The Newfoundland
176 U.S. 97 (1900)

Annotate this Case

U.S. Supreme Court

The Newfoundland, 176 U.S. 97 (1900)

The Newfoundland

No. 156

Argued November 3, 6, 1899

Decided January 15, 1900

176 U.S. 97

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF SOUTH CAROLINA

Syllabus

The question in this case is as to the adequacy of the proof offered on behalf of the government and the captors to show that the Newfoundland was trying to violate the blockade of Havana, and the court is of opinion that it does not attain to that degree which affords a reasonable assurance of the justice of the sentence of forfeiture in the court below -- that it raises doubts and suspicions and makes probable cause for the capture of the ship and justification of her captors, but not forfeiture.

Page 176 U. S. 98

The case is stated in the opinion of the Court.

MR. JUSTICE McKENNA delivered the opinion of the Court.

The Newfoundland, a British steamship, was seized off the coast of Cuba on 19th July, 1898, by the United States ship of war Mayflower, on the ground that she was trying to violate the blockade of Havana. She was sent to Charleston, South Carolina, and there libeled with her cargo as prize of war. Testimony was taken in preparatorio, and the court determined it to be insufficient for condemnation, and on motion of the attorney for the United States ordered further proof.

Upon that proof, a decree was entered condemning and forfeiting the ship and cargo, and they were ordered to be sold. From the decree, this appeal is prosecuted. The assignments of error may be reduced to two contentions:

1. That the court erred in making an order for further proof because the testimony taken in preparatiorio afforded no legal foundation for doubt, or proof of any overt act to justify the condemnation of the ship.

2. That the additional testimony taken still left the evidence insufficient for condemnation.

(1) Of the testimony taken in preparatorio, the court said:

"Taking the testimony which alone is now before the court, there is nothing in it which shows or tends to show that the Newfoundland, at the time of capture or at any other time, was heading for the port of Havana or any other port."

And, further:

"So far as its examination has extended, no case has been found where a sentence of condemnation was passed upon such a state of facts as is presented in this record. How far

Page 176 U. S. 99

short the cases cited fall in showing cause for condemnation the circumstances hereinabove recited demonstrate. These circumstances do no more than create a suspicion that there was an intention to enter a Cuban port in violation of the blockade; but suspicion, however well founded, is not proof, and cannot be accepted in any court in place of evidence."

"There must be some overt act denoting an attempt to do the thing forbidden, some fact in addition to the proved intention to commit the infraction, which shows that the unlawful intent is persisted in and is being carried into execution."

"As this Court has in a recent case had occasion to remark, the testimony in preparatorio rarely affords opportunity for such proof. From the master's testimony it appears that Commander Mackenzie informed him that he had information, through a letter from the American consul at Halifax, that the Newfoundland sailed with intention to run the blockade. The court can form no opinion as to the probable weight of such testimony. It also appears that Commander Mackenzie thought the movements and conduct of the Newfoundland on the night of the capture suspicious. The court has personal acquaintance with Commander Mackenzie, and knows that in character, intelligence, and attainments, he is the peer of any officer of the navy; but, highly as it values his opinion, it cannot accept it in lieu of proof; it furnishes ground for ordering further evidence."

It is urged by counsel for appellants that the court therefore based its order for further proof upon Commander Mackenzie's opinion, which, even if otherwise competent, was not in evidence. We, however, do not so interpret the remarks of the court. It is explicitly stated that the circumstances created a suspicion of an intention on the part of the ship to enter a Cuban port, but that the suspicion was insufficient for condemnation without some proof in addition showing an overt act, which, as testimony in preparatorio rarely afforded, further proof was ordered.

This was not an abuse of discretion, and is clearly within the ruling of The Sir William Peel, 5 Wall. 534. In that case, the Court said the preparatory proof, which consisted

Page 176 U. S. 100

of the depositions of the master of the ship, the mate, and one seaman, "clearly required restitution" of the ship, and, declaring the rule, said, through Chief Justice Chase, that

"regularly in cases of prize, no evidence is admissible on the first hearing, except that which comes from the ship, either in the papers or the testimony of persons found on board."

"If upon this evidence the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or upon motion and proper grounds shown, to introduce additional evidence under an order for further proof."

(2) For a statement of the case, we may quote from the opinions of the district court. They clearly marshal and review all inculpating and exculpating circumstances, and give the impressions of the court of the character of witnesses the most important of whom testified in its presence. From the first opinion rendered on the testimony taken in preparatorio, as follows: The Newfoundland

"cleared from Halifax, Nova Scotia, July 8, 1898, for Kingston, Jamaica, and Vera Cruz, Mexico. She carried a cargo of flour, pork, corn, wheat, and canned goods shipped by David Robertson & Co. Bills of lading were issued to them for 4,386 packages for Kingston, and 3,747 for Vera Cruz. These bills of lading are indorsed by them in blank. The charter party was for a voyage of three months to ports of the United States, West Indies, Central and South America, etc., in the customary printed form, and written therein was, 'including open Cuban ports, no contraband of war to be shipped,' and was to terminate at Halifax. Musgrave & Co. were the charterers."

"It appears from the master's testimony that he was instructed by the charterers to follow the directions of the shippers of the cargo, and he received from Robertson & Co., through the former captain, verbal instructions to clear for Kingston and Vera Cruz, and to proceed with all haste to the north coast of Cuba, and to enter either the port of Sagua la Grande or Caibairien, but on no account to enter any

Page 176 U. S. 101

blockaded port; and, if he found the ports of Sagua and Caibairien blockaded, to proceed to Kingston and wire for instructions. It seems clear from this testimony that it was the intention of the shippers that the cargo was to be landed at Sagua or Caibairien, where the master was instructed that he would be met by pilots, and that Kingston and Vera Cruz were 'contingent' or provisional destinations. Neither Sagua nor Caibairien were included among the Cuban ports in either of the President's proclamations notifying a blockade."

"The Newfoundland sailed from Halifax on July 9. Her speed is about eight knots; her registered tonnage, 567 tons. She steered for the 'Crooked Inland Passage' in the Bahamas, passing thence into the 'Old Bahama Channel,' and, going in the direction of Sagua and Caibairien, she reached a point northwestwardly from Neuvitas, on the north coast of Cuba, where she was stopped by the United States ship of war Badger at 12:45 A.M., on Monday, July 18th. Her papers were examined by the boarding officer, who informed the master that the whole Island of Cuba was blockaded, and was allowed to proceed upon her course."

"The Island of Jamaica lies almost due south from Nuevitas, which, being about two hundred miles from the eastern end of the Island of Cuba, it is contended that the Newfoundland should at that point have changed her course, and proceeded eastward around Cape Maysi, and thence to Kingston. This undoubtedly would have been the shortest course, and, if Kingston was the destination, the sailing westward from Naevitas would have carried the ship many hundreds of miles out of her course. It may be here observed that, on the log book kept by the mate the line at the head of each page up to and including Monday, 18th July, is, 'Journal from Halifax, N.S., towards Kingston and Vera Cruz.' On Tuesday, 19th July, the head line is, 'Journal from Halifax, N.S., towards Vera Cruz and Kingston.' If, after reaching Nuevitas, there was an intention to go to Vera Cruz, the westwardly course would be the most direct."

From the second opinion on final hearing, as follows:

"Lieutenant Evans, in command of the U.S.S. Tecumseh,

Page 176 U. S. 102

testifies that about 5 o'clock in the afternoon of July 19th, while on his station in the blockading squadron, six or eight miles to the north and eastward of Havana light, and about three and one-half miles from the nearest shore, he sighted the Newfoundland moving towards him on a westerly course; that he immediately stood towards her at full speed -- about 10 knots -- and overhauled her, sending his mate aboard to examine her papers. He estimates his position at the time as being latitude 23

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