In the fourth clause of the President's proclamation of April
26, 1898, issued after the declaration of war against Spain by
Congress, April 25, 1898, it was said:
"4. Spanish merchant vessels in any ports or places within the
United States shall be allowed till May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places, and
such Spanish merchant vessels, if met at sea by any United States
ship, shall be permitted to continue their voyage if, on
examination of their papers, it shall appear that their cargoes
were taken on board before the expiration of the above term;
provided, that nothing herein contained shall apply to Spanish
vessels having on board any officer in the military or naval
service of the enemy, or any coal (except such as may be necessary
for their voyage), or any other article prohibited or contraband of
war, or any dispatch of or to the Spanish government."
The
Buena Ventura, a Spanish vessel, being at Cuba in
March, 1898, was chartered to proceed with all convenient speed to
Ship Island, Mississippi, and there to take on board a cargo of
lumber for Rotterdam. Under this charter, she arrived at Ship
Island in the latter part of March, 1898, and took on a cargo of
lumber for Rotterdam. She cleared at the custom house on the 14th
of April accordingly, but was detained by low water until April 19,
when, between 8 and 9 A.M., she proceeded on her voyage. While so
proceeding, she was captured by a man of war of the United States
about ten miles off the Florida coast. Up to the moment of capture,
all her officers were ignorant of the existence of a State of war,
and the vessel, at the time of her capture, was following the
ordinary course of her voyage. After hearing in the district court
of the United States, the
Buena Ventura was condemned and
sold under a decree of court, and the proceeds were deposited to
abide the event of an appeal from that decree.
Held:
(1) That an innocent vessel like the
Buena Ventura,
which had loaded within a port of the United States and had sailed
therefrom before the commencement of the war, was entitled, under
the proclamation, to continue its voyage, that being clearly within
the intention of the President, under the liberal construction
which this Court is bound to give to that document.
(2) That the reversal of the judgment below condemning the
Buena Ventura should be without costs or damages in her
favor.
(3) That the moneys arising from the sale of the vessel must be
paid to the claimant, deducting only the expenses properly incident
to her custody and preservation up to the time of sale.
Page 175 U. S. 385
During the late war between the United States and Spain, and on
May 27, 1898, the District Court of the United States for the
Southern District of Florida condemned the steamship
Buena
Ventura as lawful prize of war, on the ground
"that the said steamship
Buena Ventura was enemy's
property, and was upon the high seas and not in any port or place
of the United States upon the outbreak of the war, and was liable
to condemnation and seizure."
It was thereupon ordered that the vessel
"be condemned and forfeited to the United States as lawful prize
of war, but, it appearing that the cargo of said steamer was the
property of neutrals and not contraband and subject to condemnation
and forfeiture, it is ordered that said cargo be released and
restored to the claimant or the true and lawful owners
thereof."
The vessel was captured on April 22, 1898, eight or nine miles
from Sand Key Light, on the Florida coast, by the United States
ship of war
Nashville, under the command of a line officer
of the United States Navy, was brought into the port of Key West
for adjudication, and was condemned upon the answers given by the
master and mate of the steamship to standing interrogatories
in
preparatorio and upon the documents seized on board the ship
by the captors. This evidence showed that the steamship was a
Spanish vessel engaged exclusively in the carrying of cargoes, and
that, at the time of her capture, she was making a voyage under a
charter party which had been concluded in Liverpool on March 23,
1898, between the agents of the owners and the agents of the
charterers. By this charter party, the steamship was described as
"now ready to leave Cuba;" and it was agreed upon therein that the
vessel should with all convenient speed proceed to Ship Island,
Mississippi, and there take on a cargo of lumber, and proceed
therewith, as customary, to Rotterdam. The vessel was to be at her
loading place and ready for cargo on or before the 10th of April,
and if she were not, the charterers had the option of cancelling
the charter. Pursuant to this charter party, the ship left Cuba and
arrived at Ship Island about the 31st of March, and between that
time and the 19th of April she had taken on her cargo, and on
the
Page 175 U. S. 386
latter day had sailed from Ship Island bound for Norfolk,
Virginia, to take in bunker coal, the charter party giving the
vessel the liberty to stop at any port on the voyage for coal, then
to proceed to Rotterdam. After leaving port at Ship Island, she
proceeded on her voyage to Norfolk, and about half-past seven
o'clock on the morning of April 22, while proceeding close to the
Florida reefs, was captured as stated. She made no resistance at
the time of her capture, there were no military or naval officers
on board of her, and she carried no arms or munitions of war. The
evidence is undisputed that the vessel, when captured, was
proceeding on her voyage to Norfolk.
Previous to sailing from Ship Island, she was furnishing with a
bill of health in which it was stated that she was now "ready to
depart from the port of Pascagoula, Mississippi [which is the
customs port of Ship Island], for Norfolk, Virginia, and other
places beyond the sea." Her manifest showed that she was bound for
Norfolk. It is headed "Coast Manifest," and after a description of
the cargo, it continues: "Permission is hereby granted to said
vessel to proceed from this port to Norfolk, in the District of
Norfolk and State of Virginia, to lade bunker coal," and it was
signed and sealed by the Deputy Collector of Pascagoula, District
of Pearl River, Mississippi, on April 14, 1898, and the fees
therefor paid.
The ship's clearance was for Norfolk, and contained the same
permission to proceed there to lade bunker coal.
There was no evidence which tended to throw any suspicion as to
the destination of the vessel.
After obtaining all of her papers in the regular way and having
cleared at the custom house on April 14, 1898, she was detained at
Ship Island by low water until between 8 and 9 o'clock A.M. of
April 19, 1898, when she sailed over the bar and proceeded on her
voyage.
In the test affidavit of the master, he swore that at all times
before the ship's seizure, he and all of his officers were ignorant
that war existed between Spain and the United States, and the
vessel at the time of her capture was following the ordinary course
of her voyage.
Page 175 U. S. 387
The various proceedings of Congress, proclamations of the
President, letters of the Secretary of State, and other public
documents connected with occurrences leading up to the breaking out
of hostilities between this country and Spain are contained in this
record, but are also set forth at sufficient length in the
statement of facts contained in the report of the case of
The
Pedro, ante, p.
175 U. S. 355,
and it is unnecessary therefore to repeat them.
After a hearing, the district court, on the 27th of May, 1898,
condemned the vessel, 87 F. 927, which was sold under the final
decree of the court, and her proceeds deposited to abide the event
of an appeal, which was then taken on the part of the claimant.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The
Buena Ventura was a Spanish merchant vessel in the
peaceful prosecution of her voyage to Norfolk, Virginia, from Ship
Island, in the State of Mississippi, when, on the morning of April
22, 1898, she was captured as lawful prize of war, of the existence
of which, up to the moment of capture, all her officers were
ignorant. She was not violating any blockade, carried neither
contraband of war nor any officer in the military or naval service
of the enemy, nor any dispatch of or to the Spanish government, and
attempted no resistance when captured.
The facts regarding this vessel place her within that class
Page 175 U. S. 388
which this government has always desired to treat with great
liberality. It is, as we think, historically accurate to say that
this government has always been, in its views, among the most
advanced of the governments of the world in favor of mitigating, as
to all noncombatants, the hardships and horrors of war. To
accomplish that object, it has always advocated those rules which
would in most cases do away with the right to capture the private
property of an enemy on the high seas. 3 Wharton's International
Law Digest ยง 342. The refusal of this government to agree to the
Declaration of Paris was founded in part upon the refusal of the
other governments to agree to the proposition exempting private
property, not contraband, from capture upon the sea.
It being plain that merchant vessels of the enemy carrying on
innocent commercial enterprises at the time or just prior to the
time when hostilities between the two countries broke out would, in
accordance with the later practice of civilized nations, be the
subject of liberal treatment by the Executive, it is necessary when
his proclamation has been issued, which lays down rules for
treatment of merchant vessels, to put upon the words used therein
the most liberal and extensive interpretation of which they are
capable, and where there are two or more interpretations which
possibly might be put upon the language, the one that will be most
favorable to the belligerent party, in whose favor the proclamation
is issued, ought to be adopted.
This is the doctrine of the English courts, as exemplified in
The Phoenix, Spinks Prize Cases 1, 5, and
The Argo,
id., p. 52. It is the doctrine which this Court believes to be
proper and correct.
To ascertain the intention of the Executive, we must look to the
words which he uses. If the language is plain and clear, and the
meaning not open to discussion, there is an end of the matter. If,
however, such is not the case, and interpretation or construction
must be resorted to for the purpose of ascertaining the precise
meaning of the text, it is our duty with reference to this public
instrument to make it as broad in its exemptions as is reasonably
possible.
Page 175 U. S. 389
If inferences must be drawn therefrom in order to render certain
the limitations intended, those inferences should be, so far as is
possible, in favor of the claimant in behalf of the owners of the
vessel.
The language to justify an exemption of the vessel must, it is
true, be found in the proclamation; yet if such language fail to
state with entire clearness the full extent and scope of such
exemption, thereby making it necessary that some interpretation
thereof should be given, it is proper to refer to the prior views
of the Executive Department of the government as evidence of its
policy regarding the subject. This is not for the purpose of
enlarging the natural and ordinary meaning of the words used in the
proclamation, but for the purpose of thereby throwing some light
upon the intention of the Executive in issuing the instrument, and
also to aid in the interpretation of the language employed therein,
where the extent or scope of that language is not otherwise
entirely plain and clear. A reference to the views that have
heretofore been announced by the Executive Department is made in 3
Wharton,
supra, and it will be found that they are in
entire accord with the most liberal spirit for the treatment of
noncombatant vessels of the enemy.
We come now to the construction of the instrument. It will be
seen that Congress, on the 25th of April, 1898, declared war
against Spain, and in the declaration it is stated that war had
existed since the 21st of April preceding. The President on the
26th of April issued his proclamation regarding the principles to
be followed in the prosecution of the war. It is dated the day it
was issued. The fourth clause thereof may for convenience be here
reproduced, as follows:
"4. Spanish merchant vessels in any ports or places within the
United States shall be allowed until May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places, and
such Spanish merchant vessels, if met at sea by any United States
ship, shall be permitted to continue their voyage if, upon
examination of their papers, it shall appear that their cargoes
were taken on board before the expiration of the above term:
Provided, that nothing herein
Page 175 U. S. 390
contained shall apply to Spanish vessels having on board any
officer in the military or naval service of the enemy, or any coal
(except such as may be necessary for their voyage), or any other
article prohibited or contraband of war, or any dispatch of or to
the Spanish government."
What is included by the words
"Spanish merchant vessels in any ports or places within the
United States shall be allowed until May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places?"
At what time must these Spanish vessels be "in any ports or
places within the United States" in order to be exempt from
capture? The time is not stated in the proclamation, and therefore
the intention of the Executive as to the time must be inferred. It
is a case for construction or interpretation of the language
employed.
That language is open to several possible constructions. It
might be said that, in describing Spanish merchant vessels in any
ports, etc., it was meant to include only those which were in such
ports on the day when the proclamation was issued, April 26. Or it
might be held (in accordance with the decision of the district
court) to include those that were in such ports on the 21st of
April, the day that war commenced, as Congress declared. Or it
might be construed so as to include not alone those vessels that
were in port on that day, but also those that had sailed therefrom
on any day up to and including the 21st of May, the last day of
exemption, and were, when captured, continuing their voyage,
without regard to the particular date of their departure from port,
whether immediately before or subsequently to the commencement of
the war or the issuing of the proclamation.
The district judge, before whom several cases were tried
together, held that the date of the commencement of the war (April
21) was the date intended by the Executive; that, as the
proclamation of the 22d of April gave thirty days to neutral
vessels found in blockaded ports, it was but reasonable to consider
that the same number of days, commencing at the outbreak of the
war, should be allowed so as to bring it to the 21st of May, the
day named; that, although a retrospective
Page 175 U. S. 391
effect is not usually given to statutes, yet the question always
is what was the intention of the legislature?
He also said that
"the intention of the Executive was to fully recognize the
recent practice of civilized nations, and not to sanction or permit
the seizure of the vessels of the enemy within the harbors of the
United States at the time of the commencement of the war or to
permit them to escape from ports to be seized immediately upon
entering upon the high seas."
(See preamble to proclamation.)
In the
Buena Ventura, the case at bar, the district
judge held that her case "clearly does not come within the language
of the proclamation."
It is true the proclamation did not in so many words provide
that vessels which had loaded in a port of the United States and
sailed therefrom before the commencement of the war should be
entitled to continue their voyage, but we think that those vessels
are clearly within the intention of the proclamation under the
liberal construction we are bound to give to that document.
An intention to include vessels of this class in the exemption
from capture seems to us a necessary consequence of the language
used in the proclamation when interpreted according to the known
views of this government on the subject and which it is to be
presumed were the views of the Executive. The vessel when captured
had violated no law. She had sailed from Ship Island after having
obtained written permission, in accordance with the laws of the
United States, to proceed to Norfolk in Virginia, and the
permission had been signed by the deputy collector of the port and
the fees therefor paid by the ship. She had a cargo of lumber,
loaded but a short time before the commencement of the war, and she
left the port but forty-eight hours prior to that event. The
language of the proclamation certainly does not preclude the
exemption of this vessel, and it is not an unnatural or forced
construction of the fourth clause to say that it includes this
case.
The Commission of any date in this clause, upon which the vessel
must be in a port of the United States, and prior to
Page 175 U. S. 392
which the exemption would not be allowed, is certainly very
strong evidence that such a date was not material so long as the
loading and departure from our ports were accomplished before the
expiration of May 21. It is also evident from the language used
that the material concern was to fix a time in the future prior to
the expiration of which vessels of the character named might sail
from our ports and be exempt from capture. The particular time at
which the loading of cargoes and sailing from our ports should be
accomplished was obviously unimportant, provided it was prior to
the time specified. Whether it was before or after the commencement
of the war would be entirely immaterial. This seems to us to be the
intention of the Executive, derived from reading the fourth clause
with reference to the general rules of interpretation already
spoken of, and we think there is no language in the proclamation
which precludes the giving effect to such intention. Its purpose
was to protect innocent merchantmen of the enemy who had been
trading in our ports from capture, provided they sailed from such
ports before a certain named time in the future, and that purpose
would be wholly unaffected by the fact of a sailing prior to the
war. That fact was immaterial to the scheme of the proclamation,
gathered from all its language.
We do not assert that the clause would apply to a vessel which
had left a port of the United States prior to the commencement of
the war and had arrived at a foreign port and there discharged her
cargo, and had then left for another foreign port prior to May 21.
The instructions to United States ships, contained in the fourth
clause, to permit the vessels "to continue their voyage" would
limit the operation of the clause to those vessels that were still
on their original voyage from the United States and had taken on
board their cargo (if any they had) at a port of the United States
before the expiration of the term mentioned. The exemption would
probably not apply to such a case as
The Phoenix (Spinks
Prize Cases 1). That case arose out of the English order in
council, made at the commencement of the Crimean War. The vessel
had sailed from an English port in the middle of
Page 175 U. S. 393
February, 1854, with a cargo, bound for Copenhagen, and having
reached that port and discharged her cargo by the middle of March,
she had sailed therefrom on the 10th of April, bound to a foreign
port, and was captured on the 12th of April, while proceeding on
such voyage. The order in council was dated the 29th of March,
1854, and provided that
"Russian merchant vessels, in any ports or places within her
Majesty's dominions, shall be allowed until the 10th day of May
next, six weeks from the date hereof, for loading their cargoes and
departing from such ports or places,"
etc. The claim of exemption was made on the ground that the
vessel had been in an English port, and although she sailed
therefrom in the middle of February to Copenhagen and had there
discharged her cargo before the order in council was promulgated,
yet it was still urged that she was entitled to exemption from
capture. The court held the claim was not well founded, and that it
could not by any latitude of construction hold a vessel to have
been in an English port on the 29th of March which on that day was
lying in the port of Copenhagen, having at that time discharged the
cargo which she had taken from the English port. It is true the
court took the view that the vessel must at all events have been in
an English port on the 29th of March in order to obtain exemption,
and if not there on that day, the vessel did not come within the
terms of the order and was not exempt from capture. From the
language of the opinion in that case, it would seem not only that a
vessel departing the day before the 29th of March would not come
within the exemption, but that a vessel arriving the day after the
29th and departing before the 10th of May following would also fail
to do so; that the vessel must have been in an English port on the
very day named, and if it departed the day before or arrived the
day after, it was not covered by the order.
The French government also, on the outbreak of the Crimean War,
decreed a delay of six weeks, beginning on the date of the decree,
to Russian merchant vessels in which to leave French ports. Russia
issued the same kind of a decree, and other nations have at times
made the same provisions. It is
Page 175 U. S. 394
claimed that they confine the exemption to vessels that are
actually within the ports of the nation at the date of issuing the
decree or order.
We are not inclined to put so narrow a construction upon the
language used in this proclamation. The interpretation which we
have given to it, while it may be more liberal than the other, is
still one which may properly be indulged in.
If this vessel, instead of sailing on the 19th, had not sailed
until the 21st of April, the court below says she would have been
exempt from capture. In truth, she was from her character and her
actual employment just as much the subject of liberal treatment,
and was as equitably entitled to an exemption when sailing on the
19th, as she would have been had she waited until the 21st. No fact
had occurred since her sailing which altered her case in principle
from the case of a vessel which had been in port on, though sailing
after, the 21st. To attribute an intention on the part of the
Executive to exempt a vessel if she sailed on or after the 21st of
April, and before the 21st of May, and to refuse such exemption to
a vessel in precisely the same situation, only sailing before the
21st, would, as we think, be without reasonable justification. It
may safely be affirmed that he never had any such distinction in
mind and never intended it to exist. There is nothing in the nature
of the two cases calling for a difference in their treatment. They
both alike called for precisely the same rule, and if there be
language in the clause or proclamation from which an inference can
be drawn favorable to the exemption, and none which precludes it,
we are bound to hold that the exemption is given. We think the
language of the proclamation does permit the inference, and that
there is none which precludes it.
We are aware of no adjudications of our own court as to the
meaning to be given to words similar to those contained in the
proclamation, and it may be that a step in advance is now taken
upon this subject. Where, however, the words are reasonably capable
of an interpretation which shall include a vessel of this
description in the exemption from capture, we are not adverse to
adopting it, even though this Court may be the first to do so. If
the Executive should hereafter be inclined
Page 175 U. S. 395
to take the other view, the language of his proclamation could
be so altered as to leave no doubt of that intention, and it would
be the duty of this Court to be guided and controlled by it.
Deciding as we do in regard to the fourth clause, it becomes
unnecessary to examine the other grounds for a reversal discussed
at the bar.
The question of costs then arises. We had occasion in
The
Olinde Rodrigues, 174 U. S. 510, to
examine that question in relation to the existence of probable
cause for making the capture. In that case, it was held that such
probable cause did exist, and although the facts therein proved did
not commend the vessel to the favorable consideration of the court,
yet, upon a careful review of the entire evidence, we held that we
were not compelled to proceed to the extremity of condemning the
vessel. Restitution was therefore awarded, but without damages.
Payment of the costs and expenses incident to her custody and
preservation, and of all costs in the case except the fees of
counsel, were imposed upon the ship.
In this case, but for the proclamation of April 26, the ship
would have been liable to seizure and condemnation as enemy
property. At the time of seizure, however (April 22), that
proclamation had not been issued, and hence there was probable
cause for her seizure, although the vessel was herself entirely
without fault. The subsequent issuing of the proclamation covering
the case of a vessel situated as was this one took away the right
to condemn which otherwise would have existed. Thus, at the time of
seizure, both parties, the capturing and the captured ship, were
without fault, and while we reverse the judgment of condemnation
and award restitution, we think it should be without damages or
costs in favor of the vessel captured. The ship having been sold,
the moneys arising from the sale must be paid to the claimant
without the deduction of any costs arising in the proceeding, but
after deducting the expenses properly incident to her custody and
preservation up to the time of her sale, and it is so ordered.
THE CHIEF JUSTICE and MR. JUSTICE GRAY and MR. JUSTICE McKENNA
dissented.
