A legal blockade may be established by a naval officer acting
upon his own discretion, or under direction of superiors, without
governmental notification.
In view of the operations being carried on for the purpose of
destroying or capturing the Spanish fleet at Santiago de Cuba, and
the reduction of that place, it was competent for the admiral
commanding the squadron to establish a blockade there, and at
Guantanamo, as an adjunct to such operations, and such blockade was
valid as against all vessels having notice thereof. It appearing
that Guantanamo was eighteen miles from the mouth of Guantanamo
Page 176 U. S. 362
Bay and was still occupied by the enemy,
held that
although the American troops occupied the mouth of the bay, the
blockade was still operative as to vessels bound to the City of
Guantanamo.
The legal effect of a lawful and sufficient blockade is a
closing of the port and an interdiction of the entrance of all
vessels of whatever nationality or business.
The sailing of a vessel with a premeditated intent to violate a
blockade is
ipso facto a violation of the blockade, and
renders her subject to capture from the moment she leaves the port
of departure.
If a master has actual notice of a blockade, he is not at
liberty even to approach the blockaded port for the purpose of
making inquiries.
If a neutral vessel be chartered to an enemy, she becomes to a
certain extent and
pro hac vice an enemy's vessel, and a
notice to her charterer of the existence of a blockade is a notice
to the vessel.
It appearing in this case that both the charterer and the vessel
had been previously engaged in bringing away refugees from Cuba,
and were chargeable with notice of the military and naval
operations against that island, that such facts were of common
knowledge at the port from which she sailed, and that intercourse
with Cuban ports was dangerous, and it appearing from a
preponderance of evidence that both the charterer and master of the
vessel had knowledge of the blockade,
held that the vessel
was properly condemned.
If an examination of the ship's papers and the testimony of the
crew, taken
in preparatorio, make a case for condemnation,
an order for further proof is only made where the interests of
justice clearly require it.
Held in this case that there
was no error in denying the motion of the claimant for further
proofs.
This was a libel in prize against the British steamship
Adula, then under charter to a Spanish subject, which was
seized June 29, 1898, by the United States cruiser
Marblehead for attempting to run the blockade established
at Guantanamo Bay in the Island of Cuba, and was subsequently sent
into the port of Savannah for adjudication.
The
Adula, a vessel of 372 tons, was built at Belfast
in 1889 for her owner, the Atlas Steamship Company, Limited, a
British corporation, and was registered in the name of its managing
director, Sir William Bowers Forwood. Prior to the American-Spanish
war, she was engaged in general trade between Kingston and other
ports on the coast of Jamaica, and from time to time had made
voyages to Cuban ports. After the breaking out of the war, the
steamer was chartered by various persons, in the intervals of its
regular work, for voyages to Cuba.
Page 176 U. S. 363
In the meantime, however, under the command of Rear Admiral
Sampson, a blockade was established at Santiago, where the Spanish
fleet lay under the command of Admiral Cervera. Upon June 8, a
blockade of Guantanamo Bay was also established by order of Admiral
Sampson, the blockading squadron being under the command of
Commander McCalla. Both of these blockades were maintained during
the war. On April 22, a blockade of the north coast of Cuba between
Cardenas and Bahia Honda and of Cienfuegos on the south coast, was
declared by the President. On June 27, the President by
proclamation, gave notice that the Cuban blockade had been extended
to included all the ports on the southern coast between Cape
Frances and Cape Cruz. This included the port of Manzanillo. On the
28th, this proclamation was made known to the vessels off
Guantanamo.
On June 27, the
Adula, then at Kingston, was engaged in
taking on a cargo for shipment. On the 28th, she discharged this
cargo, and the agent of the Atlas company entered into a charter
party with one Solis, a Spanish subject formerly resident in
Manzanillo, of the material parts of which the following is a
copy:
The
Adula was put at the disposal of the charterer
"for the conveyance of passengers from Cuban ports hereinafter
to be named, to Kingston. The ports that the vessel is to go to are
Manzanillo, Santiago, and Guantanamo, but it is distinctly
understood and agreed by the parties aforesaid that it shall not be
deemed a breach of this agreement should the steamer be prevented
from entering any of those ports from causes beyond the control of
the company, but that, should she be able to enter one or all of
them, she shall embark the passengers that the charterer shall
engage for her and proceed on her voyage. If she is not permitted
to enter either Manzanillo, Santiago, or Guantanamo, the vessel is
to return to Kingston, and the voyage shall be considered
completed, and the charter money hereinafter referred to earned
without any deductions. . . . The charterer is to provide a good
and efficient government pilot to conduct the ship safely into the
ports which have been named. Should she be permitted to
Page 176 U. S. 364
enter them the charterer guarantees that the proper and
efficient clearances shall be obtained for each port, so that the
ship shall not be subjected to any fines for breach of regulations.
. . . The company will give the option to the charterer for another
voyage similar to this on similar terms, providing the charterer
gives the company twenty-four hours' notice after the arrival of
the steamer at Kingston."
Accompanying this charter were certain instructions printed in
the margin,
* from the agent
of the company to Captain Yeates, the commander of the
Adula. These were taken from
Page 176 U. S. 365
the ship when she was captured. The
Adula left Kingston
late in the afternoon of June 28. Before sailing, Solis asked from
the United States consul at Kingston a permit to enter the ports of
Guantanamo, Santiago, and Manzanillo. This the consul refused to
give without special instructions from Washington. Just before
sailing to Santiago, Solis cabled for a licensed pilot to meet the
Adula. On leaving Kingston, she took her course around
Morant Point at the easterly end of the island, first toward
Santiago, and then to Guantanamo, and about 4 P.M. of the following
day was met before reaching the harbor and brought to by the
steamship
Vixen, was directed to proceed, entered the
harbor of Guantanamo, and was seized by the
Marblehead,
which, with other vessels of the fleet, was lying inside the bay,
and was sent to Savannah, where a libel in prize was filed against
her on July 21, 1898. The depositions
in preparatorio were
taken July 21, and her owner, the Atlas Steamship Company, appeared
as claimant and filed its answer. The case was heard upon the
proofs
in preparatorio, and a decree of condemnation
entered July 28th. 89 F. 351. Before the decree, claimant moved for
leave to take further proofs. The court set the motion down for
August 9, giving claimant leave to serve such affidavits and other
papers as it might desire to read upon the motion, and directed the
entry of the decree to be without prejudice to such motion. The
motion was finally denied, and the vessel released upon a
stipulation for her value.
From the decree of condemnation, her owner and claimant appealed
to this Court.
Page 176 U. S. 366
MR. JUSTICE BROWN delivered the opinion of the Court.
The rectitude of the decree of the district court condemning the
Adula as prize of war depends upon the existence of a
lawful and effective blockade at Guantanamo, the knowledge of such
blockade by those in charge of the vessel, and their intent in
making the voyage from Kingston.
1. No blockade of Guantanamo was ever proclaimed by the
President. A proclamation had been issued June 27 establishing a
blockade of all ports on the southern coast of Cuba between Cape
Frances on the west and Cape Cruz on the east, but as both Santiago
and Guantanamo are to the eastward of Cape Cruz, they were not
included. It appears, however, that blockades of Santiago and
Guantanamo were established in the early part of June by order of
Admiral Sampson, commander of the naval forces then investing the
ports on the southern coast of Cuba, and were maintained as actual
and effective blockades until after the capture of the
Adula.
The legality of a simple or actual blockade, as distinguished
from a public or presidential blockade, is noticed by writers upon
international law, and is said by Halleck to be
"constituted merely by the fact of an investment, and without
any necessity of a public notification. As it arises solely from
facts, it ceases when they terminate; its existence must therefore,
in all cases, be established by clear and decisive evidence."
(Halleck, International L., c. 23, sec. 10.) A
de facto
blockade was also recognized as legal by this Court in the case of
The
Circassian, 2 Wall. 135,
69 U. S. 150,
in which the question arose as to the blockade of New Orleans
during the Civil War. In delivering the opinion of the Court, the
Chief Justice observed:
"There is
Page 176 U. S. 367
a distinction between simple and public blockades which supports
this conclusion. A simple blockade may be established by a naval
officer, acting upon his own discretion or under direction of
superiors, without governmental notification; while a public
blockade is not only established in fact, but is notified, by the
government directing it, to other governments. In the case of a
simple blockade, the captors are bound to prove its existence at
the time of capture, while in the case of a public blockade, the
claimants are held to proof of discontinuance in order to protect
themselves from the penalties of attempted violation."
A like ruling was made by Sir William Scott in the case of
The Rolla, 6 C.Rob. 364, which was the case of an American
ship and cargo, proceeded against for the breach of a blockade at
Montevideo imposed by the British commander. It was argued,
apparently upon the authority of
The Henrick and Maria, 1
C.Rob. 146, that the power of imposing a blockade is altogether an
act of sovereignty which cannot be assumed or exercised by a
commander without special authority. But, says the learned
judge:
"The court then expressed its opinion that this was a position
not maintainable to that extent; because a commander going out to a
distant station may reasonably be supposed to carry with him such a
portion of sovereign authority, delegated to him, as may be
necessary to provide for the exigencies of the service on which he
is employed. On stations in Europe, where government is almost at
hand to superintend and direct the course of operations under which
it may be expedient that particular hostilities should be carried
on, it may be different. But in distant parts of the world, it
cannot be disputed, I conceive, that a commander must be held to
carry with him sufficient authority to act, as well against the
commerce of the enemy, as against the enemy himself, for the more
immediate purpose of reduction."
See also The Johanna Maria, Deane on Blockades 86.
In view of the operations then being carried on for the purpose
of destroying or capturing the Spanish fleet and reducing Santiago,
we think it was competent for Admiral Sampson to establish a
blockade there and at Guantanamo as an adjunct to such operations.
Indeed, it would seem to have been
Page 176 U. S. 368
a necessity that restrictions should be placed upon the power of
neutrals to carry supplies and intelligence to the enemy, as they
would be quite sure to do if their ships were given free ingress
and egress from these harbors. While there could be no objection to
vessels' carrying provisions to the starving insurgents if their
destination could be made certain, the probabilities were that such
provisions carried to a beleaguered port would be immediately
seized by the enemy and used for the sustenance of its soldiers.
The exigency was one which rendered it entirely prudent for the
commander of the fleet to act without awaiting instructions from
Washington.
But it is contended that, at the time of the capture, the port
of Guantanamo was completely in the possession and control of the
United States, and therefore that the blockade had been terminated.
It appears, however, that Guantanamo is eighteen miles from the
mouth of Guantanamo Bay. Access to it is obtained either by a small
river emptying into the upper bay or by rail from Caimanera, a town
on the west side of the upper bay. It seems that the
Marblehead and the
Yankee were sent to Guantanamo
on June 7, entered the harbor and took possession of the lower bay
for the use of American vessels; that the
Panther and
Yosemite were sent there on the 10th, and on the 12th the
torpedo boat
Porter arrived from Guantanamo with news of a
land battle, and from that time the harbor was occupied by naval
vessels and by a party of marines who held the crest of a hill on
the west side of the harbor near its entrance, and the side of the
hill facing the harbor. But the Town of Guantanamo, near the head
of the bay, was still held by the Spanish forces, as were several
other positions in the neighborhood. The campaign in the vicinity
was in active progress, and encounters between the United States
and Spanish troops were of frequent occurrence.
In view of these facts, we are of opinion that, as the City of
Guantanamo was still held by the Spaniards, and as our troops
occupied only the mouth of the bay, the blockade was still
operative as against vessels bound for the City of Guantanamo. Here
again, the case of
The
Circassian, 2 Wall. 135, is decisive.
The
Circassian was captured May 4, 1862, for an attempted
Page 176 U. S. 369
violation of the blockade of New Orleans. The city, including
the ports below it on the Mississippi, was captured during the last
days of April, and military possession of the city taken on May
first. It was held that neither the capture of the forts nor the
military occupation of the city terminated the blockade, upon the
ground that it applied not to the city alone, but controlled the
port, which included the whole Parish of New Orleans and lay on
both sides of the Mississippi and all the ports on that river and
on the lakes east of the city. The following language of the Chief
Justice is equally pertinent to this case:
"Now it maybe will enough conceded that a continuous and
complete possession of the city and the port, and of the approaches
from the gulf, would make a blockade unnecessary, and would
supersede it. But at the time of the capture of the
Circassian, there had been no such possession. Only the
city was occupied, not the port, much less the district of country
commercially dependent upon it and blockaded by its blockade. Even
the city had been occupied only three days. It was yet hostile; the
rebel army was in the neighborhood; the occupation, limited and
recent, was subject to all the vicissitudes of war. Such an
occupation could not at once, of itself, supersede or suspend the
blockade. It might ripen into a possession which would have that
effect, and it did, but at the time of the capture, it operated
only in aid and completion of the naval investment."
The occupation of a city terminates a blockade because, and only
because, it supersedes it, and if a vessel be bound to a port or
place beyond, which is still occupied by the enemy, the occupation
of the mouth of the harbor does not necessarily terminate the
blockade as to such places.
Granting the existence of a lawful and sufficient blockade at
Guantanamo, its legal effect was a closing of the port and an
interdiction of the entrance of all vessels of whatever nationality
or business. It is well described by Sir William Scott in
The
Vrouw Judith, 1 C.Rob. 150, 151, as
"a sort of circumvallation round a place, by which all foreign
connection and correspondence is, as far as human force can effect
it, to be entirely cut off. It is intended to suspend the entire
commerce of that place, and a neutral is no more at liberty to
Page 176 U. S. 370
assist the traffic of exportation than of importation. The
utmost that can be allowed to a neutral vessel is that, having
already taken on board a cargo before the blockade begins, she may
be at liberty to retire with it. But it must be considered as a
rule which this Court means to apply that a neutral ship,
departing, can only take away a cargo
bona fide purchased
and delivered before the commencement of the blockade. If she
afterwards takes on board a cargo, it is a fraudulent act and a
violation of the blockade."
It is also said by Phillimore, 3 Int.Law 383, that "the object
of a blockade is to prevent exports as well as imports, and to cut
off all communication of commerce with the blockaded place." The
sailing of a vessel with a premeditated intent to violate a
blockade is
ipso facto a violation of the blockade, and
renders the vessel subject to capture from the moment she leaves
the port of departure.
Yeaton v. Fry,
5 Cranch 335;
The
Circassian, 2 Wall. 135;
The Frederick
Molke, 1 C.Rob. 86;
The Columbia, 1 C.Rob. 154;
The Fortune, 2 C.Rob. 94; Wheaton on Captures 196. If a
master have actual notice of a blockade, he is not at liberty even
to approach the blockaded port for the purpose of making inquiries
of the blockading vessels, since such liberty could not fail to
lead to attempts to violate the blockade under pretext of
approaching the port for the purpose of making such inquiries.
The Admiral, 3
Wall. 603;
The Prize
Cases, 2 Black 635,
67 U. S. 677;
Duer on Ins. 661;
The Cheshire,
3 Wall. 231;
The James Cook, Edwards 261;
The
Josephine, 3 Wall. 83;
The Spes, 5 C.Rob.
76;
The Betsy, 1 C.Rob. 334;
The Neptunus, 2
C.Rob. 110;
The Little William, 1 Acton 141, 161;
Sperry v. Delaware Ins. Co., 2 Wash. C.C. 243. If there be
any distinction in this particular between a proclaimed blockade
and an actual blockade by a naval commander, it does not aid the
Adula in view of the admitted fact that she was informed
by the
Vixen that the port was under the control of the
United States military forces and that the war ships were visible
before she entered the bay.
In this connection, we are cited by counsel for the
Adula to a change in the law said to have been effected by
the adhesion of this government at the beginning of the war to
the
Page 176 U. S. 371
declaration of Paris abolishing privateering. This supposed
change apparently rests upon an extract from a French treatise upon
international law by Pistoye and Duverdy, vol. 1, p. 375, in which
it is said that, by the modern law, in consequence of the
declaration of Paris, a vessel must be notified to depart from the
blockaded port before she can be captured, and that the contrary
rule was the result of the doctrine of the British Orders in
Council during the Napoleonic wars, which is now given up by that
country. It is also said that
"the old rule was that it was a breach of blockade to enter upon
a voyage to the blockaded port. This rule is now changed, because
neutrals are obliged only to respect effective blockades. It may
well be that a blockade of which official notice has been given is
not an effective blockade, or it may be that a blockade which has
been established by a sufficient force may have ceased to exist.
Neutrals then have the right to begin a voyage to a blockaded port
in order to see if the blockade still continues. They are only
guilty when, while the blockade continues, they actually endeavor
to break it."
We cannot, however, accept this opinion as overruling in any
particular the prior decisions of this Court in the cases above
cited to the effect that a departure for a blockaded port with
intent to violate the blockade renders the vessel liable to
seizure. When Congress has spoken upon this subject it will be time
enough for this Court to act. We cannot change our rulings to
conform to the opinions of foreign writers as to what they suppose
to be the existing law upon the subject.
We have not overlooked in this connection the provision
contained in Art. 18 of Jay's Treaty of 1794 to the effect
that,
"whereas it frequently happens that vessels sail for a port or
place belonging to an enemy without knowing that the same is either
besieged, blockaded, or invested, it is agreed that every vessel so
circumstanced may be turned away from such port or place, but she
shall not be detained, nor her cargo, if not contraband, be
confiscated unless, after notice, she shall again attempt to
enter."
Fitzsimmons v. Newport Ins.
Co., 4 Cranch 185. Waiving the question whether
this clause of Jay's Treaty was abrogated by the war of 1812, and
accepting it as a correct
Page 176 U. S. 372
exposition of the law of nations, it applies only to vessels
which have sailed for a hostile port or place without knowing that
the same is either besieged, blockaded, or invested. The whole case
against the
Adula depends upon the question whether those
in charge of her knew before she left Kingston that Santiago and
Guantanamo were blockaded. If they did, the treaty does not apply.
If they did not, they are entitled to the benefit of this principle
of international law. In the case of the
Maryland
Ins. Co. v. Woods, 6 Cranch 29, in which it was
held that the vessel could not be placed in the situation of one
having notice of the blockade until she was warned off, the
decision was placed upon the express ground that orders had been
given by the British government and communicated to our
government
"not to consider blockades as existing, unless in respect to
particular ports which may be actually invested, and then not to
capture vessels bound to such ports unless they shall have been
previously warned not to enter them."
This order was treated by the Court as a mitigation of the
general rule so far as respected blockades in the West Indies.
2. The questions concerning the notification of and the intent
to violate blockade depend largely upon the same testimony, and may
be properly disposed of together. There is no doubt that the
Adula belonged to a British corporation, the Atlas
Steamship Company, was registered in the name of the managing
director of such corporation, flew the British flag, and prior to
the Spanish-American war was engaged in general trade between
Kingston and other ports on the coast of Jamaica in connection with
other steamers of the same line from New York, and from time to
time had made voyages to Cuban ports. After the breaking out of the
war, the steamer was chartered by various persons, in the intervals
of its regular work, for voyages to Cuba. On May 7, in pursuance of
a verbal arrangement between the agent of the steamship company and
the American consul, the
Adula was sent to Cienfuegos in
Cuba to bring away refugees. On arrival off Cienfuegos, she was
boarded by officers of the U.S.S.
Marblehead, who, upon
being shown the permit and the ship's papers, allowed her to
proceed, though the officers served the master with a
Page 176 U. S. 373
printed copy of the President's proclamation blockading
Cienfuegos and several ports on the north side of Cuba, and made a
memorandum on the ship's log that they had done so. She sailed from
Cienfuegos May 10 with 350 passengers, mostly women and children,
was again boarded on leaving the port, but was allowed to
proceed.
On May 16th she was chartered by a Cuban refugee to proceed to
Santiago, arrived there the following day, and returned with 200
passengers. No war ships were off Santiago at that time. She
arrived at Kingston on the 19th, and landed her passengers.
On May 21, she was again chartered to go to Cienfuegos, having a
permit from Washington, through the consul, to pass the blockade.
She reached the blockading fleet on the 23d, was boarded by a boat
from one of the vessels, and was again given permission to proceed;
was arrested upon suspicion by the Spanish authorities in the port
of Cienfuegos, but after a detention of sixty hours, was released.
She sailed again on May 26 directly for Kingston, saw no war ships
in sight, and arrived at Kingston on May 28.
After making two of her ordinary coasting voyages around
Jamaica, she was offered a further charter for Cienfuegos, but
could not obtain the permission of the American consul, who told
the master he had no authority to grant it. She left June 15 with a
letter of instructions to the captain to proceed to the fleet off
Cienfuegos, then under a public blockade, to ask permission from
them to enter the port, and if granted, to go in, and if not
granted, to return to Jamaica. She arrived at Cienfuegos June 17,
landed some provisions which had been shipped for her passengers,
found no war ships there, and sailed away on the 19th with only
ninety-eight passengers. Sixty miles S.S.E. from Cienfuegos, she
was stopped by the U.S.S.
Yankee, and an officer sent on
board. The master showed the boarding officer his instructions and
the ship's papers, as well as the passenger list; was informed that
Cienfuegos was blockaded, and that he must not enter it again. She
arrived in Kingston on June 21, proceeded around the island on her
usual coasting trip, and returned to Kingston on the 27th.
She was chartered for her last voyage June 28 by one Solis,
Page 176 U. S. 374
a Spanish subject born near Havana and living with his family at
Manzanillo. He had landed recently from Manzanillo with a cargo of
refugees. He had lived in Cuba, and at one time had been the French
consul at Manzanillo, though there was no evidence that he had ever
cooperated with the Spanish authorities during the war or rendered
aid or comfort to the Spanish forces. He had, however, a passport
from the Spanish consul to enter the cities to which he was bound
and take passengers away as refugees. He had previously been
engaged in shipping supplies to Cuban ports and returning with
passengers for Jamaica. He also carried a special personal Spanish
passport granted the year before. Such being his political
character, he entered into a charter party with the Atlas Steamship
Company under which he was at liberty to go to Manzanillo,
Santiago, and Guantanamo, and if not permitted to enter these
harbors, to return to Kingston. An option was also given to the
charterer for another similar voyage upon like terms upon
twenty-four hours' notice after arrival at Kingston. The charter
was for the conveyance of passengers from Cuban ports to Kingston
at one hundred pounds per day. Solis was entered upon the ship's
articles as supercargo. She was evidently chartered for his
personal benefit, with power to name the port which she was to
visit but with no right to interfere with the navigation of the
ship. Solis had made the same sort of trip twice before with
English schooners, and expected upon this trip to make $19,000 net
profit. He appeared to have known nothing about the previous
voyages of the
Adula, and had seen her for the first time
only about two months before. The vessel bore a passport from the
Spanish consul at Kingston, a bill of health vised by the Spanish
consul. With regard to his knowledge of the blockade at Guantanamo,
he testified as follows:
"I knew that there was a condition of war existing between
America and Spain on the 21st. They told me on board the
Adula that the blockade of Guantanamo was published on the
27th, the day before. I had not heard it before I left Kingston. I
did not know officially Guantanamo was blockaded. On board the
Adula, I heard that, on the 27th, there was issued
Page 176 U. S. 375
an order from the President of the United States declaring a
blockade of the port of Guantanamo, but I did not know it until we
arrived at Guantanamo. At Kingston I heard there were some warships
at Guantanamo, and I told Captain Forwood that the first thing I
would do would be to go to the admiral and tell him my intentions.
I did not think the papers in Kingston published the blockade. I
did not see it if they did. The people generally did not talk about
it. I read something about 'McCalla's camp.' I understood
Guantanamo was not blockaded by the United States. I heard that
marines had been landed at the entrance to Guantanamo, Caimenera --
the bay is called Caimenera -- and that the marines had possession
of the port, and that the ships were inside. I cannot tell when I
received the information that marines had been landed there and
taken possession of the point of Guantanamo or Caimenera. Perhaps
it was one or two days before. I don't know what the others knew
about a state of war existing. I understood Guantanamo was not
declared officially blockaded, although there were some vessels
there. I got that information from newspapers in Kingston, and from
those newspapers I got the information that marines had been landed
at the entrance to the bay on the east side -- they call it 'East
Point.'"
It further appeared that the American consul warned Mr. Forwood,
the agent of the ship at Kingston, of the existence of the blockade
in the following language, as stated by the agent himself:
"'Well, Forwood, I would not advise you to let the ship go; they
won't let her into Guantanamo, and they will be watching for her.'
I said to him, 'Oh, Dent, let me show you the captain's
instructions. He has got orders to go to the fleet there and ask
their permission to take some refugees.' 'Well,' he said, 'I don't
know, but they will be watching for her, and I think that Senor
Solis is a Spanish agent, carrying $300,000 in gold to buy over the
rebels in the American camp.' I told him that I had inquired about
the man, and that it was one of the usual Kingston yarns."
It also appears that Mr. Forwood knew that Mr. Solis was a
Spaniard, and had been shipping supplies to Cuban ports. After
taking on board a large supply
Page 176 U. S. 376
of coal, the
Adula left Kingston on June 28, rounded
Morant Point on the east end of the island of Jamaica, proceeded at
her usual speed toward Santiago, and sighted the blockading fleet
off that port about noon of the 29th. The captain gives as his
reason for going by the way of Santiago that he was not acquainted
with the coastline to the eastward of that port, had no large scale
chart, and therefore steered more to the westward than he should
have done because he knew the coast about Santiago, and did not
know that about Guantanamo, but it is quite as probable that it was
the presence of a number of war vessels off Santiago which sent her
to Guantanamo. She was hailed by the
Vixen within half a
mile of the entrance to the harbor of Guantanamo, brought to, and
then directed into the harbor, where several war vessels were
lying, and was shortly thereafter seized by order of Commander
McCalla of the
Marblehead.
In his testimony before the prize commissioners, Captain Yeates,
master of the
Adula, stated that he was stopped by the
Vixen about half a mile from the entrance to the bay and
permitted to proceed, and that it was not until after he had
anchored that he was acquainted with the blockade of the harbor.
One of the crew testified somewhat to the contrary, and swore
that,
"about three days before I left Kingston, I heard that
Guantanamo was blockaded; I heard it from people around the
streets; I did not see it; I heard it was in the papers; I never
heard any of the officers of the
Adula or people on board
talking about Guantanamo's being blockaded, and I don't know
exactly whether the owner or master or officers of the ship
Adula knew that Guantanamo was blockaded. I knew about it,
but I don't know anything about them. I don't know how I found it
out, but I heard it on the streets of Kingston."
He also swore
"that at that time, we went up to the mouth of the harbor, and
at that time, when we got to Guantanamo, we found the war ships
there blockading the harbor."
A small cruiser, the
Vixen,
"ran up across our bow and the captain of the cruiser asked us:
'Didn't you sight the war ships down at Santiago?' and the captain
said, 'Yes.' And the captain stopped, and he said: 'Didn't you hear
that Guantanamo was
Page 176 U. S. 377
blockaded?' and our captain said 'Yes.' Then he said, 'You can
proceed on.' I heard about the blockade in Kingston, but after
leaving Kingston, until we met the cruiser, I never heard anything
more about it."
Captain Yeates also testified that he expected to be stopped
when he approached Santiago. Mr. Solis, who had chartered the
Adula for this voyage, testified that he was told while on
board the
Adula that the blockade of Guantanamo was
published on the 27th, the day before, but that he had not heard of
it before he left Kingston, though he had heard, while in Kingston,
that there were some war ships at Guantanamo. At the time the
Adula was captured, she was searched for her ship's papers
and other documents and letters. Several letters were found, as
well as copies of a newspaper published at Kingston which spoke of
the American military and naval operations both at Santiago and
Guantanamo.
Among these extracts from "The Gleaner" of June 14, 1898, is the
following, apparently telegraphed from London:
"A dispatch boat off Santiago reports that the Americans now
hold 35 miles of the coast east of Santiago, including Guantanamo
harbor, and that 20,000 Spanish troops at Santiago are preparing to
desperately resist the Americans, who have landed 3,000 rifles,
300,000 rounds of ammunition, and large stores of provisions,"
and the following from the issue of June 25:
"On board the
Adula, which arrived from Cienfuegos this
week, there was an individual officially appointed by the Captain
General in Cuba to make arrangements in Jamaica for regularly
supplying the Spanish troops with provisions; in fact to make
Jamaica a base for Spanish purposes."
In this connection, it would seem from the report of the Bureau
of Navigation that the consul at Kingston telegraphed to Washington
that the undersecretary of the Captain General of Cuba and certain
Spanish naval officers
"came aboard the
Adula with, it is supposed, $250,000
to purchase provisions to be taken to Manzanillo for Cervera. . . .
Extensive preparations being made for shipping provisions to
Cuba."
In a letter from Captain Yeates to his parents under date of
July 13, and apparently written while the
Adula was at
Savannah, he says:
"And now to tell you dear ones how it is
Page 176 U. S. 378
or was that we got into this pickle, which has not come as any
surprise, as I have anticipated this for some time; it is I did not
think I should be in command when it happened, but it was my luck
to be, I suppose."
Speaking of the capture, he says:
"They turned the ship upside down, took my papers, measured the
coals, and took stock generally. As far as the ship is concerned,
she was on perfectly legitimate business, fetching refugees.
Whether Mr. Solis chartered the ship for that purpose alone, of
course, has to be proved, and we are now on our way to Savannah for
that purpose with a prize crew and Lieutenant Anderson in
charge."
In a postscript dated at Savannah, July 15, he says:
"We have not yet reached the town proper, for we are going
through the same performance as we did at Tampa, but I was not
caught this time, for I managed to keep my things out of the
oven."
As tending to show the good faith of this expedition, and more
particularly the owners of the
Adula, much reliance is
placed upon the letter of Mr. Forwood to Captain Yeates of June 28,
the day upon which the
Adula left Kingston, in which he
instructs him, in case he finds American warships off Guantanamo,
to stop immediately upon being signaled, and communicate to the
commanding officer the object of the voyage, and to be careful upon
his arrival
"not to interfere, or in any way make any observations or
sketches, or anything you may see or hear of, but adhere strictly
to the duties of your ship,"
and to observe the same precautions off Santiago. In this
letter, he also instructs him not to allow any provisions to leave
the ship, or to do anything which could be interpreted as a breach
of faith in being allowed to pass the blockade and enter the ports.
While this letter doubtless tends to show good faith on the part of
Mr. Forwood, still it was written with full information from Mr.
Solis that the consul had refused to give him a passport without
permission from the American authorities in Washington. That Mr.
Forwood recognized the necessity of an authority from Washington in
order to pass the blockade is shown by his letter to Captain Walker
of May 21, 1898, in reference to one of the voyages to Cienfuegos,
in which he says:
"In giving this letter to the blockade, be sure and ask
Page 176 U. S. 379
the officer if he would allow the ship to pass another voyage
without cabling to Washington."
From all the testimony in the case, it appears very clear:
That Guantanamo was actually and effectively blockaded by orders
of Admiral Sampson from June 7 until after the capture of the
Adula;
That the
Adula was chartered to a Spanish subject for a
voyage to Guantanamo, Santiago, or Manzanillo for the purpose of
bringing away refugees, and that such voyage was primarily at
least, a commercial one for the personal profit of the charterer.
During such charter, she was to a certain extent,
pro hac
vice, a Spanish vessel, and a notice to Solis of the existence
of the blockade was a notice to the vessel.
The Ranger, 6
C.Rob. 126;
The Jonge Emilia, 3 C.Rob. 52;
The
Napoleon, Blatch.Prize Cases 296. The fact of her sailing
under a Spanish passport -- in fact, an enemy's license -- is not
devoid of significance. Indeed, we have in several cases regarded
this as sufficient ground for condemnation.
The
Julia, 8 Cranch 181;
The
Aurora, 8 Cranch 203;
The
Hiram, 1 Wheat. 440;
The
Ariadne, 2 Wheat. 143. This passport gave the
Adula authority to enter the Cuban ports and take away
refugees, and it is a circumstance worthy of notice that it could
not be found when the vessel was captured. Solis acknowledged its
existence, but made no effort to account for its loss.
Both Solis himself and the
Adula had been previously
engaged in similar enterprises to the coast of Cuba, and were
chargeable with notice not only of war between the United States
and Spain, but with the fact of military and naval operations upon
the southern coast of Cuba;
The fact of such war, that the object of it was the expulsion of
the Spanish forces from Cuba, and that military and naval
operations were being carried on by us with that object in view,
must have been matters of common knowledge in Kingston, as well as
the fact that the commerce with the southern ports of Cuba was
likely to be interrupted, and that all intercourse with such ports
would become dangerous in consequence of such war.
While the mission of the
Adula was not an unfriendly
one
Page 176 U. S. 380
to this government, she was not a cartel ship, privileged from
capture as such, but one employed in a commercial enterprise for
the personal profit of the charterer, and only secondarily, if at
all, for the purpose of humanity. Her enterprise was an unlawful
one in case a blockade existed, and both Solis and the master of
the
Adula were cognizant of this fact. The direction of
the commanding officer of the
Vixen, which overhauled the
Adula off Guantanamo, to enter the harbor, cannot be
construed as a permission to violate the blockade, as such
permission would not be within the scope of his authority.
The
Hope, 1 Dod. 226;
Rogers v. The Amado, Newb. 400:
The Joseph, 8
Cranch 451;
The Benito Estenger, post, 176 U. S. 568.
That upon arrival off Santiago the blockading fleet was plainly
visible, and we think there is a preponderance of evidence to the
effect that both Solis and the master of the
Adula knew of
the actual blockade, that it was generally known in Kingston before
she sailed, and that the
Adula was chargeable with a
breach of it, notwithstanding the letter of instructions from Mr.
Forwood to Captain Yeates. As the blockade had been in existence
since June 7, it is scarcely possible that in the three weeks that
elapsed before the
Adula sailed, it should not have been
known in Kingston, which was only a day's trip from the southern
coast of Cuba, and with which it appears to have been in frequent
communication. This probability is confirmed by the direct
testimony of the sailor Morris that it was matter of common talk in
Kingston. The testimony of Solis that he did not know "officially"
that Guantanamo was blockaded, by which we are to understand that
it had not been officially proclaimed, is perfectly consistent with
a personal knowledge of the actual fact. His statement seems to be
little more than a convenient evasion. Upon the principle already
stated, his knowledge was the knowledge of the ship.
We think the facts herein stated outweigh the general statement
of the officers that they had not heard of the blockade.
3. There was no error in denying the motion of the claimant to
take further proofs. It appears from the opinion of the court
that
"the hearing upon the proceedings for condemnation was upon the
evidence afforded by the examination of the
Page 176 U. S. 381
captured crew taken upon standing interrogatories, the ship's
papers, and other evidence of a documentary character found upon
the ship by the captors. This was done in conformity to the
established rule in prize causes."
The motion to take further proof was made upon the affidavit of
Robert Gemmell, the New York agent of the company, the statement of
W. P. Forwood, the Kingston agent, annexed thereto, as well as his
own affidavit and exhibits, and upon the counter-testimony of
Anderson, Ellenberg, and Gill taken
de bene esse. Upon the
hearing of this motion, the court considered the allegations of
Forwood, attached to Gemmell's affidavit, as if Forwood had
testified upon depositions regularly taken, giving due weight to
the same in connection with other evidence in the case, and was of
opinion that the evidence as it stood was not susceptible of any
satisfactory explanation, and comparing the proof proposed to be
brought forward with that already in the case, came to the
conclusion that the legal effect of the facts before the court
could not be varied by the explanation offered. The motion was
denied. In considering this case, we have also given effect to
these affidavits, and have come to the conclusion that if they are
to be taken as true, and the further proofs, if taken, would
support them, they would not change our opinion with respect to the
affirmance of the decree.
If an examination of the ship's papers and of the crew, taken
in preparatorio, upon which the cause is first heard in
the district court, make a case for condemnation, the order for
further proof is, as stated in
The Grey
Jacket, 5 Wall. 342,
72 U. S. 368,
always made with extreme caution, and only where the interests of
justice clearly require it. If the ship's papers and the testimony
of the crew do not justify an acquittal, it is improbable that a
defense would be established by further proof, and as the interest
of all parties require that prize causes be quickly disposed of, it
is only where the testimony
in preparatorio makes a case
of grave doubt that the court orders the taking of further proofs.
The Pizarro, 2
Wheat. 227;
The Amiable
Isabella, 6 Wheat. 1,
19 U. S. 77;
Benedict's Adm'y sec. 512a; Story on Prize Courts 17.
Page 176 U. S. 382
It was said by Sir William Scott in
The Sarah, 3 C.Rob.
330, that
"it has seldom been done except in cases where there has
appeared something in the original evidence which lays a suggestion
for prosecuting the inquiry farther. In such cases, the court has
allowed it; but when the matter is foreign, and not connected with
the original evidence of the cause, it must be under very
particular circumstances indeed that the court will be induced to
accede to such an application; because, if remote suggestions were
allowed, the practice of the court would be led away from the
simplicity of prize proceedings, and there would be no end to the
accumulation of proof that would be introduced in order to support
arbitrary suggestions."
These remarks are specially pertinent to the offer of further
proof that, while Solis owed allegiance to the Queen of Spain, yet
that he left Cuba soon after the war broke out, took no part in the
hostilities, but, on the contrary, had done all in his power while
he remained in Cuba to assist citizens of the United States
residing there; had sided with the natives of Cuba, and was
desirous that a government should be established in the island
under the auspices of the United States. As was observed in the
very satisfactory opinion of the district judge in this case, this
evidence was altogether irrelevant to the case of the
Adula, and was, to a certain extent, a contradiction of
his testimony before the prize commissioners that he was a loyal
subject of Spain, bore a Spanish passport, and carried a bill of
health vised by the Spanish consul at Kingston. It would throw the
whole practice in prize cases into confusion if the testimony,
taken
in preparatorio, when the facts are fresh in the
minds of the witnesses, were subject to be contradicted by the same
witnesses after its weak points had been developed. It was said by
Mr. Justice Story in
The Pizarro, 2
Wheat. 227:
"Nor should the captured crew have been permitted to be
reexamined in court. They are bound to declare the whole truth upon
their first examination, and if they then fraudulently suppress any
material facts, they ought not to be indulged with an opportunity
to disclose what they please, or to give color to their former
statements after counsel has been taken, and they know the pressure
of the cause. Public policy and justice
Page 176 U. S. 383
equally point out the necessity of an inflexible adherence to
this rule."
Upon the whole, we think the decree of the district court was
correct, and it is therefore
Affirmed.
*
"Atlas Steamship Company"
"Jamaica Agency, June 28, 1898"
"Captain Yeates, S.S.
Adula."
"Dear Sir: I enclose herein a copy of the agreement under which
your vessel is proceeding on, and on board the ship will be the
charterer, to whom I now introduce you, Mr. Jose R. Solis, and I
ask you to show him every attention on the voyage."
"You will see by a perusal of the agreement that you are on a
voyage wholly and solely for the conveyance of refugees from the
ports named to Kingston."
"On your arrival at Guantanamo, to which port you will proceed
direct, you will find, no doubt, American warships off the port.
You will, when signaled to, stop immediately and communicate to the
commanding officer the voyage that you are on, and, in fact you can
show him these sailing orders, and I do not think that the
commanding officer will make any trouble whatever to your
continuing the voyage into the port."
"You must be careful on your arrival there not to interfere or
in any way make any observation or sketches or anything that you
may see or hear of, but adhere strictly to the duties of your
ship."
"At Guantanamo, it is likely there may be some difficulty in
obtaining a pilot, and if the commanding officer gives you
permission to proceed, it is just possible that he may be able to
tell you where you can obtain the services of a pilot to go
in."
"From Guantanamo you will proceed to off Santiago. Here you will
meet the other fleet, and carry the same instructions out with them
as I have mentioned to you in reference to Guantanamo. The
charterer is telegraphing at once to Santiago for a pilot to come
off to meet the ship if permission is granted to pilot your ship
into the port."
"From Santiago you will proceed to Manzanillo, and from thence
back to Kingston. The charterer, Mr. Solis, may order you direct
from Guantanamo to Kingston or from Santiago to Kingston, and in
such a case you will follow out his orders, which he will give you
in writing. He has the option of going to the three ports, but it
may be convenient for him to go to only one or even two. The boat's
crew that is mentioned in the appendix of this agreement you will
provide, but it will be necessary for you to have the ensign in the
stern so as to show your nationality."
"You will not allow any provisions of any sort to leave your
ship at any of the ports or to do anything that is contrary to the
laws of the country or that may be interpreted as a breach of faith
in being allowed to pass the blockade and enter the ports, and I
must ask you not to permit any of your crew to land at any of the
ports, and only yourself, if necessary, to visit the British
consul."
"Wishing you a pleasant voyage, I am sir,"
"Yours faithfully,"
"(S'g'd) W. Peploe Forwood,
Gen. Ag't, Jca."
MR. JUSTICE SHIRAS dissenting:
I cannot concur in the judgment of the court in this case, and
shall state my views briefly, without entering at length upon a
discussion in support of them.
By a joint resolution of the Senate and House of Representatives
of the United States, approved April 20, 1898, it was declared:
"That the people of the Island of Cuba are, and of right ought
to be, free and independent. . . . 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. . . . 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 these resolutions into effect. . . . That the
United States hereby disclaims any disposition or intention to
exercise sovereignty, jurisdiction, or control over said island
except for the pacification thereof, and asserts its determination,
when that is accomplished, to leave the government and control of
the island to its people."
30 Stat. 738.
By an Act approved April 25, 1898, Congress declared
"That war be, and the same is hereby, declared to exist, and
that war has existed since the twenty-first day of April, A.D.
1898, including said day, between the United States of America and
the Kingdom of Spain."
30 Stat. 364, c. 189.
On April 22, a blockade of the north coast of Cuba between
Cardenas and Bahia Honda, and of Cienfuegos on the south
Page 176 U. S. 384
coast, was declared by the President, and on June 27 the
President by proclamation gave notice that the Cuban blockade had
been extended to include all the ports on the southern coast
between Cape Frances and Cape Cruz. Neither of these proclamations
included the port of Guantanamo, nor was any blockade of that port
ever proclaimed by the President.
The
Adula was a British vessel, and on June 28 she left
the British port of Kingston, in the Island of Jamaica, bound,
according to the instructions from the agent of the Atlas Steamship
Company, the owners, to Captain Yeates, the master of the vessel,
directly to the port of Guantanamo. Among the instructions found on
the vessel when she was captured were the following:
"I enclose herein a copy of the agreement under which your
vessel is proceeding on, and on board the ship will be the
charterer, to whom I now introduce you, Mr. Jose R. Solis, and I
will ask you to show him every attention on the voyage."
"You will see by a perusal of the agreement that you are on a
voyage wholly and solely for the conveyance of refugees from the
ports named to Kingston."
"On your arrival at Guantanamo, to which port you will proceed
direct, you will find, no doubt, American warships off the port.
You will, when signaled to, stop immediately and communicate to the
commanding officer the voyage that you are on, and in fact you can
show him these sailing orders, and I do not think that the
commanding officer will make any trouble whatever to your
continuing the voyage into the port. You must be careful on your
arrival there not to interfere or in any way make any observations
or sketches or anything you may see or hear of, but adhere strictly
to the duties of your ship. At Guantanamo it is likely there may be
some difficulty in obtaining a pilot, and if the commanding officer
gives you permission to proceed, it is just possible that he may be
able to tell you where you can obtain the services of a pilot to go
in."
On the afternoon of the 29th June, the
Adula approached
the harbor of Guantanamo, and there met the United States war
vessel
Vixen. It was testified by Captain Yeates
before
Page 176 U. S. 385
the prize commission as follows:
"We passed one vessel. I think it was the
Vixen. He
fired a gun. I stopped immediately, and he told me to proceed. He
did not stop his engines at all; just steamed right on by. Captain
Forwood told me I should see vessels of war around there. When the
Vixen hailed me, we were about half a mile from the entrance of the
bay, and about four miles from where we anchored."
This evidence was not contradicted, and, in respect to the
permission to proceed, was corroborated by one of the crew of the
Adula.
After the vessel had entered and anchored in the bay, she was
seized by the
Marblehead, a warship of the United States,
which was lying inside the bay, and was sent to Savannah, where, on
July 28, a decree of condemnation was entered against her. No goods
of a contraband character were on the vessel.
Upon these admitted facts, there was no duly constituted
blockade of Guantanamo existing when the
Adula sailed for
and entered that port.
On the contrary, by the successive Presidential proclamations of
blockade, that port was left free and open for the entrance of
neutral vessels. Indeed, it may be fairly said that, in the special
circumstances of our war with Spain, those proclamations were
intended to permit, if not to invite, the continuance of commerce
in goods, not contraband, in all the Cuban ports not included
within the limits defined. The United States were not carrying on
warlike operations against the people of Cuba. They were declared,
by the joint resolution of the two houses of Congress, to be free
and independent, and the government of Spain was called upon to
relinquish its government, and to withdraw its land and naval
forces from Cuba and Cuban waters. It was notorious that great
misery and destitution had been caused among the inhabitants by the
military operations of the Spanish army in a long and fruitless
effort to subdue the revolutionary movement. Indeed, that condition
of the people of Cuba was one of the principal inducements to the
United States to intervene on their behalf.
It may be well here to refer to the message of the President
Page 176 U. S. 386
to Congress, of the date of April 11, 1898, wherein will be
found the following statements:
"Our people have beheld a once prosperous community reduced to
comparative want, its lucrative commerce virtually paralyzed, its
fields laid waste, its mills in ruins, and its people perishing by
tens of thousands from hunger and destitution. . . . The policy of
devastation and concentration, inaugurated by the Captain General's
bando of October 21, 1896, in the province of Pinar del
Rio, was thence extended to embrace all of the island to which the
power of the Spanish arms was able to reach by occupation or by
military operations. The peasantry, including all dwelling in the
open agricultural interior, were driven into the garrison towns or
isolated places held by the troops."
And, after reciting the fact that he had made an appeal to the
American people to furnish succor to the starving sufferers in
Cuba, the President concluded:
"In view of these facts and of these considerations, I ask the
Congress to authorize and empower the President to take measures to
secure a full and final termination of hostilities between the
government of Spain and the people of Cuba, and to secure in the
island the establishment of a stable government, capable of
maintaining order and observing its international obligations,
insuring peace and tranquillity and the security of its citizens as
well as of our own, and to use the military and naval forces of the
United States as may be necessary for these purposes. And in the
interest of humanity and to aid in preserving the lives of the
starving people of the island, I recommend that the distribution of
food and supplies be continued, and that an appropriation be made
out of the public treasury to supplement the charity of our
citizens."
The policy of our government in respect to the rights of
neutrals was further made to appear in the President's proclamation
of April 26, 1898, declaring our adhesion to the rules of the
Declaration of Paris, whereby important modifications, in
recognition of the rights of neutrals and of principles of humanity
were introduced into international law.
What was more natural, then, than that our government
Page 176 U. S. 387
would approve all efforts to furnish food to those famishing
people, and to aid them in escaping from the seat of war? It
appears that the
Adula, after the declaration of war, had
made several voyages to Cuban ports, with the express permission of
the American consul at Kingston; had brought away several hundred
refugees, chiefly women and children, and was engaged in a similar
errand when seized.
It is however claimed that an actual blockade of Guantanamo had
been established by Admiral Sampson early in June, which was in
existence at the time the
Adula entered that port, and
that her master had knowledge of such blockade before leaving
Kingston.
To declare a blockade effective against neutrals not carrying
contraband goods is said by all the authorities to be one of the
highest acts of sovereignty, not to be resorted to except for
reasons based on well known principles of modern warfare, and to be
proclaimed so as to give full notice to friendly and neutral
nations.
As was said by this Court, through Mr. Justice Grier, in
Prize
Cases, 2 Black 665:
"Neutrals have a right to challenge the existence of a blockade
de facto, and also the authority of the party exercising
the right to institute it. They have a right to enter the ports of
a friendly nation for the purposes of trade and commerce, but are
bound to recognize the rights of a belligerent, engaged in actual
war, to use this mode of coercion for the purpose of subduing the
enemy. . . . That the President, as the executive chief of the
government and commander-in-chief of the army and navy, was the
proper person to make such notification has not been and cannot be
disputed."
So it was held by Sir William Scott, in
The Henrick and
Maria, 1 C.Rob. 146, that
"notification of a blockade is an act of high sovereignty, and
not to be extended by those employed to carry it into execution. .
. . A declaration of blockade is a high act of sovereignty, and a
commander of a King's ship is not to extend it."
"Where a blockade has been declared by the government, the
commander of the blockading squadron has no discretionary
Page 176 U. S. 388
power to extend its limits. If he prohibits neutral ships from
entering ports not embraced in the terms of the blockade he was
appointed to enforce, the warning is illegal, and no penalty is
incurred by the neutral master by whom it is disregarded."
1 Duer Ins. 647, sec. 23.
"A declaration of blockade is a high act of sovereignty, and it
is usually made directly by the government to which the blockading
squadron belongs. A blockade is, however, in some cases, declared
by an officer of a belligerent power, and when so declared it will
affect the subjects of neutral nations as far as it is authorized,
or adopted and ratified, by his government. The implied authority
in this respect vested in a naval commander is much greater at a
distance from his government than when he is near it. To affect
neutral nations, it must be laid by competent authority, and they
are affected only in the extent to which it is so laid."
1 Phillips on Insurance 466.
As it does not appear that the government delegated any
authority to Admiral Sampson to declare a blockade of the port of
Guantanamo, but declared a limited and specified blockade of
portions of the Cuban coast by Presidential proclamation, leaving
the port in question free and open to neutral commerce in goods not
contraband, it follows that for Admiral Sampson to declare a
blockade of such port would have been, on his part, an effort to
defeat the policy of his government, which, as we have seen, was
shown, by the proclamations and messages of the President, to have
intended to leave open a large portion of the Cuban coast, and
ports included therein, to neutral and friendly commerce, designed
to furnish food to our starving allies, and to enable their women
and children to flee from the oppression under which they were
suffering.
Moreover, it does not appear that Admiral Sampson claimed or
exercised any right to declare a blockade of Guantanamo. Doubtless
he occupied that bay and its adjacent waters with his war vessels,
and that gave him a right to visit and search even neutral vessels
to discover whether they carried contraband goods. But this did not
warrant any vessel of his
Page 176 U. S. 389
squadron to seize a neutral ship, not carrying contraband goods,
when entering a port in effect left free by the proclamation of the
President.
But even if it were conceded that the American commander could
establish, without proclamation, a valid actual blockade of the
port in question, it would still be true, in my opinion, that the
seizure of the
Adula was contrary to well established
principles of international law.
When a blockade of a given coast or port of one belligerent has
been declared by the sovereign power of another, all vessels of
neutral or friendly nations are thereby supposed to be visited with
notice of such blockade, and it has been held that, if they sailed
for the blockaded port with the intent to enter it, and approach it
for that purpose, they are subject to seizure and condemnation, and
that they cannot even approach the blockaded port for the purpose
of making inquiries of the blockading vessels, since such liberty
might lead to attempts to violate the blockade under pretext of
approaching for the purpose of making such inquiries.
The Cheshire,
3 Wall. 231.
But in the case of a blockade established by a naval officer,
acting upon his own discretion, without governmental proclamation,
neutrals are not visited with implied notice of the existence of
such a blockade, and they may rightfully sail for such a blockaded
port, and if, when approaching it, armed vessels are seen to be in
its immediate neighborhood, they may apply to such vessels for
information and for leave to enter without subjecting themselves to
capture. The duty of the blockading squadron, if objection exists
to permitting neutral vessels to enter, is to warn them off. If,
after such warning, the neutral vessels, disregarding it, attempt
to enter, they are liable to seizure.
As was said in the case of
The
Circassian, 2 Wall. 150, which was a case where the
blockade had been proclaimed by the American government:
"There is a distinction between simple and public blockades
which supports this conclusion. A simple blockade may be
established by a naval officer, acting upon his own discretion or
under direction of superiors, without governmental notification,
while a public blockade is
Page 176 U. S. 390
not only established in fact, but is notified by the government
directing it to other governments. In the case of a simple
blockade, the captors are bound to prove its existence at the time
of capture, while in the case of a public blockade, the claimants
are held to proof of discontinuance in order to protect themselves
from the penalties of attempted violation. The blockade of the
rebel ports was and is of the latter sort. It was legally
established and regularly notified by the American government to
the neutral governments. Of such a blockade it was well observed by
Sir William Scott: 'It must be conceived to exist till the
revocation of it is actually notified.' The blockade of the rebel
ports therefore must be presumed to have continued until
notification of discontinuance."
In
Fitzsimmons v. Newport Ins.
Co., 4 Cranch 185, it was held that the fact of
clearing out for a blockaded port is, in itself, innocent unless
accompanied by other incidents; that the offense consists in
persisting in attempting to enter the interdicted port after having
been warned, and it was said by Chief Justice Marshall:
"The right to treat the vessel as an enemy is declared by Vattel
to be founded on the attempt to enter, and certainly this attempt
must be made by a person knowing the fact. But this subject has
been precisely regulated by the treaty between the United States
and Great Britain, which was in force when this condemnation took
place. That treaty contains the following clause:"
" And whereas it frequently happens that vessels sail for a port
or place belonging to an enemy without knowing that the same is
either besieged, blockaded, or invested, it is agreed that every
vessel so circumstanced may be turned away from such port or place,
but she shall not be detained, nor her cargo, if not contraband, be
confiscated, unless, after notice, she shall again attempt to
enter; but she shall be permitted to go to any other port or place
she may think proper."
"This treaty is conceived to be a correct exposition of the law
of nations; certainly it is admitted by the parties to it, as
between themselves, to be a correct exposition of that law, or
Page 176 U. S. 391
to constitute a rule in the place of it. Neither the law of
nations nor the treaty admits of the condemnation of the neutral
vessel for the intention to enter a blockaded port, unconnected
with any fact."
The distinction between a blockade declared by a government and
a blockade
de facto is thus stated by Chancellor Kent:
"A notice to a foreign government is a notice to all the
individuals of that nation, and they are not permitted to aver
ignorance of it, because it is the duty of the neutral government
to communicate the notice to their people."
"In the case of a blockade without regular notice, notice in
fact is generally requisite, and there is this difference between a
blockade regularly notified and one without such notice; that, in
the former case, the act of sailing for the blockaded place with an
intent to evade it, or to enter contingently, amounts, from the
very commencement of the voyage, to a breach of the blockade; for
the port is to be considered as closed up, until the blockade be
formally revoked, or actually raised, whereas, in the latter case
of a blockade
de facto, the ignorance of the party as to
its continuance may be received as an excuse for sailing to the
blockaded place, on a doubtful and provisional destination."
It should be noted that the American cases cited, on behalf of
the captors, to the effect that sailing from a neutral port to a
blockaded port is in itself a violation of the blockade were cases
in which there had been a Presidential proclamation, of which
neutral vessels were bound to take notice.
The
Circassian, 2 Wall. 135;
The
Admiral, 3 Wall. 603.
It should further be considered that in the President's
proclamation of April 22, 1898, establishing the extent of the
blockade, there was contained the following provision:
"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 endorse on her register the fact and
the date of such warning where such instrument was made, and if the
same vessel shall again
Page 176 U. S. 392
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."
30 Stat. 1769.
Of course, if the blockade of Guantanamo was illegal as
inconsistent with the terms and intent of the President's
proclamations, no consideration of the evidence regarding the
movements of the vessel is called for, and it is a clear case for
restitution. In such a case, no importance can be ascribed to any
supposed notice to the owners of the ship. The admiral's want of
power to override the policy and intentions of the government
cannot be supplied by imputing to the vessel a knowledge of an
actual occupation of the port by armed vessels of the United
States. Such occupation would be no reason why neutral ships, not
carrying contraband cargo, might not fearlessly approach and enter
the harbor.
If, however, the other view be taken -- namely, that it was
competent for the admiral, of his own motion, to establish a
blockade -- still as we have seen, neutral vessels were entitled,
on principle and authority, to a warning by the blockading
squadron, and could only become lawful prize by disregarding the
warning, and renewing the attempt to enter. Mere knowledge by the
neutral vessel that vessels of war occupied the harbor and adjacent
waters would not constitute notice or knowledge of a blockade; she
would be entitled to an actual warning.
Maryland
Ins. Co. v. Woods, 6 Cranch 49.
The
Adula received no such warning. When she approached
the harbor, she was hailed by a war vessel, the
Vixen, and
was told to proceed. If, by telling the
Adula to proceed,
the commander of the
Vixen is to be understood as taking
charge of the
Adula as engaged in an attempt to break the
blockade, there was, of course, no warning. If, what seems the
natural import of the language, the commander of the
Vixen
gave the neutral vessel permission to enter the harbor, not only
was there no warning, but such permission protected her from the
subsequent seizure after she had entered and anchored in the
harbor.
Page 176 U. S. 393
But it is contended that the
Adula had actual knowledge
of the existence of the blockade when she sailed from Kingston, and
that such knowledge deprived her of the right to a warning.
As already said, if the blockade had been regularly proclaimed
by the United States government, the
Adula, as a neutral
vessel, if aware of the blockade, could not lawfully have sailed
from Kingston and approached Guantanamo with an intention to enter
it unless intercepted. It is well settled that in the case of a
proclaimed blockade, the neutral vessel may not, with a knowledge
of the proclamation, approach the prohibited port, even for the
purpose of inquiring from the vessels in occupation whether the
blockade was still in existence. The reason given for such a
decision is that it would seriously affect the efficiency of the
blockade if ships were permitted to approach the blockaded port on
pretext of inquiry, and thus be enabled to slip in if there was a
momentary absence of a blockading vessel.
But different principles prevail in the case of a blockade
de facto. Then, neutral vessels may, even with knowledge
that such a blockade had been in existence, sail for such port with
a clear right to inquire whether the blockade was still in force,
and to enter the port if it is found not to be actually blockaded.
The reason for the distinction given in the authorities is that a
proclaimed blockade is deemed to continue until the blockade is
raised by a declaration of the power that established it. But a
simple or
de facto blockade lasts only so long as the
blockading squadron chooses to maintain it by a present and actual
force. The reasons for constituting such a blockade may cease at
any time, and a neutral vessel, on a peaceful voyage, and not
carrying a contraband cargo, may lawfully sail for such a port,
and, if when she reaches, it the blockade continues, is entitled to
a warning.
Thus, far it has been assumed that the
Adula had actual
knowledge of the blockade when she sailed from Kingston, and it has
been shown that, in the case of a blockade of the character that
this one is claimed to have been -- namely, one created by and
depending on the will of the commander of
Page 176 U. S. 394
the fleet -- the neutral was entitled to a warning whether she
had or not previous information that a blockade had existed some
time before.
But, in point of fact, as I read the evidence, the
Adula had not such previous knowledge, but approached
Guantanamo Bay, within the terms of the President's proclamation,
without notice or knowledge of the establishment of a blockade, and
was therefore entitled to be "duly warned by the commander of the
blockading forces."
Captain Yeates, Purser Williamson, and Solis testified in direct
terms that they had no knowledge or information before sailing that
Guantanamo was blockaded. The only testimony to the contrary was
that of Morris, a colored seaman, who said that about three days
before he left Kingston, he heard that Guantanamo was blockaded. He
does not give the source of his information or pretend that he made
known the matter to the owners or to the officers of the vessel.
Probably all he meant was that he had heard that the United States
fleet was at Guantanamo. The other facts plainly corroborate the
captain's testimony. Consider the direction contained in the
instructions given the captain, and shown in the record:
"On your arrival at Guantanamo, to which port you will proceed
direct, you will find, no doubt, American warships off the port.
You will, when signaled to, immediately stop and communicate to the
commanding officer the voyage you are on, and, in fact you can show
him these sailing orders, and I do not think that the commanding
officer will make any trouble whatever to your continuing the
voyage into the port. . . . At Guantanamo it is likely there may be
some difficulty in obtaining a pilot, and if the commanding officer
gives you permission to proceed it is just possible that he may be
able to tell you where you can obtain the services of a pilot to go
in."
Such instructions are not consistent with knowledge on the part
of the general agent who gave them that a blockade was actually in
force, nor with any intention to violate it.
So, too, the conversation that Solis, the charterer, had with
the United States consul at Kingston, in which he sought to
Page 176 U. S. 395
obtain a passport for the voyage, and in which he informed the
consul of the object of the voyage and of his intention to ask
permission or the American admiral to enter the port, shows that no
clandestine or improper voyage was intended. A person designing to
violate a blockade assuredly would not inform the consul of the
nation whose vessels were maintaining the blockade of the time and
circumstances of his voyage.
Solis further testified that he first heard of the blockade on
the
Adula on June 28, that he then heard that, on the 27,
there was issued an order of the President of the United States
declaring a blockade, etc. But as it is not pretended that the
President had issued any such proclamation, it is evident that
Solis was speaking of a mere rumor, and he immediately added:
"I understood Guantanamo was not declared officially blockaded,
although there were some vessels there. I got that information from
newspapers in Kingston, and from those newspapers I got the
information that marines had been landed at the entrance to the bay
on the east side."
It is stated in the opinion of the majority that the American
consul warned Mr. Forwood, the agent of the ship at Kingston, of
the existence of the blockade. This statement is based on Forwood's
recital of what passed between the consul and himself, in the
following language: "Well, Forwood, I would not advise you to let
the ship go. They won't let her into Guantanamo, and they will be
watching for her." So far from this language importing a
notification of an existing blockade, it rather implies the
contrary -- that the voyage would be fruitless because the consul
believed that the ship would not be allowed to enter the destined
port. It certainly cannot be regarded as an official notice of an
existing blockade, as is claimed in the argument for the captors.
The consul was right, in the existing circumstances, in declining
to give the permit desired, but he had no power to declare a port
to be in blockade, nor did he pretend to do so.
So far, therefore, as respects the matters urged as evidence
that the
Adula, her owners, master, or charterer, knew, or
had any good reason to believe, that at the time she sailed,
there
Page 176 U. S. 396
was an existing blockade of the port of Guantanamo, they seem to
me to be "trifles light as air."
What this Court said, through Mr. Justice Grier, in the
Prize Case, 2
Black 635, may well be repeated here:
"All reasonable doubts should be resolved in favor of the
claimants. Any other course would be inconsistent with the high
administration of the law and the character of a just
government."
Some makeweights are attempted to be thrown into the scales by
adverting to the fact that Solis had passports from the Spanish
consul, and the following cases are cited in the majority opinion.
The Julia, 8
Cranch 181;
The Aurora, 8
Cranch 203;
The Hiram, 1
Wheat. 440, and
The Ariadne, 2
Wheat. 143.
The case of
The Julia was thus stated by Mr. Justice
Story:
"It is sufficient to declare . . . that we hold that the sailing
on a voyage, under the license and passport of protection of the
enemy in furtherance of his views or interests, constitutes such an
act of illegality as subjects the ship and cargo to confiscation as
prize of war."
Surely; but in the present case there was no license or passport
of protection for the voyage in furtherance of the views and
interests of the enemy, but the obnoxious instrument was a personal
passport to Solis, dated April 13, 1897, more than a year before
the war, in the following terms:
"Don Jose R. Solis Velasquez, native of Santiago de las Vegas,
Province of Havana, by profession a merchant, dwells in Marina
Street, No. ___, and resides habitually in that ward and at that
number."
Were these personal passports, one given long before the war and
the other a mere permission to enter cities on the island at all
similar to the case of
The Julia, where, as the opinion in
that case shows,
"the master was a part owner of the vessel and cargo, and the
regular depositary of all the
papers connected with the
voyage. It is utterly incredible that he should not recollect,
on his examination, the existence of these British documents. They
were put on board for the
special safeguard and security of the
vessel and cargo."
In the case of
The Aurora, a formal passport or permit
had
Page 176 U. S. 397
been given by the British consul to
"the American ship
Aurora, William Augustus Pike,
master, burthen 257 47/95 tons, now lying in the harbor of
Newburyport, etc., . . . requesting all officers commanding His
Majesty's ships of war, or private armed vessels belonging to
subjects of His Majesty, not only to suffer the said
Aurora to pass without molestation, but also to extend to
her all due assistance and protection in the prosecution of her
voyage to the West Indies,"
etc. The judgment of the court was thus stated:
"The acceptance and use of an enemy's license on a voyage to a
neutral port, prosecuted in furtherance of the enemy's avowed
objects, is illegal, and subjects vessel and cargo to
confiscation."
In the case of
The Hiram, the vessel was sailing under
protection of an enemy's license to the vessel, and this was held
to have been in principle an offense of trading with the enemy. In
the case of
The Ariadne, the vessel was sailing with a
license or passport of protection from the enemy's admiral.
It is scarcely necessary to say that a personal passport given
to Solis, a Cuban, more than a year before the war, cannot be
regarded as intended as a passport or protection to a British
vessel, sailing under a British flag, on an errand friendly to the
United States and their allies. And as respects the permission
Solis had obtained from the Spanish consul to enter the cities to
which he was bound, "and take passengers, refugees," such
permission was in furtherance of humanity, and not of any warlike
object or interest.
The conclusions reached may be summarized thus:
(1) The port of Guantanamo was intentionally and as matter of
policy left open and free to neutral commerce, not contraband, by
the President's proclamations, and
The Adula had a clear
right to sail for and enter that port even if aware that war
vessels of the United States were in occupancy of the port. Such
war vessels would, of course, have a right to prevent the
Adula from entering the port if such entry would interfere
with any military operation in hand.
(2) It was not competent for the commander of the fleet to
extend the proclaimed blockade so as to include a port exempted by
the President's proclamation, and to thus make prize
Page 176 U. S. 398
of war a neutral vessel approaching such port on a peaceful
errand.
(3) If an immediate exigency -- and none such is shown to have
existed in the present case -- justified the admiral of the United
States in prohibiting the entrance of neutral vessels, sound
principles of international law required that such vessels should
be warned on approaching the port, and they could not be seized as
lawful prize unless they disregarded the warning and attempted
again to enter.
This is no time in the history of international law for the
courts of the United States, in laying down rules to affect the
rights of neutrals engaged in lawful commerce, to extend and apply
harsh decisions made a hundred years ago, in the stress of the
bitter wars then prevailing, when the rights of the comparatively
feeble neutral states were wholly disregarded. Still less should
our courts, as it seems to me was done in this case by the district
court, adopt strained and unnatural constructions of facts and
circumstances in order to subject vessels of nations with whom we
are at peace to seizure and condemnation.
I am authorized to say that MR. JUSTICE GRAY, MR. JUSTICE WHITE,
and MR. JUSTICE PECKHAM concur in this dissent.