SOLD
1,800.00USD+ buyer's premium + applicable fees & taxes.
This item SOLD at 2020 Jun 27 @ 12:13UTC-7 : PDT/MST
Did you win this lot?
A full invoice should be emailed to the winner by the auctioneer within a day or two.
War of 1812
Massachusetts Town’s 1st Privateer Schooner Agreement Made at Newburyport’s “Schooner Manhattan” by Captain Allexander McCully and Its Thirty-One Crew Members for Newburyport's First Privateer Vessel of the War of 1812 an Agreement Printed & Signed Ten Days After Law is Passed
July 7, 1812-Dated (June 18th, 1812) War of 1812 Declared, Rare and Unusual Partially-Printed Document Signed, by the Signatures and Witness for the Privateer Crew of 31 Sailors Individually Signed Articles of Agreement for the Privateer “Schooner Manhattan”, less than one month after the United States Declaration of War, Good.
On June 18th, 1812 the United States officially declared a state of War on Great Britain. On June 26th, 1812, a week after Congress voted for War, it passed a bill allowing Privateers, which President James Madison signed into law the next day on June 27th. Offered is an exceptionally important American War of 1812 Naval Warfare Document signed just 10 Days Later on July 7th, hardly enough time to typeset and print this Agreement since the Privateers Act was authorized as law in the United States. This official printed and acknowledged Articles of Agreement between the town of Newburyport (MA), and the Captain and Crew of the “Schooner Manhattan” whose purpose was to sail from Newburyport, “... on a cruise of 1 month against the enemies of the United States of America.”
This Privateer Agreement measures 16.5” x 13” and is not in the best of condition, being laid down on a tan craft paper as a reinforcement backing, due to the fragile condition of the top layer source Document. The upper half of this Partially-Printed Document records the printed terms of Agreement between the Town and the Crew, and includes specific instructions as to how any booty and “Prizes” taken were to be distributed, and what would happen in case of instances of crew insubordination, mutiny, or negligence of duty.
Ominously, its Article 6 addresses what would happen if a crew member was injured stating: “If any person should lose a leg or arm in fight, he shall receive the sum of two hundred and fifty dollars -- If any person shall loose (sic) an eye in fight, he shall receive the sum of one hundred and fifty dollars” and so on. The lower half of this Document includes the actual Handwritten inked signatures for the crew of 31 men and witness to their signing (though some names have been struck through), some having condition issues in readability. Signers each record their rank and job title, including the Captain, the officers, and the seamen. Some paper loss affects a portion of seven lines of the agreement where lacking near center, at some of the witness signatures, and irregular roughness lacking some of the outer borders. Nonetheless, this is an incredible record of the hiring of an actual Privateer, thus its rarity exceeds its condition.
The Schooner Manhattan was Newburyport's first Privateer of the War of 1812, according to Blake's History of Newburyport, page 197. The printed Agreement form describes the share of prizes to be issued to each category of officer and crew. Rewards for the loss of limb or eye are detailed, and additional shares are stipulated for the man who first sights and boards a prize. The term of the Privateering ventures cruise was only one month. The rarity of this historic Privateer’s Agreement is further increased as it was signed and issued less than 30 Days after the United States Declaration of War on Great Britain.
A “Privateer” is a Private Person or Ship that engages in Maritime Warfare under a Commission of War. Since robbery under arms was a common aspect of seaborne trade, until the early 19th century all merchant ships carried arms. A sovereign or delegated authority issued commissions, also referred to as a “Letter of Marque,” during wartime.
The official Commission Document empowered the holder to carry on all forms of hostility permissible at sea by the usages of war. This included attacking foreign vessels and taking them as prizes, and taking prize crews as prisoners for exchange. Captured ships were subject to condemnation and sale under prize law, with the proceeds divided by percentage between the Privateer's sponsors, shipowners, captains and crew.
A “Percentage” share of the booty’s value usually went to the issuer of the commission (i.e. the sovereign or government).
Privateering allowed sovereign governments to raise revenue for war by mobilizing privately owned Armed Ships and sailors to subsidize state power. For its participants, Privateering provided the potential for a greater income of wealth and profit than obtainable as a regular merchant seafarer. Of course, it was also at greater risk to life, limb and one’s liberty. However, this incentive increased the risk of Privateers sometimes resulted in turning to piracy when war ended.
The official Commission Document usually protected Privateers from accusations of piracy, but in practice, the historical legality and status of Privateers could be vague. Depending on the specific sovereign and the time period, Commissions might be issued hastily; Privateers might take actions beyond what was authorized in the Commission, including after its expiry.
A Privateer who continued raiding after the expiration of a Commission, or the signing of a Peace Treaty, could face accusations of piracy. The risk of piracy and the emergence of the modern state system of centralised military control caused the decline of Privateering by the end of the 19th century.
When the United States went to war against Britain in June 1812, the U.S. Navy had about 15 warships in commission, including a squadron of three frigates and two sloops-of-war that sailed from New York within an hour of receiving word of the declaration of war. America began the War of 1812 with no privateers ready to sail. Privately owned merchant ships that, in wartime, were armed by their owners and licensed by the government to attack the maritime trade of the enemy, privateers profited by the sale of ships and cargoes they captured. As soon as word of the war arrived, ship owners in the port cities up and down the Atlantic coast raced to get their sleek sloops and schooners to sea in their new predatory role. They found cannon where they could, signed up oversized civilian crews, and sent messengers to Washington to get licenses called letters-of-marque from the federal government. On 26 June 1812, a week after Congress voted for war, it passed a bill allowing privateers, which President James Madison signed the next day.
With their licenses—which would make their captures lawful, not piratical, prizes—and their ships manned and outfitted for war, privateers began to stream out of American ports in July 1812. Observers assumed that privateers, a historical weapon of weaker maritime powers, would be critical to the American war effort. In a 4 August 1812 letter, former President Thomas Jefferson predicted that the Royal Navy would prevail against the U.S. Navy, but “our privateers will eat out the vitals of their commerce.” Jefferson was no great military mind—in the same letter, he infamously predicted that conquering Canada would be a “mere matter of marching”—but he may have been right about the privateers.
The U.S. Navy began the war with resounding single-ship victories—the Constitution sank the Guerriere, the United States captured the Macedonian, and the Java was blown up after “Old Ironsides” pummeled her into a wreck. In many of the recent books about the War of 1812, those victories receive a great deal of attention. That is not surprising. They stirred America’s pride at a time when the country was reeling from the capture of Detroit and defeats along the border with Canada. Yet the U.S. Navy’s inspiring battles on the high seas did not alter the course of the war. The loss of a few warships did not seriously weaken the Royal Navy. Rather, three other maritime campaigns were significant:
• the battles for control of the lakes (Erie, Ontario, Champlain) that were critical for both sides’ efforts to attack or defend the northern frontier
• the British blockade of the American coast, which slowly strangled the U.S. economy and strained the government’s financial ability to wage war
• America’s privateering campaign against British trade.
Privateering was critical for the American war effort. In the three years of the War of 1812, U.S. Navy warships captured about 250 vessels, but American privateers took at least five times that number of British merchant vessels—at least 1,200, but probably as many as 2,000, although no one knows for sure. The privateers burned some of the British merchant ships they captured, ransomed others back to their owners, lost many to recapture by the British navy, and brought home prize ships and goods that sold for millions of dollars.
The privateering business was thoroughly modern and capitalistic, with ownership consortiums to split investment costs and profits or losses, and a group contract to incentivize the crew, who were paid only if their ship made profits. A sophisticated set of laws ensured that the capture was “good prize,” and not fraud or robbery.
After the courts determined that a merchant ship was a legitimate capture, auctioneers sold off her cargo of coffee, rum, wine, food, hardware, china, or similar consumer goods, which ultimately were bought and consumed by Americans. Because it involved so many owners and seamen directly, and the American populace indirectly, some earlier historians termed the privateers’ war a “war of the people.” In addition, the government took a large cut of the proceeds off the top as customs duties, which flowed into the Treasury.
As the British blockade began to grind the American economy down, it also largely prevented the U.S. Navy from getting to sea. With the Army’s seasonal campaigns against Canada a failure, the privateers’ war on the enemy was the only way America could strike back at the British Empire. The privateers’ exploits at sea became legendary for their ruses and flair. The psychological effect (and the financial effect) on Liverpool and London merchants as the American privateers made brazen captures in the Irish Sea and the English Channel ultimately may have played a role in curbing British enthusiasm for continuing the war against America—especially after Napoleon, the existential enemy of Britain, abdicated in April 1814.
Most of the books published for the bicentennial of the War of 1812 are oblivious to privateering. Although the analogy is obviously not perfect, writing about the war at sea in the War of 1812 without referring to privateers is like writing about the war at sea in World Wars I or II without referring to U-boats. Despite the critical role of privateers, despite the entrepreneurship and drama in the sort of war they waged, it is surprising that most of the new War of 1812 books by American writers minimize, if not air-brush out, the privateers’ contribution.
As fewer historians write about privateers, the popular understanding of privateers disappears, and a critical aspect of American maritime history may be lost. Yet according to Andrew Lambert, American privateers captured 1 of every 15 British merchant vessels during the War of 1812. By the last year of the war, privateers were really all the United States could mount as a maritime threat to Britain. Whether their audacious captures and burnings influenced British public opinion or diplomacy are contested issues. But privateers were a critical aspect of war-fighting for the United States in the War of 1812.
Although nations had used privateers for centuries before 1812, privateering became a peculiarly American way of war, an effort from the ground up, decentralized, tied to entrepreneurship and patriotism. Privateering drew on the resources of the civilian world, and without calling upon a beleaguered and insolvent government for funds or direction, privateers allowed the profit-making motive, and the mass of American people, to be harnessed to the war effort.
Auction Location:
P.O. Box 3507, Rancho Santa Fe, California, 92067, United States
Previewing Details:
Auction lot view is available only by Special Arrangement. Please phone us at (858) 759 3290 to discuss the details.
Taxes:
| Tax | Rate | Desc. |
| CST |
8.25% |
California |
| SST |
8.75% |
San Diego County |
Buyer's Premiums:
| From (Incl.) | To (Excl.) | Premium |
| 0.00 |
Infinite |
25% |
Additional Fees:
Shipping Details:
We will ship worldwide.
Payment Details:
Paypal address is auctions@earlyamerican.com
Accepted Payment Methods:
- VISA
- Master Card
- AMEX
- Discover
- Money Order/Bank Draft
- Check/Cheque
- PayPal
- Wire Transfer
Early American History Auctions - Terms & Conditions of Sale
BY PARTICIPATING IN THE AUCTION EACH BIDDER ACKNOWLEDGES THAT THE BIDDER HAS READ AND UNDERSTANDS AND AGREES TO THESE TERMS & CONDITIONS OF SALE. (PLEASE REFER TO SECTION 12 "DEFINITIONS")
1. General Terms.
All Bidder(s) at the Auction acknowledge and agree that the following General Terms shall apply at all times to the conduct of the Auction:
a. The Auction is by public mail/phone/email/internet/and/or fax. Absentee & Live Bid Closing Date: Saturday, June 27, 2020 beginning at 9:00 a.m. Pacific Time. The Auction inducted in accordance with the regulations of the State of California and the City of San Diego.
b. Any Bid in the Auction automatically constitutes acceptance by the Bidder, and is deemed to incorporate by reference these General Terms and Conditions.
c. A Purchaser's Premium of twenty percent (25%) on each individual Lot will be automatically added to all purchase(s) made by successful Bidder(s); (or twenty-five percent (25%) of the "Hammer Price" if a given Bid is placed through any other selected outside auction service including Invaluable and LiveAuctioneers) it being understood that EAHA may waive such fee for reacquisition(s) by Consignor(s).
d. The Consignor(s) may Bid and purchase Lot(s) in the Auction and Consignor(s) that Bid(s) on his/hers/its own Lot(s) in the Auction may pay a different fee than the Purchaser's Premium charged to all other(s).
e. If the Consignor shall re-purchase a Lot that is either returned to the Consignor or otherwise dealt with or disposed of in accordance with the Consignor's direction, EAHA reserves the right to make appropriate adjustments.
f. EAHA reserves the right to include in the Auction its own Merchandise and have direct or indirect interests in any of the Lot(s) offered for sale in the Auction.
g. EAHA may bid for its own account on any given Lot(s) at the Auction.
h. EAHA may have information about any given Lot(s) that may not be publicly available, and reserves the right to use such information without making disclosure in the Catalog.
i. All Lot(s) may, at EAHA's sole discretion, carry a Reserve.
j. All Lot(s) will be sold to the highest Bidder as determined by the Auctioneer.
k. If any dispute arises of and concerning a given Bid at the Auction, the Auctioneer's decision shall be considered absolute and final.
l. No "Unlimited" or "Buy" Bid(s) will be accepted by the Auctioneer at the Auction.
m. Any announcements made on the day of the Auction shall take precedence over any terms that may be contained in the Catalog and/or other announcements and/or documentation.
n. The Auctioneer reserves the right, without recourse from any Bidder or Consignor, to postpone or delay the Auction, for a reasonable period of time, due to any significant event which, in the sole judgement of the Auctioneer, makes it inadvisable to hold the Auction as scheduled.
2. The Bidding Process.
All Bidder(s) in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. The Auctioneer may open or accept a Bid on any Lot by placing a Bid on behalf of the Consignor.
b. The Auction Date printed on the Catalog cover is the last day that bids are accepted through any means, EXCEPT for those bidding through EarlyAmerican, Invaluable or LiveAuctioneers who are permitted to continue bidding until each Lot is closed on the day following.
c. The Auctioneer, at his sole and exclusive discretion, may accept or decline a given Bid, and/or challenge any Bid or any increment thereof.
d. Bids below the Low Estimate, which includes any requested increase(s), will not be reduced.
e. Bids below fifty percent (50%) of Low Estimate are considered frivolous and will not be accepted.
f. In the event of a tie, the Lot will be awarded to the bid with the earliest postmark.
g. All Bid(s) must be for an entire Lot; it being understood that each Lot constitutes a separate sale.
h. No Lot will be broken up unless otherwise permitted by the Auctioneer, and Lot(s) will be sold in their numbered sequence unless the Auctioneer directs otherwise.
i. All Merchandise shall be sold in separate Lot(s) to the highest Bidder as determined by the Auctioneer in his sole and exclusive discretion.
j. If a Lot is awarded to the wrong Bidder due to an administrative error, the highest Bidder will prevail. All Bidders agree to post-Auction corrections without protest or negative feedback.
k. The Auctioneer shall have the right, at his sole and exclusive discretion, to adjudicate all bidding disputes and shall have the right, to rescind the acceptance of any Bid and/or place a given Lot(s) for re-Auction.
l. The Auctioneer's decision on all Bid disputes shall be deemed to be binding and final.
m. If there should be any Material Error in descriptions contained in the Catalog creating a Significant difference from the value paid, a given Lot may be returned by a successful Bidder for Review, but only if prompt written notice is first received by EAHA not later than seventy-two (72) hours of receipt of the Lot(s) by the Bidder; it being understood that any such Lot(s) must be received by EAHA no later than fourteen (14) calendar days after the Auction Date and be in the same condition, in their original, sealed Holders, as when the Lot(s) were first delivered to the Bidder; it being further understood that late remittance(s) constitute just cause by EAHA to revoke any return privilege(s) otherwise available.
n. Any Lot returned for Review will be at the sole expense of the Buyer, as well as the return expense should the claim be rejected.
o. EAHA shall not be responsible for any errors in the bidding process, and the Bidder assumes full responsibility to ensure the Bid on a given Lot is correct. Bidders using the Internet acknowledge that due to the bidding process and speed of auctioneer it is possible to be awarded a lot in error. Instances of "awarding" a lot due to missing a bid or some other error may cause an Internet bidder to have their winning bid rescinded by the auctioneer. In such instance, the Internet bidder will be notified of the error and agrees that no further protest, or negative feedback will result on their behalf.
p. The Auctioneer shall timely announce the Hammer Price for each Lot sold at the Auction.
q. EAHA reserves the right to withdraw any Lot(s) prior to the Hammer Price being accepted by the Auctioneer.
r. No Bidder shall have a right to claim any special or consequential damages from EAHA for any reason whatsoever.
3. Bidder Registration Required.
All Bidder(s) in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. It/he/she duly registered to Bid at the Auction having fully completed and transmitted to EAHA the necessary Auction Bid form(s).
b. The invoice describing a given Lot by number shall include the Merchandise described in the Catalog by the Cataloguer.
4. Prices, Payment and Delivery.
All Bidder(s) in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. All payment(s) for Merchandise shall be made by check, money order, cashier's check, bank wire, credit card or in cash (U.S. currency only); Bidder(s) who have not established credit with EAHA must first furnish satisfactory credit references to EAHA and/or deposit at least twenty-five percent (25%) of their total Bid(s) for that Auction, or such other amount(s) as EAHA may, in its sole and absolute discretion, require before such Bid(s) will be accepted; it being understood that deposit(s) submitted will be applied to purchases and any remaining deposit(s) will be refunded upon clearance of funds.
b. A two percent (2%) Purchaser's Premium Discount will be granted on purchases paid by cash, check or money order.
c. California Sales Tax of 7.50% will be added to California residents; San Diego County residents add 7.75%.
d. Payment shall be due immediately upon receipt of notification and payment is deemed delinquent, and in default if not made in good funds in full within fourteen (14) days of the Auction Date.
e. On cash transaction(s) exceeding Ten Thousand Dollars ($10,000), a Treasury Form 8300 must be filed.
f. Lot(s) will not be shipped before all funds are fully received by EAHA.
g. EAHA reserves the right to extend credit and impose periodic charges on any accounts past due.
h. The Bidder agrees to report to EAHA any damage or breakage that occurs to Merchandise in the original Holder and packaging during shipment within 3 days of receipt of package. The original packaging MUST be saved, complete and intact, as required by the insuring company. Failure to meet either of these requirements will release EAHA of any further liability or payment for such damages.
i. Successful Bidder(s) agree to pay reasonable attorney's fees and costs incurred by EAHA to collect on any past due account(s).
j. Bid(s) will not be accepted from any individual(s) under the age of eighteen (18) years old without a parent or guardian's written consent and express acceptance of these General Terms and Conditions.
k. If a corporation is the Bidder, the authorized corporate representative must provide EAHA, at the time of registration, with proof in the form of a legal document acceptable to EAHA confirming the representative's express authority to Bid in the Auction for and on behalf of the corporation.
l. A shipping and handling charge will be added to each invoice to adequately package, ship and fully insure Merchandise. Bidder may request that EAHA increase the insured value of the purchased Merchandise above the successful Bid price for the Merchandise purchased at Auction by making a special arrangements in writing with EAHA, prior to shipment.
m. All Auction Lot Holders are for short term use and should be changed by the new buyer for proper long term storage.
5. Financial Responsibility.
All Bidder(s) in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. In the event a successful Bidder fails to make payment when due, EAHA reserves the right, in its sole and exclusive discretion, to rescind the sale or to resell the Lot(s) in a commercially reasonable manner (which may include a public or private sale); it being understood that the Bidder agrees to pay for the reasonable cost of such a sale, together with any incidental costs of sale, attorney's fees and costs, costs of the Cataloguer and any other reasonable charge(s).
b. EAHA shall have the right to offset any sums due to EAHA, and to make such offset(s) from any past, current, or future consignment(s), or purchase(s) that are in the possession or control of EAHA.
c. EAHA shall automatically have a security interest to secure any indebtedness due by a successful Bidder(s); it being understood that the Bidder consents to granting EAHA the right to file a Uniform Commercial Code "Financing Statement" to secure EAHA's financial interest.
d. If a given invoice submitted to the successful Bidder by EAHA is not paid for in full when due per the invoice terms, the unpaid balance shall accrue penalty interest at the rate of one-and-one-half percent (1-1/2%) per month until fully paid; it being understood that in such event the penalty interest rate shall exceed the interest permitted by law.
e. Bidder agrees to pay all reasonable attorney's fees, court costs and collection costs incurred by EAHA in attempting to collect past due invoice(s).
f. If the successful Bidder for a given Lot(s) consists of one or more person(s) or entit(ies), each shall be jointly and severally liable to EAHA for any payment(s) due for Merchandise purchased.
6. Guarantees of Authenticity.
Unless otherwise indicated in the Catalog, the Merchandise offered for sale at the Auction shall be guaranteed by EAHA to be authentic as described in the Catalog, and upon information and belief, is in full compliance with California Assembly Bill 1570; it being understood that SUCH GUARANTEE SHALL BE VALID FOR A PERIOD OF THIRTY (30) CALENDAR DAYS ONLY FOLLOWING the Auction Date; it being further understood that after thirty (30) calendar days, no purchased Merchandise can be returned by a successful Bidder(s) under any circumstances; it being further understood that this limited guarantee is extended only to the original Purchaser of record, and to be effective requires the timely presentation of the original sales invoice as well as verification that the item of Merchandise is in the same exact condition as when originally sold. Due to their unique handmade manufacture, Encased Postage Stamps are expressly subject to a thirty (30) day inspection and return period from the sale date after which there is no return whatsoever. After thirty (30) calendar days, should any claim regarding authenticity of the Merchandise arise, at the sole discretion of EAHA, EAHA may elect to assign any rights it has against the original Consignor it may hold. It being understood and agreed that such an assignment, if granted by EAHA, shall not be considered an obligation and EAHA and any of its employees or officers shall be completely removed from any further involvement or responsibility.
7. Descriptions and Grading.
a. Bidder(s) acknowledge that all gradings of coin and/or currency Merchandise sold in the Auction have been determined by independent grading services, and/or by EAHA; it being understood that the successful Bidder(s) acknowledge that the grading of rare coin(s), currency and other merchandise is subjective and accordingly may differ among independent grading services and among expert numismatists, and that such grading may have a material effect on the ultimate Auction value of the Merchandise.
b. EAHA shall not be responsible for the grade(s), claims, or statement assigned by independent grading services, and makes no warranty or representation regarding such grade(s) or statements whether an item is pre-certified or not (sold raw). All third party graded lots are sold "AS IS" and are not returnable.
c. Lot description(s) are based solely upon an examination of the coin(s), and are not intended to describe in detail any perceived special characteristics; it being understood that Bidder(s) acknowledge that coin grading and perception(s) are inherently subjective.
d. EAHA does not warrant the accuracy of the description(s) and the photograph(s) and the color of photograph(s) contained in the Catalog, and that the Bidder acknowledges and agrees that the actual Merchandise offered for sale may vary in size and/or scale and/or color from any photograph(s) and/or description of the Lot in the Catalog.
e. There can be no claim that any verbal description of the Merchandise, provided by EAHA or any employee, varies and/or alters the description contained in the Catalog.
f. Conservation and restoration or simply "Conservation" will be used as an active generic term to indicate professional level, quality methods having been employed to an item at some point, the exact degree and specifics will be indicated as possible. NO ITEM, having mention of CONSERVATION will be returnable for ANY reason, 30 DAYS past the date of auction, REGARDLESS OF ANY NEGATIVE COMMENTS, OF ANY TYPE, SUGGESTED BY THIRD PARTY GRADING SERVICES OR OTHERS.
g. There can be no claim regarding any item subsequently submitted to any certification service, including any non-certified (Raw) item once the initial inspection and return period has expired.
8. Disclaimer and Warranties.
All Bidders in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS MADE OR IMPLIED ON ANY LOT IN THE CATALOG, AND NO WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO ANY LOT EXCEPT FOR A WARRANTY OF TITLE; IT BEING UNDERSTOOD THAT ALL LOTS OFFERED FOR SALE ARE SOLD ON AN "AS IS" BASIS AND THAT THE PURCHASER CONSEQUENTLY ASSUMES ALL RISKS CONCERNING AND RELATED TO THE GRADING, QUALITY, DESCRIPTION, CONDITION, AUTHENTICITY, AND PROVENANCE OF A GIVEN LOT. NEITHER EAHA NOR THE CONSIGNOR MAKES ANY REPRESENTATION THAT THE PURCHASER OF MANUSCRIPT MATERIAL, PHOTOGRAPHS, PRINTS, OR WORKS OF ART WILL ACQUIRE ANY COPYRIGHT OR REPRODUCTION RIGHTS THERETO."
9. Waiver and Release.
All Bidders in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
BIDDER EXPRESSLY WAIVES AND RELEASES, AND FOREVER DISCHARGES EAHA FROM ANY AND ALL CLAIMS, RIGHTS, DEMANDS AND CAUSE(S) OF ACTIONS AND SUIT(S), OF WHATEVER KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, CLAIM(S) BASED UPON AUCTIONEER'S NEGLIGENCE, WHETHER IN LAW OR EQUITY OR WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHICH BIDDER MAY CLAIM TO HAVE WITH RESPECT TO AND/OR ARISING OUT OF, OR IN CONNECTION WITH ANY CHALLENGE TO ANY MERCHANDISE PURCHASED AT THE AUCTION, THE AUCTION PROCEDURES, OR THE PURCHASE OF ANY LOT(S); IT BEING THE INTENTION THAT THIS WAIVER AND RELEASE SHALL BE EFFECTIVE AS A BAR TO EACH AND EVERY CLAIM, DEMAND, CAUSE OF ACTION AND/OR SUIT OR CONTROVERSY THAT MAY ARISE HEREUNDER OR BE RELATED TO THE AUCTION
ALL BIDDER(S) BY SUBMITTING A BID IN ANY FASHION, SIGNED OR UNSIGNED, IN THE AUCTION KNOWINGLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS AND BENEFITS OTHERWISE CONFERRED UPON THE BIDDER BY LAW OR BY THE PROVISION(S) OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS IN FULL AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
10. Disputes and Arbitration.
All Bidders in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. If a dispute arises concerning ownership of a given Lot that has been Bid upon or concerning proceeds of any sale, EAHA reserves the right to commence a statutory Inter-Pleader or similar proceeding at the expense of the Consignor and successful Bidder and any other applicable party, and in such event shall be entitled to its reasonable attorneys' fees and costs.
b. Neither EAHA nor any affiliated or related company shall be responsible for incidental or consequential damages arising out of any failure of these General Terms and Conditions, the Auction or the conduct thereof and in no event shall such liability exceed the original Purchase Price, premium, or fees paid.
c. If the Bidder fails to comply with one or more of these General Terms and Conditions, then, in addition to all other remedies which it may have at law or in equity, EAHA may at its sole option either rescind the sale, retaining all payments made by Bidder as liquidated damages; it being recognized that actual damages may be speculative or difficult to compute, or sell a portion or all of the Lot(s) held by EAHA, in a quantity sufficient in the opinion of EAHA to satisfy the indebtedness, plus all accrued charges, and EAHA may sell such portion at an Auction or private sale conducted by EAHA and charge a seller's commission that is commercially reasonable. More than one such sale may take place at the option of EAHA. Notice of the sale shall be by U.S.P.S. Mail, Return Receipt Requested to the address utilized on the Bid Sheet, Auction Consignment and Security Agreement or other last known address by EAHA. The proceeds shall be applied first to the satisfaction of any damages occasioned by Bidder's breach, then to any other indebtedness owed to EAHA, including without limitation, commissions, handling charges, the expenses of both sales, reasonable attorneys' fees, costs, collection agency fees and costs and any other costs or expenses incurred.
d. It/he/she shall be liable to EAHA if the proceeds of such sale(s) insufficient to cover the indebtedness.
e. The rights granted to the Bidder(s) under the within General Terms and Conditions are personal and apply only to the Bidder(s) who initially purchase the Lot(s) at the Auction, and no rights may be assigned or transferred to any other person or entity, and any attempt to assign or transfer any such rights shall be absolutely void and unenforceable.
f. ANY DISPUTE ARISING OUT OF OR RELATED TO THESE GENERAL TERMS AND CONDITIONS, THE AUCTION OR ANY LOT, WITH THE SOLE EXCEPTION OF ACTIONS BY EAHA TO COLLECT THE PURCHASE PRICE AND OTHER DAMAGES, SHALL BE SUBMITTED TO BINDING ARBITRATION WITH THE VENUE OF ALL HEARINGS TO BE IN SAN DIEGO AND PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND/OR THE PROFESSIONAL NUMISMATICS GUILD ("PNG") AT"EAHA'S EXCLUSIVE OPTION.
11. Miscellaneous Terms.
All Bidders in the Auction acknowledge and agree, as a condition to the acceptance of a Bid by the Auctioneer, that:
a. These General Terms and Conditions and the Auction shall be construed and enforced in accordance with and governed by the laws of the State of California, regardless of the location of the Auction.
b. These General Terms and Conditions, and the information on EAHA's website, constitute the entire Agreement between EAHA and the Bidder(s) and supersede all other agreements, understandings, warranties and representations of and concerning the Auction and subject matter hereof.
c. EAHA will not be responsible for damage due to irradiation by the U.S. Post Office.
d. If any part of these General Terms and Conditions, or any term or provision of any part is held to be invalid, void, or unenforceable by any court of competent jurisdiction, the remaining portion(s) shall remain and be in full force and effect.
12. Definitions
a. The term "Absentee Bid" shall mean all Bids placed via any communication including: mail, phone, fax, email and website.
b. The term "Auction" shall mean an auction or consignment sale authorized and conducted under the auspices of "EAHA" and under these General Terms and Conditions.
c. The term "Auction Date" shall mean the date the Auction is conducted or consignment item is sold.
d. The term "Auctioneer" shall mean an individual(s) duly licensed and/or employee designated by "EAHA" to conduct the Auction or any Sale.
e. The term "Bid" shall mean a bona fide Bid made by a "Bidder" which is officially acknowledged and accepted by the Auctioneer at the Auction on the Auction Date.
f. The term "Bidder" shall mean an individual or entity that submits a legally binding and bona fide Bid to the Auctioneer at the Auction or any direct buyer either physical or online.
g. The term "Catalog" shall mean the official publication issued by EAHA and transmitted to potential Bidder(s) in advance of the Auction.
h. The term "Cataloguer" shall mean the individual(s) that has described the "Lot(s)" contained in the Catalog for the Auction.
i. "Conservation" the Professional activities including the careful examination as supported by expertise, research and education, in treatment of an item using, "any methods that prove effective in keeping or bringing that property in as close to its original condition as possible, for as long as possible."
j. The term "Consignment Agreement" shall mean the written agreement(s) between "EAHA" and a given "Consignor" available at "EAHA's" offices.
k. The term "Consignor" shall mean the owner of the "Merchandise" offered for sale by "Lot" at the Auction.
l. The term "Description" shall mean the written remarks describing the features of a Lot combined with the corresponding photograph of said Lot.
m. The term "EarlyAmerican;s website." shall mean the Internet accessible service provided by EAHA.
n. The term "EAHA" shall mean collectively Early American History Auctions, Inc. and/or any subsidiary or affiliated entity and/or Officer(s), Director(s) and/or employee(s) of EAHA.
o. The term "Fair Market Value" shall mean the sale price a given Lot is expected by the Cataloguer to realize at the Auction from the Bidder(s).
p. The term "Hammer Price" shall mean the successful Bid in the Auction as determined by the Auctioneer on the Auction Date.
q. The term "Holder" shall mean the original frame, container, case or clear plastic sleeve, labeled with the "Lot" number, in which the "Merchandise" is delivered by the Consignor to the successful Bidder at an Auction.
r. The term "Lot(s)" shall mean the article(s) comprising the Merchandise offered for sale at the Auction.
s. The term "Low Estimate" shall mean the low range of the sale price that a Lot is expected by the Cataloguer to realize at the Auction.
t. The term "Merchandise" shall mean personal property described in the Catalog and offered for sale by Lot at the Auction.
u. The term "Purchaser" shall mean the successful Bidder at the Auction on the Auction Date.
v. The term "Purchaser's Premium" shall mean the commission that is automatically charged by "EAHA" to each successful Bidder at the Auction in a sum equal to twenty percent (20%) of the "Hammer Price" or twenty-five percent (25%) of the "Hammer Price" if bids are placed through a third party firm including Invaluable, LiveAuctioneers and iCollector.
w. The term "Reserve" is a confidential price below which the Auctioneer will not sell a given Lot, and/or will re-purchase on behalf of the Consignor or EAHA.
x. The term "Settlement Date" shall mean a time forty-five (45) days after the Auction Date.