Naval War College (U.S.).

International law. Recent Supreme Court decisions and other opinions and precedents online

. (page 6 of 22)
Online LibraryNaval War College (U.S.)International law. Recent Supreme Court decisions and other opinions and precedents → online text (page 6 of 22)
Font size
QR-code for this ebook

point, and that the letters would be returned to St. Thomas,
and that having received his clearance papers at Puerto
Plata at half-past five o'clock on the evening of July 15,
he did not leave until six o'clock in the morning of July
16, as he did not w T ish to find himself at night along the
cost of Porto Rico.

The ship was a large and valuable one, belonging to a
great steamship company of world-wide reputation; she
was on her return voyage laden with tobacco, sugar, coffee
and other products of that region; she had no cargo, pas-
sengers or mail for San Juan; she had arrived off that port
in broad daylight, intentionally according to the captain;
her regular itinerary on her return to France would have
taken her from Port au Platte to San Juan, and from San
Juan to St. Thomas, and thence to Havre, but as San Juan
was blockaded and she had been warned off, and could not
lawful!} 7 stop there, her route was from Port au Platte to
St. Thomas, which led her directly by and not many miles
from the port of San Juan.

The only possible motive which could be or is assigned
for her to attempt to break the blockade is that the con-
signee at San Juan cabled the captain at Cape Haytien that
he must stop at San Juan and take fifty first class passen-
gers. At this time the fleet of Admiral Cervera had been
destroyed; Santiago had fallen; and the long reign of
Spain in the Antilles was drawing to an end. Doubtless the
transportation of fifty first class passengers would prove
remunerative, especially us some of them might be Spanish
officials, and Spanish archives and records, and Spanish
treasure, might accompany them if they escaped on the

ship. It is forcibly argued that these are reasonable Existence of

' . . motive insuf-

mferences, and afforded a sufficient motive for the com- ficient without

11.- evidence of in-

rnission of the offense. But as, where the guilty intent is tent.
established, the lack of motive cannot in itself overthrow
it, so the presence of motive is not in itself sufficient to
supply the lack of evidence of intent. Now, in this case,
the captain not only testified that he answered the cable to
the effect that he should not stop at San Juan, but the
purser explicitly stated that the agent at Cape Haytien
sent the telegram for the captain, specifically notifying
the agent at San Juan that the ship would not stop there,
the blockade having been notified. It is true that the
cablegram was not produced, but this was not to be
expected in taking the depositions in preparatories and
particularly as it was not the captain's own cablegram, but
that of the agent at Cape Haytien. There is nothing in
the evidence to the contrary, and under the liberalit}^ of
the rules of evidence in the administration of the civil law,
we must take this as we find it, and, as it stands, the argu-
ment that a temptation was held out is answered by the
evidence that it was resisted.

Such being the situation, and the evidence of the ship's
officers being explicit that the vessel was on her way to
St. Thomas and had no intention of running into San
Juan, the decree in her favor must be affirmed on the
merits, unless the record elsewhere furnishes evidence
sufficient to overcome the conclusion reasonably deducible
from the facts above stated.

Among the papers delivered to the prize master were
certain bills of health, five of them by consuls of France,
namely, July 9. from St. Marc, Haiti, giving the ship's
destination as Havre, with intermediate ports; July 11,
from Gonaives, Haiti, giving no destination; July 13,
from Port au Prince, July 14, from Cape Haytien, July
15, from Puerto Plata, all naming Havre as the destina-
tion; and three by consuls of Denmark, July 13 from '
Port au Prince, July 14 from Cape Haytien, and July 15
from Puerto Plata, all naming St. Thomas as the destina-
tion. When the captain testified August 2, in answer to
the standing interrogatories, he said nothing about any
Spanish bills of health. The deposition was reread to
captain, August 3 and on the next day, August 4,
wrote to the prize commissioners desiring to correct it,
saying 'M fear I have badly interpreted several questions.
I was asked if 1 had destroyed any papers on board or

e r *;


passports. I replied, no. The papers documents on
board for our voyage had been delivered up proper and
legal to the prize master. This is absolutely the truth,
not including in the documents two Spanish bills of health,
one from Port an Prince and one from Cap? Haytien,
which we found in opening our papers, although they had
not been demanded. Not having an}- value for us, I said
to the steward to destroy them on our arrival at Charles-
ton, as we often do with papers that are useless to us.
The regular expedition only counts from the last port,
which was Puerto Plata, and I refused to take it from our
agent for Porto Rico. I swear that at ni}' examination 1
did not think of this, and it is only on my return from
signing that the steward recalled it to me. I never sought
to disguise the truth, since I wish to advise you. of it as
soon as possible.'"

the ei urser 0n f ^ n tne ^h. of August the purser answered the inter-
rogatories, and testified that papers were given him b}^ the
consignees of the steamer at Port au Prince in a box at the
time of sailing, and he found in the* box one manifest of
freight in ballast, and it was the same thing at Cape Ilay-
tien. At Puerto Plata the agent of the company came on
board on their arrival there, and "the captain told him
that there was no Spanish clearance; there was no need of
it, and it was not taken." The captain said to the agent
"it was not necessary, because we are not going to San
Juan, being notified of the blockade." "When we arrive
in a port we put up a placard of the date of departure and
the time of sailing and the destination, and it was put up
by my personal order from the captain that we sailed for
St. Thomas directly, and it was fixed up in the night of
the 15th of July. . . . We were to start on the morn-
ing of the 16th, at 6 o'clock in the morning, the captain
saying he did not want to fall into the hands of the Amer-
ican cruisers during the night. The night before our
arrival in Charleston, the doctor says to me, 'I have a bill
of health, Spanish account, from Cape Haytien and Port
au Prince,' and I told him I would speak to the captain
and ask him what to do with these papers that I had
found in assorting my papers these papers in the pigeon
holes. I told the captain that morning, and he told me
that we had better destroy them, because we don't want
them; that it is not our expedition, and that a true expo-
sition is valuable only for the last port to the Spanish

On the 5th the captain was permitted to testify, in Testimony of

. . * . . the captain as to

explanation, saving, among other things: Ine reason missing papers.

that we did not give up the two bills of health is because

the}' did not form a part of the clearance of our ship for

our itinerary, and they were left in the pigeon holes

where they were. It was at the time of our arrival at

the quarantine at Charleston that the purser spoke to me

of them, and I told him that they were good for nothing

and to tear them up. The captain wishes to add that he

did not remember the instance the other day about the

destruction of the papers, that he has just told us about,

and that he never had any intention to disguise anything

or to deceive."

Counsel for the Government insist that the intention of
the Olinde to run the blockade is necessarily to be inferred
from the possession of these bills of health and their
alleged concealment and destruction. Doubtless the spo-
liation of papers, and. though to a less degree, their con-
cealment, is theoretical!}' a serious offense, and authorizes
the presumption of an intention to suppress incriminating ,
evidence though this is not an irrebutable presumption.

In The Pizarro, 2 Wheat. 227, 2-41, the rule is thus stated
by Mr. Justice Story: "Concealment, or even spoliation
of papers is not of itself a sufficient ground for condemna-
tion in a prize court. It is, undoubtedly, a very awaken- ment of papers
ing circumstance, calculated to excite the vigilance, and
to justify the suspicions of the court. But it is a circum-
stance open to explanation, for it may have arisen from
accident, necessity or superior force; and if the party in
the first instance fairly and frankly explains it to the sat-
isfaction of the court, it deprives him of no Tight to which
'he is otherwise entitled. If, on the other hand, the spolia-
tion be unexplained, or the explanation appear weak and
futile; if the cause labor under heavy suspicions, or there
be a vehement presumption of bad faith, or gross prevari-
cation, it is made the ground of a denial of farther proof,
and condemnation ensues from defects in the evidence
which the party is not permitted to supply. "

It should be remembered that the first deposition of the
captain was given in answer to standing interrogatories,
and not under an oral examination; that the statute (R. S.
4622) forbade the witness "to see the interrogatories,
documents, or papers, or to consult counsel, or with an}'
persons interested, without special authority from the
court;'' that he was born and had always lived in France.


and was apparent!}' not conversant with our language;
indeed, he protested, as "neither understanding nor speak-
ing English," "against all interpretation or translation
contrary to my thought;" that the deposition having been
reread to him the day after it was taken, he detected its
want of fullness, and immediately wrote the prize commis-
sioners on the subject with a view to correction; and that
it was after this, and not before, that the purser testified.
Transactions of this sort constitute in themselves no
con damnation' ground for condemnation, but are evidence, more or less
the existence of convincing, of the existence of such ground; yet, taking
the evidence in this case together, we are not prepared to
hold that the explanation as to how these bills came
received on board, neglected when the papers were sur-
rendered, and finalh' torn up, was not sufficient to obviate
any decisive inference of objectionable intention.

The Government further insisted that the Olinde Rod-
rigues refused to obey the signal from the New Orleans
to heave to and stop instantly, and turned only after she
had fired, and that this conclusively established an inten-
tion to A'iolate the blockade. The theory of the Govern-
ment is that the French ship purposely held on so as to
get under the protection of the batteries of San Juan.

It is impossible to deny that the testimony of Captain
Folger, the commander of the New Orleans, and of his
officers, was extremely strong and persuasive to establish
that the Olinde Rodrigues when brought to, was inten-
tionally heading for San Juan, and pursuing her course in
such a manner as to draw the blockading cruiser in range
of the enemies' batteries, and yet we must consider it in
view of the evidence on behalf of the captured ship, and
of the undisputed facts tending to render it improbable
that any design of attempting to violate the blockade was
entertained. The Olinde Rodrigues had neither passen-
gers nor cargo for San Juan; in committing the offense,
she would take the risk of capture or of being shut up in
that port; she was a merchantman engaged in her regular
business and carrying the mails; she was owned by a widely-
known and reputable company; her regular course, though
interrupted by the blockade of that port, led directh 7 by
it, and not far from it; and the testimony of her captain
and officers denied am r intention to commit a breach.

The evidence of evil intent must be clear and convinc-
ing before a merchant ship belonging to citizens of a


friendly nation will be condemned. And on a careful
review of the entire evidence, we think we are not com-
pelled to proceed to that extremity.

But, on the other hand, we are bound to say that, taking-
all the circumstances together and giving due weight to
the evidence on behalf of the captors, probable cause for
making the capture undoubtedly existed; and the case dis-
closed does not commend this vessel to the favorable con
sideration of the court.

Probable cause exists where there are circumstances f
sufficient to warrant suspicion though it may turn out^ n e c " s
that the facts are not sufficient to warrant condemnation. SU8 P lclon -
And whether they are or not cannot be determined unless
the customary proceedings of prize are instituted and
enforced. . . .


. . . This vessel had gone into San Juan on July 4, Rt5sumt5 -
although the captain had heard of the blockade at St.
Thomas, but he says he had not been officially notified of
it; he telegraphed to the consul at San Juan to know, and
was answered that the}' had received no official notice from
Washington that the port was blockaded; he also heard
while in San Juan that "it would be blockaded some future
time, but that was not official!} 7 ." The vessel was boarded
and warned lay the Yosemite on July 5, and the warning
entered on her log. This imposed upon her the duty to
avoid approaching San Juan, on her return, so nearly as
to give just cause of suspicion, yet she so shaped her
course as inevitably to invite it.

When the New Orleans succeeded the Yosemite her
commander was informed of the facts by his predecessor,
and knew that whatever the right of the Olinde Rodrigues
to be in those waters, she could not lawfully place herself
so near the interdicted port as to be able to break the
blockade with impunity. But when he sighted her the
ship was on a course to allappearance directly into that
port, and steadily pursuing it. And when he signaled,
the Olinde Rodrigues apparently did not obe} T , but seem-
ingly persisted on her course, and that course would in a
few moments have placed her within the range of the guns
of Morro and of the shore batteries. In fact, when the
shot was fired she was within the range of the Morro's
guns. The evidence is overwhelming that she did not
change her course until after the shot was tired, even
though she may have stopped as soon as she saw the signal.



The turning point into the Culebra or Virgin Passage
was perhaps forty miles to the eastward, and while she
could have passed the port of San Juan on the course she
was on, it would have been within a very short distance.
The disregard of her duty to shun the port and not ap-
proach it was so flagrant that the intention to break the
blockade was to be presumed though we do not hold that
that was a presumption de jure.

The ship's log was not produced until three hours after
she was boarded, and it now appears that the papers fur-
nished the boarding officer, "said to be all the ship's
papers," did not include two Spanish bills of health in
which San Juan was entered as the vessel's destination.
These were destroyed after the ship reached Charleston,
and were, therefore, in the ship's possession when the
other papers were delivered. Had they been shown, as
they should have been, can it be denied that they would
have furnished strong corroboration of criminal intent?
Or that their destruction tended to make a case of " strong
and vehement suspicion ? "

judgment. The entire record considered, we are of the opinion that

restitution of the Olinde Rodrigues should be awarded,
without damages, and that payment of the costs and
expenses incident to her custody and preservation, and of
all costs in the cause except the fees of counsel, should be
imposed upon the ship.

The decree of the District Court will be so modified, and

As modified affirmed.

MR. JUSTICE McKENNA dissented on the ground that
the evidence justified condemnation.


[Vol. 175, United States Reports, p. 354. Decided December 11, 1899. Mr. CHIEF
JUSTICK FULLER delivered the opinion of the court.]

statement of This was an appeal from a decree of the District Court
of the United States for the Southern District of Florida
condemning the steamer Pedro as lawful prize of war on
a libel filed April 23, 1898.

April 20, 1898, the President approved the following

April' 2o ap i898 ved "^ resolution:

"First. That the people of the Island of Cuba are, and
of right ought to be, free and independent


"Second. That it is the duty of the United States to
demand, and the Government of the United States does
hereby demand, that the Government of Spain at once
relinquish its authority and government in the Island of
Cuba and withdraw its land and naval forces from Cuba
and Cuban waters.

"Third. That the President of the United States be,
and he hereby is, directed and empowered to use the
entire land and naval forces of the United States, and to
call into the active service of the United States the militia
of the several States, to such extent as may be necessary
to carry these resolutions into effect.

"Fourth. That the United States hereby disclaims an}-
disposition or intention to exercise sovereignty, jurisdic-
tion or control over said Island except for the pacification
thereof, and asserts its determination, when that is accom-
plished, to leave the government and control of the Island
to its people." 30 Stat. 738.

On the same day, the Minister of Spain to the United
States requested and obtained his passports; the text of C ommu Seated
the resolution was cabled to the Minister of the United 10
States at Madrid; and the Secretary of State by separate
dispatch directed him to communicate the resolution to
the Government of Spain with the formal demand of the
United States therein made, and the notification that,. in
the absence of a response by April 23, the President
would proceed without further notice to use the power
and authority enjoined and conferred upon him.

April 21, the Minister of the United States at Madrid
acknowledged the receipt of the Secretary's dispatch that
morning, but saying that before he had communicated it
he had been notified b}- the Minister of Foreign Affairs of
Spain that diplomatic relations were broken off between b >' s P ain -
the two countries, and that he had accordingly asked for
his passports. The letter from the Minister of Foreign
Affairs of Spain referred to was as follows:

"In compliance with a painful duty I have the honor
to inform Your Excellency that the President having
approved a resolution of both Chambers of the United
States, which in denying the legitimate sovereignty of
Spain and threatening an immediate armed intervention
in Cuba, is equivalent to an evident declaration of war, the
Government of His Majesty has ordered its Minister in
Washington to withdraw without loss of time from the


North American territory, with all the personnel of the
Legation. By this act the diplomatic relations which pre-
viously existed between the two countries an- broken off,
all official communications between their respective repre-
sentatives ceasing, and I hasten to communicate this to
Your Excellency in order that on your part you may
make such dispositions as seern suitable. I beg Your
Excellency to acknowledge the receipt of this note at such
time as } 7 ou deem proper, and I avail myself of this oppor-
tunity to reiterate to you the assurances of my distin-
guished consideration."

nOTth "coast 6 of ^he Secretary of the Navy at once gave instructions to
Cuba ordered, fa e commander in chief of the North Atlantic Squadron
to "immediately institute a blockade of the North coast
of Cuba, extending from Cardenas on the east to Bahia
Honda on the west; also, if in your opinion your force
warrants, the port of Cienfuegos, on the south side of the
island. ... It is believed that this blockade will cut off
Havana almost entirely from receiving supplies from the
outside. . . . The Department does not wish the defences
of Havana to be bombarded or attacked by your squadron."
Blockade insti- April 22, Admiral Sampson, in command, instituted the

tuted and pro- l . .

claimed April 22. blockade and on that day the President issued the follow-
ing proclamation:

'.'Whereas, by a joint resolution passed by the Congress
and approved April 20, 1898, and communicated to the
Government of Spain, it was demanded that said Govern-
ment at once relinquish its authority and government in
the Island of Cuba, and withdraw its land and naval forces
from Cuba and Cuban waters; and the President of the
United States was directed and empowered to use the entire
land and naval forces of the United States, and to call into
the active service of the United States the militia of the
several States to such extent as might be necessary to carry
said resolution into effect; and

"Whereas, in carrying into effect said resolution, the
President of the United States deems it necessary to set
on foot and maintain a blockade of the North coast of Cuba,
including all ports on said coast between Cardenas and
Bahia Honda and the port of Cienfuegos on the South coast
of Cuba:

"Now, therefore, I, William McKinley, President of the
United States, in order to enforce the said resolution, do
hereby declare and proclaim that the United States of
America have instituted, and will maintain a blockade of


the North coast of Cuba, including ports on said coast
between Cardenas and Bahia Honda and the port of Cien-
fuegos on the South coast of Cuba, aforesaid, in pursu-
ance of the laws of the United States and the law of nations
applicable to Mich cases. An efficient force will be posted
so as to prevent the entrance and exit of vessels from the
ports aforesaid. Any neutral vessel approaching any of
said ports, Or attempting to leave the same, without notice
or knowledge of the establishment of such blockade, will
be duly warned by the Commander of the blockading
forces, who will indorse on her register the fact, and the
date, of such warning, where such indorsement was made;
and if the same vessel shall again attempt to enter any
blockaded port, she will be captured and sent to the nearest
convenient port for such proceedings against her and her
cargo as prize, as may be deemed advisable.

; ' Neutral vessels lying in an}^ of said ports at the time
of the establishment of such blockade will be allowed thirty
days to issue therefrom." 30 Stat. 1769.

April 23 the Queen Regent of Spain issued a decree, in
which, among other things, it was stated:

"Article 1. The state of war existing between Spain
and the United States terminates the treaty of peace and
friendship of the 27th October, 1795, the protocol of the
12th January, 1877, and all other agreements, compacts
and conventions that have been in force up to the present
between the two countries.

"Article II. A term of five days from the date of the
publication of the present royal decree in the Madrid
Gazette is allowed to all United States ships anchored in
Spanish ports, during which they are at liberty to depart."

April 25, in response to a message from the President,
Congress passed the following act, which was thereupon
duly and at once approved:

"First. That war be, and the same is hereby, declared
to exist, and that war has existed since the twenty-first
day of April. Anno Domini eighteen hundred and riinety-
eight, including said day, between the United States of
America and the kingdom of Spain.

"Second. That the President of the United States be,
and he hereby is, directed and empowered to use the entire
land and naval forces of the United States, and to call into
the actual service of the United States the militia of the
several States, to such extent as may be necessary to carry
this act into effect." 3<> Stat, ;5r>4.

President's April 26 the President issued a further proclamation,

proclamation of

April 26, 181*, as TO 1 1OWS:

prescribing rules ,/-,, r , -p, ,. ^ -, . ., ,,^

for conduct of ' Whereas, B} T an act of Congress, approved April 2o,
] 898, it is declared that war exists, and that war has existed
since the 21st day of April, A. D. 1898, including said day,
between the United States of America and the Kingdom
of Spain; and

"Whereas, It being desirable that such war should be
conducted upon principles in harmony with the present
views of nations and sanctioned by their recent practice,
it has already been announced that the policy of this
Government will be not to resort to privateering, but to
adhere to the rules of the declaration of Paris:

1 2 3 4 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Online LibraryNaval War College (U.S.)International law. Recent Supreme Court decisions and other opinions and precedents → online text (page 6 of 22)