ext=.png&size=3)