The BermudaAnnotate this Case
70 U.S. 514 (1865)
U.S. Supreme Court
The Bermuda, 70 U.S. 3 Wall. 514 514 (1865)
70 U.S. (3 Wall.) 514
APPEAL FROM DECREE OF THE DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
1. No trade honestly carried on between neutral ports whether of the same or of different nations can be lawfully interrupted by belligerents; but good faith must preside over such commerce: enemy commerce under neutral disguises has no claim to neutral immunity.
2. Neutrals may establish themselves for the purposes of trade in ports convenient to either belligerent and may sell or transport to either such articles as either may wish to buy subject to risks of capture for violation of blockade or for the conveyance of contraband to belligerent ports.
3. Goods of every description may be conveyed to neutral ports from neutral ports if intended for actual discharge at a neutral port and to be brought into the common stock of merchandise of such port but voyages from neutral ports intended for belligerent ports are not protected in respect to seizure either of ship or cargo by an intention real or pretended to touch at intermediate neutral ports.
4. Neutrals may convey to belligerent ports not under blockade whatever belligerents may desire to take except contraband of war which is
always subject to seizure when being conveyed to a belligerent destination whether the voyage be direct or indirect; such seizure however is restricted to actual contraband and does not extend to the ship or other cargo except in cases of fraud or bad faith on the part of the owners or of the master with the sanction of the owners.
5. Vessels conveying contraband cargo to belligerent ports not under blockade under circumstances of fraud or bad faith or cargo of any description to belligerent ports under blockade are liable to seizure and condemnation from the commencement to the end of the voyage.
6. A voyage from a neutral to a belligerent port is one and the same voyage whether the destination be ulterior or direct and whether with or without the interposition of one or more intermediate ports and whether to be performed by one vessel or several employed in the same transaction and in the accomplishment of the same purpose.
7. Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade and such destination justifies equally seizure of contraband in voyage to ports not under blockade; but in the last case ship and cargo not contraband are free from seizure except in cases of fraud or bad faith.
8. Circumstances such as selection of master control in lading and destination instructions for conduct of voyage and other like acts of ownership by an enemy may repel in the absence of charter party or other explanation presumptions of ownership in a neutral arising from registry or other documents and will warrant condemnation of a ship captured in the employment of enemies as enemy property.
9. Spoliation of papers at the time of capture under instructions and without explanation by production of the instructions or otherwise warrants the most unfavorable inferences as to employment destination and ownership of the captured vessel.
Appeal from a decree made by the District Court for the Eastern District of Pennsylvania regarding the steamship Bermuda and her cargo captured during the rebellion by the government war vessel Mercedita and sent into Philadelphia and libeled there and proceeded on in prize.
The allegations of the captors were that the vessel was enemy's property and with her cargo -- largely composed of munitions of war -- had been intending either directly or by transshipment to break the blockade then established by our government of the southern coast and that both she and her cargo were on these and other grounds subject to be captured and condemned.
The case was interesting partly from the value larger than common of the ship and cargo but more particularly
from the fact that while many and strong indications of a general sort pointed at once to the truth of the allegations of the captors blockade-running had been brought by our adventurous English kinsfolk during the Southern rebellion to so much of a science; true purposes by the aid of intermediate neutral ports of their own had come to be so very well disguised; the final general destination of the cargo in this particular voyage was left so skillfully open and the capture was so confessedly in neutral neighborhoods that it was not quite easy to prove with that certainty which American courts require the intention which it seemed plain must have really existed. Thus to prove it required that truth should be collated from a variety of sources darkened or disguised; from others opened as the cause advanced and by accident only; from coincidences undesigned and facts that were circumstantial. Collocations and comparisons in short brought largely their collective force in aid of evidences that were more direct.
The history of things as they appeared on one side and on the other respectively was in substance thus:
On the captor's side. The vessel herself had been built at Stockton-upon-Tees in 1861. In August of that year a certain Edwin Haigh made the declaration of ownership required by the British Merchants' Shipping Act of 1854. He described himself as a "natural born British subject" of Liverpool "and entitled to be registered as owner" swearing according to the usual form that no other person "qualified to be owner of British ships is entitled as owner to any interest whatever." [Footnote 1] E. L. Tessier a South Carolinian
was stated to be master of the ship. It was not denied that Haigh was a British subject. On the day after her registry as appeared by a document from the Liverpool customs entitled "Certified Copy Transaction subsequent to registry" Haigh executed a power of attorney or "certificate" as it was called to Allan Stuart Hencle and George Alfred Trenholm both of Charleston South Carolina merchants
"jointly or severally to sell the ship at any place out of the Kingdom for any sum he or they may deem sufficient within twelve months from the date of the certificate."
There was no evidence that this power had ever been revoked or returned.
Trenholm was a member of the firm of Frazer Trenholm & Co. of Liverpool a firm which with its branch house John Frazer & Co. of Charleston was one of the firms most largely engaged in rendering aid to and sustaining the rebellion by fitting out blockade-runners and corsairs to injure American commerce. They were also the disbursing agents of the rebel confederation in England and they had several vessels the Ella Helen Herald Economist Albert and others forming a sort of "line" between Liverpool and Charleston which carried on blockade-running with the aid of agents at Bermuda and Nassau N.P. intermediate British neutral isles. The firm was composed of Frazer & Trenholm as also of a certain Prioleau one Welsman and a J. R. Armstrong the first four being South Carolinians; and the last alone a British subject.
In Possession of the registry and power of sale already mentioned the Bermuda sailed for Charleston then a port in rebellion and under blockade in August 1861. For some reason not stated and inferable only she ran into Savannah instead -- a port also in rebellion and under blockade -- running out again and back to Liverpool in the autumn of that year. Her master was now changed. Captain Tessier was transferred to the Bahama which afterwards became notorious in the United States as having carried armament to the rebel corsair Alabama sunk off the coast of Normandy by the United States ship of war Kearsarge. A certain Westendorff was put on the Bermuda. The British
statutes however requiring a recommendation to authorize a license to anyone as captain Frazer Trenholm & Co. in December 1861 declared that they had known Westendorff for ten years; that he served under an experienced ship master sailing out of Charleston and that he had afterwards commanded one of their ships. Among these was the Helen a blockade-runner. Westendorff was accordingly legally licensed by the British merchant authorities captain of the Bermuda.
By the practice of the British ports it is usual to endorse the address of the captain licensed on the back of his certificate of license. This endorsement on Captain Westendorff's ran thus:
"Address of bearer: Messrs. Frazer Trenholm & Co. Liverpool."
Being brought round from West Hartlepool on the east coast of England the Bermuda now prepared for another voyage. Ostensibly it was to Bermuda. The cargo consisted of various things some of which would have been useful enough at Bermuda but which -- cut off as the place had been by the blockade from commerce -- were supremely desired at Charleston such as tea coffee drugs surgical instruments shoes boots leather saddlery &c. Among the dry-goods were five cases of lawns each having a card upon it representing a youth gallantly mounting a parapet and bearing onward the "FLAG OF THE CONFEDERATE STATES" which in all its colors was spread to the breeze.
There were found also several cases of military decorations &c.; epaulettes for all grades; stars for the shoulder-straps of officers of rank; bugles crossed swords and cannons for different sorts of cap fronts; swords for staff and line officers; chapeaux de bras; embroidered wreaths "without U.S. on;" [Footnote 2] various sizes of military buttons for coats and vests; some with the palmetto tree; belts with the same designations; other buttons and belts with the letters S.C.; L; [Footnote 3] T.; [Footnote 4] &c. and with eagles surrounded by eleven
stars; palmetto trees embroidered on blue cloth &c.; sash buckles with the arms of Georgia of South Carolina &c.
Among the cargo were several cases of cutlery which was stamped as
Manufactured expressly for John Treanor & Nephew Savannah Ga.
It embraced a variety of articles stamped with portraits and legends thus:
OUR FIRST PRESIDENT
The right man in the right place
Others presented a military figure emblazoned
He lives to conquer
Others represented a bull running after a man with soldiers chasing and over the bull this motto:
ON TO WASHINGTON! BULL RUN
The blades of these were stamped
Courtney & Tenant Charleston S.C.
Several cases of double-barreled guns were found stamped as
Manufactured for J. E. Adger of Charleston
There was also a large amount of munitions of war; five finished Blakely cannon in cases with carriages; six cannon -- some cast some wrought -- not in cases; some thousand shells varying from seven to a hundred and twelve pounds each and fuses for them. Three hundred barrels seventy-eight half-barrels and two hundred and eighty-three quarter-barrels of gunpowder seven hundred bags of saltpetre; seventy-two thousand cartridges two and a half million percussion caps two cases of Enfield rifles twenty-one cases of swords marked N.D. (navy department?) seven cases of pistols and a variety of like or accessory things -- in all about eighty tons weight. In addition to these was a large amount of army blankets army cloths kerseys vulcanized cloth with fifteen hundred yards of adhesive plaster -- these last large enough to be invoiced at $62500.
Numerous letters of friendship and business were found
in the vessel from people abroad to different persons in the rebel states Mrs. Trapman Mrs. Trenholm Mrs. Rose Mr. T. M. Hencle Mr. C. F. Hencle Mr. John Hencle &c.; also five numbers of the Times sent by some person in England to his friend in the South; also a book by one Spence published by Richard Bentley New Burlington Street London showing the bad effects which the American Union had had on the national character and policy and that "secession" was "a constitutional right" several passages being marked in margine apparently as if to invite attention specially to them.
A few memoranda also were found aboard -- requests apparently from persons in Charleston to Captain Westendorff to buy things for them in England and bring them through the blockade. A part of one may serve for illustration -- it having been evidently by some lady.
2 pair ladies' kid gloves silver-gray color
2 pair ladies' kid gloves tea color Best quality
2 pair ladies' kid gloves ashes of rose Size 6 3/4
light and dark
2 pair ladies' gaiters best kid stout
soles soft upper 3 1/2 full
1 ladies' parasol best silk color drab or ashes of rose
1/4 pound black sewing silk fine. If it can be had of
mixed colors get 1/2 pound of best qualities
1 pair lady's scissors ordinary size and some needles
of best make M. S. D.
Get the best quality of everything
One of the memoranda which like the other was a lady's and contained an order for gloves -- "dark-colored kid" -- concludes:
"May God bless Captain W. and protect him and bring him in safety back to his family church and friends is our prayer for him."
On the vessel were several persons called in various letters
"government passengers" being in fact "artists" sent from Scotland. An account of them was given in certain letters found on the vessel some addressed to a certain Mr. Morris "lithographer" in Charleston who it appears had safely ran the blockade not long before. In different parts they ran thus:
"80 BISHOPSGATE WITHIN 26 LEADENHALL STREET"
"LONDON February 12 1862"
"I was very much pleased to hear that you managed to escape the vigilance of the Yankee vessels in getting into Charleston and from the accounts I have heard should think you had a very narrow escape."
"A commissioner (Major Ficklin) from the Confederate government has been over here and has sent a lot of printers and engravers and presses and paraphernalia complete which he obtained from Scotland. He served me very shabbily and ungentlemanlike. I had many interviews with him and gave him all necessary information; furnished him with a list of requirements compromising myself with several workmen and put myself to many inconveniences. He admitted my price being proper and correct and led me to believe he would give me his order but having got out of me all he could he then entrusted the order with another house. I hardly think that fair after promising to trust me with it and within a few weeks of its execution."
"We in England do not think the North can hold on much longer the financial state being such as to induce us to hope that two or three months will settle your present deplorable state."
"We enclose our catalogue which may guide you and we make and can buy paper of all kinds as well as any London house so could execute your order for foolscap loan paper with watermark C.S.A. as shipped you at 42s. per ream double equaling two reams single."
"Trusting soon to hear of you I am yours"
This "lot of printers and engravers" which Major Ficklin had obtained in Scotland embarked under the charge of one George Dunn on the Bermuda on this voyage the whole
party being entered on the crew list as common sailors. They appeared to have taken their "paraphernalia complete" with them. There were at least 26 boxes marked P.O.D. (post office department?) with immense numbers of "Confederate States" postage stamps; "printing ink for postage stamps;" copper-plates with 400 dies for printing at each impression 400 rebel postage stamps; also 200000 letter envelopes; some "American-shape" "official blue" &c.; many reams of fine white bank note paper watermarked.
intended obviously for "Confederate States" bank notes or bonds -- "foolscap loan paper" and the same apparently which is referred to and so styled in the concluding paragraph of the letter of Mr. C. Straker of London to his friend and correspondent Morris quoted on the preceding page "as shipped you at 42s. per ream double equaling two reams single." All this stationery having gone with the captured vessel to the port of Philadelphia was there sold.
So among the persons that embarked on the Bermuda at Liverpool were certain gentlemen residents of Charleston but perfectly well known in circles of gentility both North and South before the rebellion began. Among these as was specially noted by the counsel of the captors was the late amiable Mr. John Julius Pringle a well known gentleman of education and fortune resident in South Carolina during the winter but at Newport Rhode Island in summer. Mr. Pringle with his two sons Mr. Joel Poinsett Pringle and Mr. John Julius Pringle Jr. with Mr. Arthur Huger all of whom the rebellion found in Europe and whose unquestionable wish and purpose was to return to the South were entered on the shipping list as common sailors and by disguised names. The nature of a shipping list and some of the regulations under which as ordinary seamen [O.S.] these gentlemen came appear by presenting original instruments themselves. The gentlemen's names on the list are in italics.
Of the ship's real company the master Westendorff the first mate and the master's brother (calling himself and shipped as a hand but acting as clerk) and three seamen were citizens of South Carolina and the second mate the carpenter and cook belonged to other states in rebellion.
There were forty-five bills of lading of which thirty-one were for goods shipped by Fraser, Trenholm & Co. The whole of the cargo was shipped under their direction and according to the bills of lading it was to be delivered at Bermuda "unto order or assigns." No consignees were named on the bills.
Several of the persons connected with the ship or otherwise and who were examined in preparatorio appeared to regard her as owned by Fraser Trenholm & Co. Thus the chief engineer when thus asked to whom she belonged answered: "To the best of my knowledge Fraser, Trenholm & Co. are the owners." Heenan a fireman said: "I have understood that Fraser, Trenholm & Co. are the owners." Noble another fireman: "The owners of the captured vessel to the best of my knowledge and belief are Fraser, Trenholm & Co." And Pierson a third one said:
"At Liverpool it was the common talk that Fraser, Trenholm & Co. of Liverpool owned the captured vessel." A letter of one of the mates found on board and written to some friend [Footnote 5] seemed to speak of them in the same way. So too Tessier the old captain writes to Westendorff his successor thus:
"STOCKTON-ON-TEES 20 Feb. 1862"
"Will you do me a favor? Opposite the Brumley Moore Dock wall there is a bootmaker of the name of Warner. As you are passing by will you have the kindness to step in and inquire whether a pair of sea boots I ordered have been sent to the office of our owners. If they have please request Mr. Griffiths head porter of Frazer Trenholm & Co. to forward them to me."
"Captain Mitchell must have had a trying time since he sailed. I hope he kept her well to the southward after leaving the channel. To take the H.[erald?] across the Atlantic at this season will require some working."
"With sincerest regards I remain ever yours respectfully"
"E. L. TESSIER"
Certain correspondence between Fraser, Trenholm & Co. and their branch house &c. was specially relied on by the captors to show that the British subject Haigh was not the owner and that the firm of Fraser, Trenholm & Co. was. Thus it appeared that on the 16th of January 1862 the Liverpool house of Fraser, Trenholm & Co. write to the Charleston branch John Fraser & Co. that they had dispatched the ship Ella with a cargo to Butterfield Bermuda and that she would be followed by the steamer Bermuda with goods.
They now write as follows:
"[Ella] LIVERPOOL 23 January 1862"
"MESSRS. JNO. FRASER & CO. Charleston."
"DEAR FRIENDS: Referring to our respects of 16th inst. we now hand enclosed bills lading of the cargo per ship Ella and copies of invoices. "
"These goods are all shipped by our friends here but the disposition of them there is left entirely to you and in any market to which you may please to direct them."
"The bills of lading are endorsed to your order or that of your authorized agent. Captain Carter is an intelligent shipmaster and we believe a good man of business; any communication for him if you do not find it expedient to send an agent to Bermuda should be sent under cover to Mr. N. T. Butterfield Hamilton Bermuda. Captain Carter is instructed to proceed to Bermuda and there await your instructions. The ship is now in the river ready for sea."
"The Albert sailed yesterday for Nassau and will proceed after landing her cargo to Rio for a cargo of coffee with which she is to return to Nassau for orders."
"We remain yours very truly"
"FRASER, TRENHOLM & CO."
"LIVERPOOL 28 February 1862"
"MESSRS. JNO. FRASER & CO."
"(or their authorized agent)"
"DEAR SIRS: The letters we have written by this opportunity with invoices and bills of lading of the cargo of the ship are very full in every particular and we think will greatly facilitate the delivery and also the transshipment should this be determined upon. We think that care should be taken to prevent the loss of any of the invoices or bills of lading but should this unfortunately happen duplicates can be furnished hereafter which would however involve much delay and great inconvenience in the delivery of the goods and without the invoices there would necessarily be much embarrassment in effecting sales."
"In case of there being an opportunity of sending the letters forward with the invoices and bills of lading we cannot too strongly impress upon you the adoption of the most certain means of preventing any of them falling into improper hands."
"FRASER, TRENHOLM & CO."
On the 1st of April 1862 the Charleston house write to Butterfield thus having by previous letter informed him of
their being advised that the Ella was dispatched and that she would be followed by the Bermuda.
"CHARLESTON April 1 1862"
"We suppose that the steamer Bermuda may be with you ere this and the ship Ella."
"We will thank you to request the masters to act as follows viz.:"
"Captain Westendorff to take in the tea and other light articles per Ella (if he has room for them) and proceed to Nassau reporting himself on arrival there to Messrs. Hy. Adderly & Co."
"Captain Carter to keep in his cargo and wait further orders from us. They will reach him we think very shortly."
"JNO. FRASER & CO."
"N. T. BUTTERFIELD Esq."
Butterfield who received this letter nineteen days after it was written immediately sent it to Captain Westendorff at St. George's. Westendorff acted on it at once. He took the new articles aboard and the artists having got out from his ship -- though he refused as involving him in too great a responsibility in the face of his new orders to deliver to Dunn the printing presses and working apparatus consigned with the party under him to Bermuda -- he proceeded from St. George's towards Nassau on the 23d of April. Mr. Pringle and the other South Carolina gentlemen were aboard. On the 27th the vessel was captured. He had arrived at Bermuda on the 19th March and was accordingly there about five weeks. His cargo was not touched while there.
Among the papers taken on board the Bermuda was an unfinished letter without signature and apparently written by an engineer of the Bermuda to a friend (another engineer it was said) at Stockton-upon-Tees. It ran thus:
"LIVERPOOL WELLINGTON DOCK February 16 1862"
"MR. A. GRAY Stockton-on-Tees:"
"We are all the talk of Liverpool at present taking in those large rifled cannon (without cases) and large lots of ammunition
and materials of war. In American circles our fate is discussed pretty freely; they have us taken imprisoned and hung already. Our Hartlepool friend Mr. Detective Maguire [Footnote 6] has got a job here again; is regularly to be seen on the quay to take a look of what is going on board. They put the custom house inspectors to a great deal of trouble because they are coming down every day opening boxes and cases -- to satisfy J_____. The inspector said to me yesterday that there existed great jealousy on account of our cargo but fortunately they cannot stop us. We are on a lawful voyage; people won't believe it here; they are bound to think we are for running the blockade again."
"Our tender left yesterday; don't be at all surprised we have got a tender; they bought a light draft boat at Dublin used to run the mail once called the Herald; length 280 feet; deep water line 10 feet; light 5 1/2; side-width 225; horse nominal used to press up to 28 pounds; got her boilers stayed strengthened and so forth; strains up to 20 pounds now; average speed 18 1/2 knots per hour; razed all her lower cabins to make cargo space; shipped crew for twelve months for some port or ports south of Mason and Dixon's line. Three captains on board; one an Englishman nominal; another an experienced coast pilot from the Potomac to Charleston; another ditto ditto from Charleston to the San Juan River in Texas. If the Yankees reach her they are smarter than I give them credit for. She awaits our arrival in Bermuda; goes first into Charleston though to see about the stone fleet. Don't tell Tessier I gave you the information; he'll write straight to the owners and tell them I am a traitor and blabber out secrets; I know him. I have seen the owners; all fudge what he told me. Mr. Preleau (principal man) came up to me; shook hands; said was glad to see me. I said I hope I didn't incur your displeasure by remaining in the Bermuda. Answer. Not at all."
The record showed that after his arrival at Bermuda Mitchell captain of the Herald drew a bill on Fraser, Trenholm & Co. at Liverpool in favor of Westendorff captain
of the Bermuda for
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