CO129-052 - Sir Bowring - 1855 [9-12] — Page 329

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LF Am 7:22

M23z

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Byomery

Sir John Bowring,

11th December, 1855.

Victoria, stongkong,

to

Sir com Molesworth, Bart.

1 Inclosures.

N172.

Feceiver

of the "Prize Brig "Greta ".

Reporting condemnation

2.04 325

No. 56.◄

GOVERNMENT NOTIFICATION.

The subjoined Judgment of the Vice-Admiralty Prize Court, in the matter of the Brig Greta, is published for general information.

By Order,

Colonial Secretary's Office, Victoria, Hongkong, 21st November, 1855.

VICE-ADMIRALTY PRIZE COURT OF HONGKONG. Wednesday, the Fourteenth day of November, 1855. Before the Honourable Joan WALTER HULME, Esq., Judge.

The Greta, Thaulow master, Prize-Transport in the Service of the Enemy.

Judgment:

W. T. MERCER, Colonial Secretary.

War having, on the 28th March, 1854, been declared by Her Most Gracious Majesty the Queen of Great Britain and Ireland against the Emperor of All the Russias-the Bremen Brig Greta, having on board two hundred and seventy Russian enemies, was, together with her cargo, on the 1st of August, 1855, seized by Her Majesty's Steam Sloop-of-war Barracouta in the Sea of Ochotsk, off the Coast of Saghalien, in Latitude 51 North, Longitude 146 East, while on a voyage from the port of Simoda in Japan, to the Russian port of Ayen, as being a Transport in the service of the Enemy, and consequently a lawful prize to Her Majesty, and brought into the Vice- Admiralty Prize Court of Hongkong to be ajudicated upon accordingly. The usual Monition having issued, a claim to the ship was put in by Lieutenant Thaulow, the master, on behalf of Captain Laun, a Bremen subject, as owner; a clain to the cargo was also put in by Pustau and Brodersen, natural born subjects of the King of Denmark. The Acting Queen's Advocate appeared Lieut. Thaulow in support of the claim to the ship, and Mr Green as counsel on behalf of the claimants of the cargo.

on behalf of the Captors, The facts, as disclosed by the principal witness, Lieut. Thaulow, Master of the Greta, corroborated (with one or two exceptions, which will be pointed out in their proper places) by the First and Second Mates and a Seaman belonging to the Greta, coupled with the Ship's log and other documentary evidence, appear to be as follows:-

That the Greta was originally a British ship, built at Aberdeen in 1840, and at that time she went by the name of the Jane Geary- that in the year 1854 she was sold to Franz Knoop of Victoria, Melbourne-that in the same year, that is to say, on the 1st November, she was resold by the said Franz Knoop in Hongkong, China, through his Attorney, Ludvig Auguste Lübeck, to one Engen Laun, a citizen of Bremen, through his Agents, Messrs Pustau and Brodersen-that in March of 1855 she was chartered of Pustau & Co., the Agents of the ship, by Robert P. De Silver, United States' Naval Storekeeper, to take up a cargo of Naval Stores for the United States' Squadron at Hakodadi in Japan-that the said vessel, then going by the name of the Greta, sailed from Hongkong on the 22d of April 1855 on her voyage to Ilakodadi in Japan, having on board the said United States' Naval Stores, and also a cargo of merchandize belonging to Pustan & Co.; who, it distinctly appears from the evidence of Lient. Thaulow, the Master, had the direction and manage- ment with respect to the Greta's employment or trade, and with whom he, the Master, corresponded on the concerns of the vessel or her cargo that she arrived at Hakodadi on the 18th May, and commenced discharging the American Stores on the 6th June, and completed the discharge on the 15th June. A small portion of Messrs Pustau & Co.'s cargo was also discharged or bartered at this port, While at Hakodadi, in consequence of some arrangement which took place, the nature of which does not appear, the Greta, instead of making the port of Hakodadi her place of destination, proceeded on the 21st June on a voyage to Simoda, also a Japanese port, and arrived there on the 4th July-on the 7th discharged some of her cargo, and on the 9th discharged the remainder of her cargo. This appears to be the case from the Log Book, but from the evidence of Lieut. Thaulow the remainder of the cargo was on board the Greta when she left Simoda for Ayen. While at Simoda, a Charterparty was signed for the carriage of two hundred and seventy Russian Officers and Seamen (who had been wrecked off that place in the Russian Frigate Diana) from that port, and also another Japanese port named Hada, to Ayen, a Russian port, for the purpose of enabling the said Russians to work their way home through Siberia. terparty was left with the Supercargo at Simoda,-the other is in the possession of Lieutenant Pouschkine, the Senior Officer of the One copy of this char- Russians: it was made on the 9th July last between the Supercargo and the Master and two of the Russians, of whom Lieut. Pouschkine was one. The ship was to receive Fifteen Hundred Pounds and Two Thousand Dollars for the service; bills on bankers in London or Amsterdam were given for these amounts, and left at Simoda (with the Supercargo, I infer,)

According to the evidence of the Master, Thaulow, all the Russian passengers were taken on board at Hada, in which he is confirmed by the evidence of the Seaman belonging to the Greta, while the First Mate states that twelve, and the Second Mate that ten, were taken on board at Simoda; but this is of no great importance. The Greta sailed from Simoda on the 10th July under American colors, and arrived at Hada on the 11th July, from which place she sailed on her voyage to Ayen on the 14th of that month, and was captured on the 1st August by Her Majesty's Steam Sloop Barracouta, The American colors were at the stern when the Barracouta came alongside. The Master ordered these colors to be taken down and the Bremen colors to be hoisted. According to the Master's evidence and that of the Seaman, there were no colors on board except the Bremen and American, while the First and Second Mate state that there was also on board the color representing the German Confederation. At the time of the capture, all the Russian passengers were down below, as the Master did not think that a British man-of-war would let them pass. The hatches were not closed, a sail was thrown over them. It may be remarked, that the Log Book of the Greta is all but silent on the subject of taking Russians on board.

In looking at this evidence, it seems to me impossible to arrive at any other conclusion than that the Greta was at the time of her capture a Transport in the service of the Enemy-that she was guilty of fraudulent concealment, and was sailing under false colors-and that she is consequently, according to the course of Admiralty and the Law of Nations, subject to condemnation. made by Lieut. Thaulow, the Master, on behalf of the owner, to deny the Greta's liability in point of strict law to confiscation; but an Indeed no attempt is appeal is made to the sympathies of the Court, and it is urged that the shipwrecked Russian Officers and Seamen became distressed "Mariners on the Coast of Japan, and as such, were to be looked upon, not as enemies who had lost their vessel in battle with the British "or French fleet, and who had taken refuge on shore to escape becoming prisoners of war; but were to be looked upon with sympathy as a "fallen foe whom we were not allowed to abandon, but to whom we were to lend a hand to help them back to their native hearths." While entering my judicial disclaimer against any such doctrine, (although individually deeply regretting the sufferings which the prisoners may have undergone, and lamenting, in common with all, the miseries which have arisen out of the present unfortunate but necessary war,) let me see where the sympathy of either the owner of the ship or cargo is to be discovered? and no where do I find the sympathetic feeling so strongly developed as in securing the sums of fifteen hundred pounds and two thousand dollars for the conveyance of these unfortunate men to Ayen.

I now proceed to the consideration of the question of the claim set up to the cargo on the part of Messrs Pustau & Co. It is urged by Mr Green as their Counsel, that, even supposing the ship to be condemned, still the cargo, as being the property of an innocent and distinct owner, would not be liable to confiscation-and for this he cites the case of the Staudt Embden, 1 Cr. Rob. 30. He also cites the cases of the Susan and the Hope, 6 Cr. Rob. 462 and 463 in notis, for the purpose of shewing, that even where the owner of the ship and cargo is the same person, still, if he was ignorant of the illegal shipment by the master which renders his ship subject to condemnation, his cargo (being unrepresented) would not be liable. To render these cases applicable, the innocence of Messrs Pustau & Co, must be established.

It is further urged, that the present question has been placed beyond discussion by Her Majesty's Declaration of the 28th March 1854, in which Her Majesty renounces all claims to the confiscation of neutral property found in Enemies' ships, and a fortiori in