No general rule of international law exempts mail ships from
capture as prize of war.
A Spanish mail steamship, carrying mail of the United States
from New York to Havana at the time of the breaking out of the
recent war with Spain, was not exempt from capture by the sixth
clause of the President's proclamation of April 26, 1898.
Page 176 U. S. 536
At the time of the breaking out of the recent war with Spain, a
Spanish mail steamship was on a voyage from New York to Havana,
carrying a general cargo, passengers and mails, and having mounted
on board two breech-loading Hontoria guns of nine centimeter bore,
and one Maxim rapid-firing gun, and having also on board twenty
Remington rifles and ten Mauser rifles, with ammunition for all the
guns and rifles, and thirty or forty cutlasses. Her armament bad
been put on board more than a year before, for her own defense, as
required by her owner's mail contract with the Spanish government,
which also provided that in case of war, that government might take
possession of the vessel with her equipment, increase her armament,
and use her as a war vessel, and, in these and other provisions,
contemplated her use for hostile purposes in time of war.
Held that she was not exempt from capture as prize of war
by the fourth clause of the President's proclamation of April 26,
1898.
The statement of the case will be found in the opinion of the
court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This was a libel for the condemnation of the steamship
Panama as prize of war, and was heard in the district
court upon the libel, the claim of the master in behalf of the
owner of the vessel, and the depositions
in preparatorio
of her master, her supercargo, and her chief engineer, which showed
the following state of facts:
The
Panama was a steamship of 1432 tons register; was
owned by the Compania Transatlantica, a corporation of Barcelona in
Spain; sailed under the Spanish flag; had a commission as a royal
mail ship from the government of Spain; carried a crew of 71 men
all told, who had been shipped at different times at Havana, and
her usual course of voyage included the ports of New York and
Havana, and Progreso, Vera Cruz, and other Mexican ports, with
general cargoes, passengers, and mails.
Page 176 U. S. 537
Her last voyage began in Havana, for a round trip by way of New
York, and was to have ended in Vera Cruz. She sailed from New York
at half past two o'clock in the afternoon of April 20, 1898, with a
clearance from the customhouse at that port for Havana, Progreso,
and Vera Cruz, having on board the United States mails, twenty-nine
passengers (all Spaniards except one Frenchman), and a general
cargo, the produce or manufacture of the United States, shipped at
New York and to be delivered at the risk of the shippers to
consignees at those ports. She pursued the usual course of ships
bound southward along the coast until she passed Alligator Reef
light on the coast of Florida, and then bore away for Havana, and
sighted the Cuban coast on the morning of April 25, and on that
day, when about twenty-five miles from Havana, was captured by the
United States ship of war
Mangrove, and was sent in charge
of a prize crew into Key West. She had no military or naval officer
on board, made no resistance to the capture, and delivered all her
papers and mails to the prize master.
There were mounted on board the
Panama at the time of
her capture, five guns: two breech-loading Hontoria 9-centimeter
guns, one on each side of the ship, with 30 rounds of shot for
each; one Maxim rapid-firing gun, on the bridge, with ammunition,
and two signal guns, one on each side of the pilot house, with
ammunition. She also had on board about twenty Remington rifles and
ten Mauser rifles, with ammunition for each, and about thirty or
forty cutlasses. The cannon had been put on board about three years
before, and the small arms and ammunition had been on board a year
or more. She was so armed in accordance with a contract with the
Spanish government, which required all the mail steamships of the
company to be armed, and article 26 of which was as follow:
"Every ship shall take on board, for her own defense, the
following armament:"
"Two Hontoria 9 centimeter guns, with powder and ammunition for
30 shots for each piece; twenty Remington rifles, with 100 rounds
apiece, and bayonet or sword-bayonet, and twenty cutlasses."
The master of the
Panama moved the court to allow
further
Page 176 U. S. 538
proof upon the matters set forth in two test affidavits, filed
by leave of the court, in which he testified more distinctly that
the mounted guns and small arms which the
Panama carried
had not been shipped for the purpose of war or in expectation of
hostilities between the Spanish government and the United States,
but were taken on board pursuant to the requirements of that
contract, and also testified that the Spanish government had never
taken possession of the
Panama under the terms of the
contract, and that, until the capture, he and his officers were
ignorant of the existence of the war between Spain and the United
States and of any blockade of the port of Havana. And he asked
leave to submit to the court the whole contract, as contained in a
printed book, which was in the chart room of the
Panama
and in the custody of the prize master, and which has since been
sent up to this Court as one of the exhibits in the cause.
By that contract, concluded between the Spanish government and
the Compania Transatlantica on November 18, 1886, and drawn up and
printed in Spanish, the company bound itself to establish and to
maintain for twenty years various lines of mail steamships, one of
which included Havana, New York, and other ports of the United
States and of Mexico, and the Spanish government agreed to pay
certain subsidies to this company and not to subsidize other
steamship lines between the same points. Among the provisions of
the contract, besides article 26, above quoted, were the
following:
By article 25, new ships of the West Indian line must be of
iron, or of the material which experience may prove to be the best;
must have double bottomed hulls, divided into watertight
compartments, with all the latest improvements known to the art of
naval construction, and "their deck and sides shall have the
necessary strength to support the artillery that they are to
mount." All the ships of that line must have a capacity for 500
enlisted men on the orlop deck and a convenient place for them on
the main deck. The company, when beginning to build a new ship,
shall submit to the minister of the colonies her plans as prepared
for commercial and postal service;
"the minister shall cause to be studied the measures
Page 176 U. S. 539
that should be taken looking to the rapid mounting in time of
war of pieces of artillery on board of said vessel, and may compel
the company to do such strengthening of the hull as he may deem
necessary for the possible mounting of that artillery; said
strengthening shall not be required for a greater number than six
pieces whose weight and whose force of recoil do not exceed those
of a piece of fourteen centimeters."
The plans of ships already built shall be submitted to the
Minister of Marine, in order that he may cause to be studied the
measures necessary to adapt them to war service, and any changes
that he may deem necessary or possible for that end shall be made
by the company. But in both old and new ships, the changes proposed
by the ministry must be such as not to prejudice the commercial
purposes of the vessels.
By article 35, the vessels, with their engines, armaments, and
other appurtenances, must be constantly maintained in good
condition for service.
By article 41, the officers and crews of the vessels, and, as
far as possible, the engineers, shall be Spaniards.
By article 49, the company may employ its vessels in the
transportation of all classes of passengers and merchandise, and
engage in all commercial operations that will not prejudice the
services that it must render to the state.
By article 60, when by order of the government munitions of war
shall be taken on board, the company may require that it shall be
done in the manner and with the precautions necessary to avoid
explosions and disasters.
By article 64, in case of the suspension of the mail service by
a naval war or by hostilities in any of the seas or ports visited
by the company's ships, the government may take possession of them
with their equipment and supplies, having a valuation of the whole
made by a commission composed of two persons selected by the
government, two by the company, and a fifth person chosen by those
four; at the termination of the war, the vessels with their
equipment are to be returned to the company, and the government is
to pay to the company an indemnity for any diminution in their
value, according to the opinion of the commission, and is also,
for
Page 176 U. S. 540
the time it has the vessels in its service, to pay five percent
on the valuation aforesaid. By article 66, at the end of the war,
the government may relieve the company of the performance of the
contract if the casualties of the war have disabled it from
continuing the service. And by article 67, in extraordinary
political circumstances, and though there be no naval war, the
government may charter one or more of the company's vessels, and in
that event shall pay an indemnity estimated by the aforesaid
commission.
The district court denied the motion of the master to take
further proof, restored parts of the cargo to claimants thereof,
gave claimants of other parts of the cargo leave to introduce
further proof, and entered a final decree of condemnation and sale
of the
Panama and the rest of her cargo upon the ground
that she was enemy's property, and was upon the high seas at the
time of the President's proclamation exempting certain vessels from
arrest. 87 F. 927. The court also, on the application of the
commodore commanding at Key West and on the recommendation of the
prize commissioners, ordered all the mounted guns and the
ammunition therefor to be appraised by two officers of the Navy and
delivered to the commodore for the use of the Navy Department. The
master of the
Panama appealed to this Court from the
decree condemning the vessel.
The recent war with Spain, as declared by the Act of Congress of
April 25, 1898, c. 189, and recognized in the President's
proclamation of April 26, 1898, existed on and after April 21,
1898. 30 Stat. 364, 1770. This proclamation declared, among the
rules on which the war would be conducted, the following:
"4. Spanish merchant vessels, in any ports or places within the
United States, shall be allowed till May 21st, 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
Page 176 U. S. 541
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."
"
* * * *"
"6. The right of search is to be exercised with strict regard
for the rights of neutrals, and the voyages of mail steamers are
not to be interfered with except on the clearest grounds of
suspicion of a violation of law in respect of contraband or
blockade."
It has been decided by this Court in the recent case of
The
Buena Ventura, 175 U. S. 384,
that a Spanish merchant vessel which had sailed before April 21,
1898, from a port of the United States on a voyage to a foreign
port, not having on board any officer in the military or naval
service of Spain, nor any article contraband of war, nor any
dispatch of or to the Spanish government, was protected by the
fourth clause of the President's proclamation of April 26, 1898,
from condemnation while on that voyage; but that her capture,
before that proclamation was issued, was with probable cause, and
that she should therefore be ordered to be restored to her owner,
but without damages or costs.
That case would be decisive of this one but for the mails and
the arms carried by the
Panama and the contract with the
Spanish government under which the arms were put on board.
It was argued in behalf of the claimant that, independently of
her being a merchant vessel, she was exempt from capture by reason
of her being a mail steamship and actually carrying mail of the
United States.
There are instances in modern times in which two nations, by
convention between themselves, have made special agreements
concerning mail ships. But international agreements for the
immunity of the mailships of the contracting parties in case of war
between them have never, we believe, gone further than to provide,
as in the postal convention between the United States and Great
Britain in 1848, in that between Great Britain and France in 1833,
and in other similar conventions,
Page 176 U. S. 542
that the mail packets of the two nations shall continue their
navigation without impediment or molestation until a notification
from one of the governments to the other that the service is to be
discontinued, in which case they shall be permitted to return
freely, and under special protection, to their respective ports.
And the writers on international law concur in affirming that no
provision for the immunity of mail ships from capture has as yet
been adopted by such a general consent of civilized nations as to
constitute a rule of international law. 9 Stat. 969; Wheaton (8th
ed.) pp. 659-661, Dana's note; Calvo (5th ed.) §§ 2378, 2809; De
Boeck, §§ 207, 208. De Boeck, in § 208, after observing that, in
the case of mail packets between belligerent countries, it seems
difficult to go farther than in the convention of 1833, above
mentioned, proceeds to discuss the case of mail packets between a
belligerent and a neutral country, as follows:
"It goes without saying that each belligerent may stop the
departure of its own mail packets. But can either intercept enemy
mail packets? There can be no question of intercepting neutral
packets, because communications between neutrals and belligerents
are lawful, in principle, saving the restrictions relating to
blockade, to contraband of war, and the like; the right of search
furnishes belligerents with a sufficient means of control. But
there is no doubt that it is possible according to existing
practice to intercept and seize the enemy's mail packets."
The provision of the sixth clause of the President's
proclamation of April 26, 1898, relating to interference with the
voyages of mail steamships, appears by the context to apply to
neutral vessels only, and not to restrict in any degree the
authority of the United States, or of their naval officers, to
search and seize vessels carrying the mails between the United
States and the enemy's country. Nor can the authority to do so in
time of war be affected by the facts that, before the war, a
collector of customs had granted a clearance, and a postmaster had
put mails on board, for a port which was not then, but has since
become, enemy's country. Moreover, at the time of the capture of
the
Panama, this proclamation had not been
Page 176 U. S. 543
issued. Without an express order of the government, a merchant
vessel is not privileged from search or seizure by the fact that it
has a government mail on board.
The
Peterhoff, 5 Wall. 28,
72 U. S. 61.
The mere fact, therefore, that the
Panama was a mail
steamship, or that she carried mail of the United States on this
voyage, does not afford any ground for exempting her from
capture.
The remaining question in the case is whether the
Panama came within the class of vessels described in the
fourth clause of the President's proclamation of April 26, 1898, as
"Spanish merchant vessels," and as not
"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."
On the part of the claimant, it was argued that the arms which
the
Panama carried under the requirements of her mail
contract and for the protection of the mails are not to be regarded
as contraband or munitions of war within the sense of this clause;
that "contraband," as therein referred to, means contraband cargo,
not contraband portion of the ship's permanent equipment, and that,
if the furnishings of a ship could be regarded as contraband, every
ship would have contraband on board.
On the other hand, it was contended in support of the
condemnation that the arms which the
Panama carried
belonging to her owner were contraband of war, and rendered her
liable to capture, and that, by reason of her being so armed and of
the provisions of her mail contract with the Spanish government
requiring her armament and recognizing the right of that
government, in case of a suspension of the mail service by war, to
take possession of her for warlike purposes, she cannot be
considered as a merchant vessel within the meaning of the
proclamation, but must be treated like any regular vessel of the
Spanish navy under similar circumstances.
The claimant much relied on a case decided in 1800 by the French
Council of Prizes, in accordance with the opinion and
Page 176 U. S. 544
report of Portalis, himself a high authority. Wheaton (8th ed.),
p. 460; De Boeck, § 81. In the case referred to, an American
vessel, carrying ten cannon of various sizes, together with muskets
and munitions of war, had been captured by French frigates, and had
been condemned by two inferior French tribunals upon the ground
that she was armed for war and had no commission or authority from
her own government. The claimants contended that their ship, being
bound for India, was armed for her own defense, and that the
munitions of war, the muskets and the cannon that composed her
armament did not exceed what was usual in like cases for long
voyages. Upon this point, Portalis, acting as commissioner of the
French government, reported his conclusion on the question of
armament as follows:
"For my part, I do not think it is enough to have or to carry
arms to incur the reproach of being armed for war. Armament for war
is of a purely offensive nature. It is established when there is no
other object in the armament than that of attack, or at least when
everything shows that such is the principal object of the
enterprise, then a vessel is deemed enemy or pirate if she has no
commission or papers sufficient to remove all suspicion. But
defense is a natural right, and means of defense are lawful in
voyages at sea, as in all other dangerous occupations of life. A
ship which had but a small crew and a considerable cargo was
evidently intended for commerce, and not for war. The arms found on
this ship were evidently intended not for committing acts of rapine
or hostility, but for preventing them; not for attack, but for
self-defense. The pretext of being armed for war therefore appears
to me to be unfounded."
The Council of Prizes, upon consideration of the report of
Portalis, adjudged that the capture of the vessel and her cargo was
null and void, and ordered them to be restored, with damages.
The Pegou, or Pigou, 2 Pistoye et Duverdy, Prises
Maritimes 51.
But in that case, the only question at issue was whether a
neutral merchant vessel, carrying arms solely for her own defense,
was liable to capture for want of a commission as a vessel of war
or privateer. That the capture took place while there
Page 176 U. S. 545
was no State of war between France and the United States is
shown by her being treated throughout the case as a neutral vessel;
if she had been enemy's property, she would have been lawful prize
even if she had a commission or if she were unarmed. She was not
enemy's property, nor in the enemy's possession, nor bound to a
port of the enemy, nor had her owner made any contract with the
enemy by which the enemy was or would be under any circumstances
entitled to take and use her either for war or for any other
purpose.
Generally speaking, arms and ammunition are contraband of war.
In
The Peterhoff,
5 Wall. 28, Chief Justice Chase, delivering the judgment of this
Court, said:
"The classification of goods as contraband or not contraband has
much perplexed text writers and jurists. A strictly accurate and
satisfactory classification is perhaps impracticable, but that
which is best supported by American and English decisions may be
said to divide all merchandise into three classes. Of these
classes, the first consists of articles manufactured, and primarily
and ordinarily used, for military purposes in time of war; the
second of articles which may be and are used for purposes of war or
peace, according to circumstances, and the third of articles
exclusively used for peaceful purposes. Merchandise of the first
class, destined to a belligerent country or places occupied by the
army or navy of a belligerent, is always contraband; merchandise of
the second class is contraband only when actually destined to the
military or naval use of a belligerent; while merchandise of the
third class is not contraband at all, though liable to seizure and
condemnation for violation of blockade or siege."
And it was adjudged that so much of the cargo of
The
Peterhoff as consisted of artillery harness, artillery boots,
and army shoes and blankets came fairly under the description of
goods primarily and ordinarily used for military purposes in time
of war, and, being destined directly for the use of the rebel
military service, came within the second, if not within the first,
class of goods contraband of war. 5 Wall.
72 U. S. 58.
Yet it must be admitted that arms and ammunition are not
contraband of war when taken and kept on board a merchant
Page 176 U. S. 546
vessel as part of her equipment, and solely for her defense
against "enemies, pirates, and assailing thieves," according to the
ancient phrase still retained in policies of marine insurance.
Pratt, in his essay on the Law of Contraband of War, speaking of
the class of "articles which are of direct use in war," says:
"With respect to these, no questions can arise. On proof of the
use of the article being solely or particularly applicable to
hostile purposes, the conveyance of it to the enemy would amount to
such a direct interposition in the war as necessarily to entail the
confiscation of the property."
But he afterwards adds this qualification:
"But even in the case of articles of direct use in war, an
exception is always made in favor of such a quantity of them as may
be supposed to be necessary for the use or defense of the
ship."
And again, speaking of "warlike stores," he says:
"These are, from their very nature, evidently contraband; but
every vessel is, of course, allowed to carry such a quantity as may
be necessary for purposes of defense; this provision is expressly
introduced in many treaties."
Pratt, Contraband of War, xxii, xxv, xl. And at pages 239, 244,
245 of his appendix, he quotes express provisions to that effect in
the treaties between Great Britain and Russia in 1766, 1797, and
1801.
See also Cases of Dutch and Spanish Ships, 6 C.Rob.
48;
The Happy Couple, Stewart Adm. (Nova Scotia) 65, 69;
Madison, quoted in 3 Whart.Int.Law Dig. § 368, p. 313.
But the fact that arms carried by a merchant vessel were
originally taken on board for her own defense is not conclusive as
to her character. This is clearly shown by the case of
The Amelia
(1801), reported by the name of
Talbot v.
Seeman, 1 Cranch 1. In that case, during the naval
warfare between the United States and France near the end of the
last century, a neutral merchant vessel having eight iron cannon
and eight wooden guns mounted on board and a cargo of merchandise
sailed from Calcutta for Hamburg, both being neutral ports, and
before reaching her destination, was captured by a French cruiser
and put by her captors, with the cannon still on board, in charge
of a French prize crew, with directions to take her into a French
port for adjudication as prize, and on her way
Page 176 U. S. 547
hither was recaptured by a United States ship of war. The
recapture was held to be lawful, and to entitle the recaptors to
salvage before restoring the vessel to her neutral owner, because,
as Chief Justice Marshall said,
"the
Amelia was an armed vessel commanded and manned by
Frenchmen, . . . she was an armed vessel under French authority,
and in a condition to annoy the American commerce."
1 Cranch
5 U. S. 32. And in
The Charming
Betsy (1804), 2 Cranch 64, that case was expressly
approved, as a precedent to be followed under similar
circumstances, but was held to be inapplicable where the arms on
board at the time of the recapture were but a single musket and a
small amount of powder and ball. 2 Cranch
6 U. S. 121.
Notwithstanding that the
Amelia was a neutral vessel with
an armament originally taken on board for defense only, and
therefore, while in the possession of her neutral owner, would not
(according to the French case above cited) have been liable to
capture as an armed vessel, yet, after she had been taken
possession of by the enemy, with the same armament still on board,
and thus was in a condition to be used by the enemy for hostile
purposes, the fact that the original purpose of the armament was
purely defensive did not prevent her from being considered as an
armed vessel of the enemy.
While the authorities above referred to present principles and
analogies worthy of consideration in the case at bar, they furnish
no conclusive rule to govern its determination. The decision of
this case must depend upon its own facts, and upon the true
construction of the President's proclamation.
As to the facts, there is no serious dispute. The matters stated
in the test affidavits upon which the motion for further proof was
based add nothing of importance to the facts disclosed by the
testimony
in preparatorio, and by the mail contract
between her owner and the Spanish government, which forms part of
the ship's papers.
The
Panama was a steamship of 1432 tons register,
carrying a crew of seventy-one men all told, owned by a Spanish
corporation, sailing under the Spanish flag, having a commission as
a royal mail ship from the government of Spain, and plying from and
to New York and Havana and various Mexican ports, with
Page 176 U. S. 548
general cargoes, passengers, and mails. At the time of her
capture, she was on a voyage from New York to Havana, and had on
board two breech-loading Hontoria guns of nine centimeter bore, one
mounted on each side of the ship, one Maxim rapid-firing gun on the
bridge, twenty Remington rifles and ten Mauser rifles, with
ammunition for all the guns and rifles, and thirty or forty
cutlasses. The guns had been put on board three years before, and
the small arms and ammunition had been on board a year or more. Her
whole armament had been put on board by the company in compliance
with its mail contract with the Spanish government (made more than
eleven years before, and still in force), which specifically
required every mail steamship of the company to "take on board, for
her own defense," such an armament, with the exception of the Maxim
gun and the Mauser rifles.
That contract contains many provisions looking to the use of the
company's steamships by the Spanish government as vessels of war.
Among other things, it requires that each vessel shall have the
capacity to carry 500 enlisted men; that that government, upon
inspection of her plans as prepared for commercial and postal
purposes, may order her deck and sides to be strengthened so as to
support additional artillery, and that, in case of the suspension
of the mail service by a naval war or by hostilities in any of the
seas or ports visited by the company's vessels, the government may
take possession of them with their equipment and supplies at a
valuation to be made by a commission, and shall, at the termination
of the war, return them to the company, paying five percent on the
valuation while it has them in its service, as well as an indemnity
for any diminution in their value.
The
Panama was not a neutral vessel, but she was enemy
property, and as such, even if she carried no arms (either as part
of her equipment, or as cargo), would be liable to capture unless
protected by the President's proclamation.
It may be assumed that a primary object of her armament, and, in
time of peace, its only object, was for purposes of defense. But
that armament was not of itself inconsiderable, as appears not only
from the undisputed facts of the case, but
Page 176 U. S. 549
from the action of the district court, upon the application of
the commodore commanding at the port where the court was held and
on the recommendation of the prize commissioners directing her arms
and ammunition to be delivered to the commodore for the use of the
Navy Department. And the contract of her owner with the Spanish
government, pursuant to which the armament had been put on board,
expressly provided that, in case of war, that government might take
possession of the vessel with her equipment, increase her armament,
and use her as a war vessel, and, in these and other provisions,
evidently contemplated her use for hostile purposes in time of
war.
She was, then, enemy property, bound for an enemy port, carrying
an armament susceptible of use for hostile purposes, and herself
liable, upon arrival in that port, to be appropriated by the enemy
to such purposes.
The intent of the fourth clause of the President's proclamation
was to exempt for a time from capture peaceful commercial vessels,
not to assist the enemy in obtaining weapons of war. This clause
exempts "Spanish merchant vessels" only, and expressly declares
that it shall not 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."
Upon full consideration of this case, this Court is of opinion
that the proclamation, expressly declaring that the exemption shall
not apply to any Spanish vessel having on board any article
prohibited or contraband of war, or a single military or naval
officer, or even a dispatch, of the enemy cannot reasonably be
construed as including, in the description of "Spanish merchant
vessels" which are to be temporarily exempt from capture, a Spanish
vessel owned by a subject of the enemy, having an armament fit for
hostile use, intended, in the event of war, to be used as a war
vessel, destined to a port of the enemy and liable, on arriving
there, to be taken possession of by the enemy, and employed as an
auxiliary cruiser of the enemy's navy in the war with this
country.
Page 176 U. S. 550
The result is that the
Panama was lawfully captured and
condemned, and that the decree of the district court must be
Affirmed.
MR. JUSTICE PECKHAM dissented.