The "Telegrafo" or "Restauracion."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 15 February 1871 |
| Date | 15 February 1871 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 229
ON APPEAL FROM THE VICE-ADMIRALTY COURT OF THE VIRGIN ISLANDS, TORTOLA.
Mews' Dig. tit, Shipping; A. VIII. Sale and Transfer; 2. Title; b. In other cases. L.R. 3 P.C. 673; 40 L.J. Adm. 18; 24 L.T. 748; 20 W.R. 242; 1 Asp. 63. As to Colonial Courts of Admiralty, see Pulling's Index to the Statutory Rules and Orders, 1899, 3rd ed. p. 106.
[43] ON APPEAL FROM THE VICE-ADMIRALTY COURT OF THE VIRGIN ISLANDS, TORTOLA. OUR SOVEREIGN LADY THE QUEEN,-Appellant; AUGUSTUS McCLEVERTY, -Respondent* [Feb. 13, 14, and 15, 1871]. the " telegrafo " or " restauracion." Though goods piratically taken cannot be transferred to a third party as against their legitimate Owner, yet that rule does not apply to a Ship belonging formerly to a Pirate, as the taint of Piracy does not, in the absence of conviction or condemnation, continue, like a maritime lien, to travel with the Ship through her transfers to various Owners [8 Moo. P.C. (N.S.) 65]. A Ship was arrested by the Crown in Tortola, on a charge of Piracy. The affidavit which led to the Warrant of arrest alleged, that the Ship was bought at St. Marc, in Hayti, from a British subject by the Revolutionary Government of Hayti, and that the Ship, having been equipped as a Ship of War, was afterwards employed in acts of hostility. It appeared that the Ship had been sold by public auction, six months before seizure, to a bona fide Purchaser, a British subject. The Vice-Admiralty Court of Tortola sustained a protest to the jurisdiction of the Court, and decreed restitution of the Ship, but without costs or damages. On appeal, held, by the Judicial Committee (affirming such decree), that there was no authority to be derived from principle or precedent, for a Ship sold by public auction to a bona fide innocent Purchaser, before any proceedings have been taken on the part of the Crown against the Ship, beng afterwards arrested and condemned on account of having been engaged previously in piratical acts. In this case the appeal was brought from a decree of the Vice-Admiralty Court of the Virgin Islands, in a cause promoted on behalf of the Queen, in Her [44] Office of Admiralty, against the Steamship Telegrafo or Bestauracion, her tackle, apparel, and furniture, as a forfeiture to Her Majesty, as being the goods of Pirates. The Respondent, of the Island of Tortola, one of the Virgin Islands, a Planter and Merchant, appeared under protest to the jurisdiction of the Court. By this decree the Vice-Admiralty Court confirmed the protest, and decreed restitution of the Ship, which had been arrested under Warrant, at the instance of the Crown, by the (a) It appears from the American authorities that, if goods are damaged by actual contact with Sea-water, the Underwriters are liable, and it has been held, that if part of a cargo is damaged by Sea-water, and the vapour and gases arising from it injure another portion of the cargo which is insured, the Underwriters on the latter portion are liable, although the damage was not caused by immediately coming in contact with the Sea-water: See Parsons on Marine Insurance, Vol. I., p. 546, citing the case of Baker v. Manuf. Ins. Co., 12 Gray, 603; Cogswell v. Ocean Ins. Co., 18 La. 84. See also 1 Phillips, Law of Insurance, sec. 1099, pp. 627, 635. * Present: Lord Romilly (Master of the Rolls), Sir James William Colvile, and Sir Robert Phillimore (Judge of the High Court of Admiralty). 229 VIII MOORE N.S., 46 REG. V. M'CLEVERTY-TELEGRAFO (THE) [I87lj Administrator of the Government of Tartola, on a charge of Piracy, but without costs and damages. The facts of the case, as stated in the affidavits, were in substance, as follows: - The steamship Restauracion, formerly called the Telegrafo, was built at Greenock, in Scotland, in the year 1863. In the month of May, 1869, the revolutionary Government of Hayti purchased the Ship at St. Marc, in the Island of Hayti (a Port then in possession of Nissage Saget and the revolutionary Government of Hayti, then the established Government of that Country), from a British subject, whereupon the British Consul went on board the Ship and withdrew the British Eegister, the British Flag, and all papers relating to the Ship as British property. The Haytian authorities at St. Marc then went on board of the Ship, and such of the Crew as chose to remain under the nationality she was about to assume were enrolled, and the Haytian flag hoisted. The nationality of the Ship being changed, she received from the revolutionary Government of Hayti her commission as a Ship of War, and was placed under the charge of General Luperon, General-in-Chief of the National Armies of St. Domingo, who [45] in accordance with a convention entered into at the National Palace of St. Marc, Hayti, dated the llth of March, 1869, proceeded, with the assent, aid, and protection of the revolutionary Government at Hayti, to establish a provisional Dominican Government in the northern part of the Eepublic of St. Domingo. On the 7th of June, 1869, the Restauracion entered the Bay of Samana, in St. Domingo, and having communicated with the authorities on shore, and not receiving a reply, hostilities commenced; and after four hours of fighting in the Port and Town of Samana, the Town and fortifications, together with the garrison, surrendered to General Luperon, and a provisional Government was established in the Town of Samana, and the establishment of such Government duly communicated to the Agents of the Revolution abroad. An English Brig, an English Schooner, a Dutch Schooner, and an American Schooner, together with several foreign Merchants, were all aided and protected by General Luperon and the Restauracion while General Luperon was so in command of the same. On leaving Samana the Restauracion proceeded to the port of Azua; while there several of the followers of President Baez took refuge in the British Schooner Pomona. Officers were sent to demand their surrender; but as the Captain of the Pomona, an unarmed Vessel, claimed for them the protection of the British Flag, that Flag was respected, and the Dominicans allowed to remain unmolested in the Pomona. At no time during the period that the Restauracion was engaged in hostilities against the Government of President Baez did she pass out [46] of the waters and legal limits of the Dominican Republic, nor did she commit any acts of hostility against the Government of President Baez beyond the Municipal jurisdiction of San Domingo. On the 6th of July, 1869, the Restauracion, having been dismantled as a Ship of War in the port of Barahona, and obtained a Sea pass by the authorities of that port, was sent on her voyage as a Merchant Vessel for the Ports of Tortola and St. Thomas, to be put at the disposal of the Agents of the Revolution at those places, carrying a certificate to that effect under the hand of the General Military Commander, countersigned by General Luperon and the Manager of Finances pro tern., and also an authority of the same date from General Luperon and the other authorities to M. Domingo Accevedo, the Captain of the Restauracion, then a Merchantman, so as to enable him to transfer, sell, or lease the Ship to Messrs. Costa, Hermanos, and Co., or to such person as they might authorize. The Restauracion arrived at the port of Road Town, Tortola, on the 12th of July, 1869. Shortly after her arrival she was seized and detained under the authority of the Administrator of the Government of Tortola, but was shortly after restored to the Captain by the authorities of the Island. After her restoration the Captain, being largely indebted to the Crew, and the ship being further liable for necessaries, stores, and supplies, and the Captain unable to pay such liabilities, he, with the authority of the Firm of Costa, Hermanos, and Co., of the Island of St. Thomas, placed the Vessel in the hands of one Shirley, a licensed Auctioneer in the Colony of Tortola, to dispose of the same at public sale. Proper notifica-[47]-tion of the sale was made and circulated by him in the respective Islands of St. Thomas and Tortola. On the 21st of July, 1869, the Restauracion was put up to public sale, when the Respondent, being the highest bidder, became the Purchaser for the sum of 230 reg. v. m'cleverty-telegrafo (the) [1871] vm moore n.s., *s $10,025; and upon payment of the purchase-money a Bill of sale of the same...
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