The general rule is that, in time of war, the citizens or
subjects of the belligerents are enemies to each other without
regard to individual sentiments or dispositions, and that political
status determines the question of enemy ownership.
By the law of prize, property engaged in any illegal intercourse
with the enemy is deemed enemy property, whether belonging to an
ally or a citizen, as the illegal traffic stamps it with the
hostile character and attaches to it all the penal
consequences.
Provisions are not, in general, deemed contraband, but they may
become so if destined for the army or navy of the enemy, or his
ports of naval or military equipment.
In dealing with a vessel asserted to be an enemy vessel, the
fact of trade with the enemy in supplies necessary for the enemy's
forces is of decisive importance.
Page 176 U. S. 569
Individual acts of friendship cannot change political status
where there is no open adherence to the opposite cause and former
allegiance remains apparently unchanged.
A consul has no authority, by reason of his official station, to
grant exemption from capture to an enemy vessel, and this vessel
was not entitled to protection by reason of any engagement with the
United States.
In cases of peculiar hardship or calling for liberal treatment,
it is not for the courts, but for another department of the
government, to extend such amelioration as the particular instance
may demand.
Transfers of vessels
flagrante bello cannot be
sustained if subjected to any condition by which the vendor retains
an interest in the vessel or its profits, a control over it, or a
right to its restoration at the close of the war.
The burden of proof in respect of the validity of such transfers
is on the claimant, and the Court holds, as to the transfer in this
case, that the requirements of the law of prize were not satisfied
by the proofs.
The
Benito Estenger was captured by the U.S.S.
Hornet on June 27, 1898, off Cape Cruz on the south side
of the Island of Cuba, and was brought into the port of Key West
and duly libelled on July 2. The depositions
in
preparatorio of Badamero Perez, Edwin Cole, and Enrique de
Messa were taken, and thereafter and on July 27, a claim was
interposed by Perez as master of the steamer on behalf of Arthur
Elliott Beattie, a British subject, as owner, supported by test
affidavits of himself and de Messa. The cause was preliminarily
heard on the libel, the depositions
in preparatorio and
the test affidavits, and sixty days given for further proofs.
Accordingly, the depositions of the claimant and sundry others were
taken on behalf of the claimant, and the testimony of the consul of
the United States at Kingston on behalf of the captor . The cause
coming on for final hearing, the court entered a decree December 7,
1898, condemning the vessel as lawful prize as enemy property and
ordering her to be sold in accordance with law. Claimant thereupon
appealed, and assigned errors to the effect in substance that the
court erred in failing to hold that the
Benito Estenger
was a British merchant ship, duly documented and entitled to the
protection of the British flag, and lawfully owned and registered
by a subject domiciled in Great Britain, and also in holding that
the
Benito Estenger was lawful prize of war inasmuch as
she was engaged on a voyage in
Page 176 U. S. 570
behalf of the local Cuban junta in Kingston, allies of the
United States, and when captured was in the service of the United
States, and employed in friendly offices to the forces of the
United States. The vessel, prior to June 9, 1898, was the property
of Enrique de Messa, of the firm of Gallego, de Messa &
Company, subjects of Spain and residents of Cuba. On that day, a
bill of sale was made by de Messa to the claimant, Beattie, a
British subject, and, on compliance with the requirements of the
British law governing registration, was registered as a British
vessel in the port of Kingston, Jamaica. The vessel had been
engaged in trading with the Island of Cuba, and more particularly
between Kingston and Montego, Jamaica, and Manzanillo, Cuba. She
left Kingston on the 23d of June, and proceeded with a cargo of
flour, rice, cornmeal, and coffee to Manzanillo, where the cargo
was discharged. She cleared from Manzanillo at 2 o'clock A.M., June
27, for Montego, and then for Kingston, and was captured at
half-past five of that day off Cape Cruz. The principal question
was as to the ownership of the vessel and the legality of the
alleged transfer, but other collateral questions were raised in
respect of the alleged Cuban sympathies of de Messa; service on
behalf of the Cuban insurgents in the United States, and the
relation of the United States consul to the transactions which
preceded the seizure. It was argued that the vessels of Cuban
insurgents and other adherents could not be deemed property of the
enemies of the United States; that this capture could not be
sustained on the ground that the vessel was such property; that the
conduct of de Messa in his sale to Beattie was lawful, justifiable,
and the only means of protecting the vessel as neutral property
from Spanish seizure, and finally that this Court could and should
do justice by ordering restitution, under all the circumstances of
the case.
Page 176 U. S. 571
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
If the alleged transfer was colorable merely, and Messa was the
owner of the vessel at the time of capture, did the district court
err in condemning the
Benito Estenger as lawful prize as
enemy property?
"Enemy property" is a technical phrase peculiar to prize courts,
and depends upon principles of public policy as distinguished from
the common law. The general rule is that, in war, the citizens or
subjects of the belligerents are enemies to each other without
regard to individual sentiments or dispositions, and that political
status determines the question of enemy ownership. And, by the law
of prize, property engaged in any illegal intercourse with the
enemy is deemed enemy property, whether belonging to an ally or a
citizen, as the illegal traffic stamps it with the hostile
character and attaches to it all the penal consequences.
Prize Cases, 2
Black 635,
67 U. S. 674;
The Sally, 8
Cranch 382,
12 U. S. 384;
Jecker v.
Montgomery, 18 How. 110;
The
Peterhoff, 5 Wall. 28;
The Flying
Scud, 6 Wall. 263.
Messa was a Spanish subject, residing at Santiago, and for years
engaged in business there. His vessel had a Spanish crew and
Spanish officers, and he testified that he was on board of her as
supercargo. She had the Spanish flag in her lockers, though she was
flying the British flag at the moment, under a transfer, which, as
presently to be seen, was colorable and invalid. There was evidence
tending to show that Messa sympathized with the Cuban insurgents,
but no proof that he was himself a Cuban rebel or that he had
renounced his allegiance to Spain. The vessel carried to Manzanillo
on this voyage a cargo of provisions, consisting principally of
1,100 barrels of flour.
Manzanillo was a city of several thousand inhabitants, and the
first important place on the south Cuban coast between
Page 176 U. S. 572
Santiago and Cienfuegos, lying inside the bay formed by the
promontory which Cape Cruz terminates, and about sixty miles
northeast of the cape. Cape Cruz is about due north from Montego
Bay on the northwestern shore of Jamaica, and about seventy-five
miles distant, while Kingston is on the southeastern coast of
Jamaica. The record lacks evidence of the condition of affairs
there at that time, but official reports leave no doubt that it was
defended by several vessels of war and by shore batteries, and was
occupied by some thousands of Spanish soldiers. On the 6th of
April, 1898, the Secretary of the Navy had instructed Admiral
Sampson, among other things, that the department desired
"that, in case of war, you will maintain a strict blockade of
Cuba, particularly the ports of Havana, Matanzas, and, if possible,
Santiago de Cuba, Manzanillo, and Cienfuegos."
Manzanillo was the terminus of a cable which connected with
Santa Cruz, Trinidad, Cienfuegos, and Havana, and was subsequently
cut by the forces of the United States in order to check the inland
traffic with Manzanillo and to prevent the calling of
reinforcements to resist the capture of that place. And it appeared
that Admiral Sampson had been for some weeks endeavoring to stop
blockade running on the south coast of Cuba, and that a large
vessel with a heavy battery was stationed at Cape Cruz. Manzanillo
was not declared blockaded, however, until the proclamation of June
27, 1898; but the consul of the United States at Kingston had
warned Messa and Beattie that a blockade in fact existed. The
claimant testified that the vessel was chartered by Flouriache, a
Cuban merchant, and that the cargo was consigned to Bauriedel &
Company at Manzanillo. The deposition of neither of these was
taken. According to the explicit testimony of the consul, he was
informed by both the claimant and his brother that the flour was
transferred by Bauriedel & Company, through a communicating way
from their warehouse to the Spanish government warehouse,
immediately upon its delivery, and no evidence to contradict this
was introduced.
The instructions of the Navy Department to "Blockading Vessels
and Cruisers," in the late war, included among articles
Page 176 U. S. 573
conditionally contraband "provisions when destined for an
enemy's ship or ships, or for a place that is besieged."
In
The Commercen,
1 Wheat. 382, Mr. Justice Story said:
"By the modern law of nations, provisions are not in general
deemed contraband, but they may become so, although the property of
a neutral, on account of the particular situation of the war or on
account of their destination. . . . If destined for the ordinary
use of life in the enemy's country, they are not, in general,
contraband, but it is otherwise if destined for military use.
Hence, if destined for the army or navy of the enemy, or for his
ports of naval or military equipment, they are deemed
contraband."
In T
he Jonge Margaretha, 1 C.Rob. 189, 193, Sir William
Scott discussed this question, and, after referring to many
instances, concluded:
"And I take the modern established rule to be this -- that
generally they are not contraband, but may become so under
circumstances arising out of the particular situation of the war or
the condition of the parties engaged in it."
But, while alluding to this subject by way of illustration, we
do not feel called on to consider under what particular
circumstances, generally speaking, provisions may be held
contraband of war. It is enough that, in dealing with a vessel
adjudicated to have been an enemy vessel, the fact of trade with
the enemy, especially in supplies necessary for the enemy's forces,
is of well nigh decisive importance.
In reply, it is suggested that this cargo was intended for the
Cuban insurgents, and a quotation is made from a letter of the
consul to the effect that he had been
"told privately by the president of the local junta, who has
performed valuable services for me, that the proceeds of this cargo
are to be forwarded to the Cuban government and troops through the
Cuban agent at Manzanillo."
The suggestion derives no support from the record, and the facts
remain that the provisions were delivered to the Spanish
government, and that the trade to this Spanish stronghold
constituted under the laws of war illicit intercourse with the
enemy.
This brings us to consider the contention that Messa had
Page 176 U. S. 574
rendered important services to the United States, that he was
the friend, and not the enemy, of this government, and that there
was an agreement between him and the United States consul which
operated to protect the vessel from capture. But Messa's status was
that of an enemy, as already stated, and this must be held to be so
notwithstanding individual acts of friendship, certainly since
there was no open adherence to the Cuban cause, and allegiance
could have been shifted with the accidents of war. The legal
conclusion was not affected by the fact that Messa had, in
cultivating friendly relations with the consul, given the latter an
old government plan of the province of Santiago and an especially
prepared chart of the harbor. Thus displaying his amicable
inclinations, he endeavored to obtain from the consul a letter of
protection for the voyage he was about to undertake, but this the
consul declined to furnish, and informed him at the same time that
Manzanillo was blockaded, and that the contemplated venture would
be at his own risk.
Nevertheless the consul agreed to write the admiral, and did
write him, June 23, that Messa offered to give certain information
that might be valuable, and that he proposed to be off Cape Cruz on
June 30, when he could be picked up there and taken to the admiral
if desired, but the consul said:
"You quite understand that, in dealing with those people, one is
always more or less liable to imposition. I therefore make no
recommendation of Messa to you."
There was nothing to show that the voyage was undertaken on the
strength of this letter, or that it in any way contributed to the
capture, nor that the admiral intended to avail himself of the
suggestion in regard to Messa.
The claimant asserted, and the consul denied, that protection to
the voyage was extended by the latter. But we do not go at length
into this matter, because we think that no engagement with the
United States nor any particular service to the United States was
made out in that connection, and, so far as appears, the vessel was
captured in the ordinary course of cruising duty at a time and
under circumstances when her liability was not to be denied.
Moreover, a United States
Page 176 U. S. 575
consul has no authority, by virtue of his official station, to
grant any license or permit the exemption of a vessel of an enemy
from capture and confiscation. This was so held by Judge McCaleb in
Rogers v. The Amado, Newberry 400, in which he quotes the
language of Sir William Scott in
The Hope, 1 Dodson 226,
229:
"To exempt the property of enemies from the effect of
hostilities is a very high act of sovereign authority; if at any
time delegated to persons in a subordinate situation, it must be
exercised either by those who have a special commission granted to
them for the particular business, and who, in legal language, are
termed 'mandatories,' or by persons in whom such a power is vested
in virtue of any official situation to which it may be considered
incidental. It is quite clear that no consul in any country,
particularly in an enemy's country, is vested with any such power
in virtue of his station. '
Ei rei non praeponitur,' and
therefore his acts relating to it are not binding."
In
The Joseph, 8
Cranch 451, the vessel was condemned for trading with the enemy,
and it was held that she was not excused by the necessity of
obtaining funds to pay the expenses of the ship, nor by the opinion
of an American minister expressed to the master that, by
undertaking the voyage, he would violate no law of the United
States. The Court said that these considerations,
"if founded in truth, present a case of peculiar hardship, yet
they afford no legal excuse which it is competent to this Court to
admit as the basis of its decision."
This is equally true of the case before us, for even if the
circumstances may have justified liberal treatment, that cannot be
permitted to influence our decision. It belongs to another
department of the government to extend such amelioration as appears
to be demanded in particular instances.
Neither the case of
Les Cinq Freres, 4 Lebau's Nouveau
Code de Prises 63, nor that of
The Maria, 6 C.Rob. 201,
cited by counsel, is in point. In the former, the Committee of
Public Safety in the year three of the French Calendar of the
Revolution decreed the condemnation of
Les Cinq Freres as
an enemy's vessel, and of her cargo, although belonging to
Frenchmen, but further decreed restitution of the cargo or its
Page 176 U. S. 576
value, as matter of grace, in consideration of services rendered
by the claimants in furnishing provisions to the Republic, adding
that this should not be drawn into a precedent. The latter simply
involved the interpretation of an indulgence specifically granted
by the British government.
Thus far, we have proceeded on the assumption that the transfer
of the
Benito Estenger was merely colorable, and this, if
so, furnished in itself ground for condemnation. A brief
examination of the evidence, in the light of well settled
principles, will show that the assumption is correct.
Messa's story of the transfer was that the steamer had been
owned by Gallego, Messa & Company, and then by himself; that he
was compelled to sell in order to get money to live on; that he
made the sale for $40,000, for which, or a large amount of which,
credit was given on an indebtedness of Messa to Beattie &
Company, and that he was employed by Beattie to go on the vessel as
his representative and business manager.
It appeared that Beattie applied to the customs and shipping
office in Jamaica for a British register, lodged with him the bill
of sale, and made a declaration of ownership before him as
registrar of shipping, which documents were filed on June 9 and 14,
respectively, and were in conformity with the requirements of
British law. The depositions of the shipbroker and his employees
put the price at nine thousand pounds, and showed their belief that
the sale was
bona fide, founded on what passed between
Messa and Beattie. They did not know what arrangements were made
for the payment of the price, or how or in what shape the purchase
money was paid. The accountant stated that, after the sale, Beattie
went on board and took possession of the vessel, and informed the
officers in charge that he had become the owner, gave orders
regarding her, and informed witness that he had given Messa the
position as supercargo.
There was considerable confusion on the point as to who was
master of the vessel after the transfer. Perez testified that he
was, and as master he interposed the claim on behalf of Beattie. He
also swore that Mr. Beattie
"informed him
Page 176 U. S. 577
that he could remain as master, but it would be necessary for
him to put an English subject on board as first officer or second
captain, in conformity with the British law."
Cole, a British subject, asserted that he was master, and
Beattie stated that he appointed him such with Perez as mate and
pilot, while Messa said that Perez was master and that he, Messa,
was supercargo. Perez had been the captain of the ship and remained
on her, and conceding that Cole was placed on board in the capacity
of captain, the inference is not unreasonable that this was for
appearances only.
Beattie testified that he was a member of the firm of Beattie
& Company, composed of himself and his brothers, all British
subjects, and interested in lands, sugar estates, mines, and
forests in the district of Manzanillo; that he had resided there
for some years, returning to his parent's home in England for
several months at a time; that he concluded the purchase of the
Benito Estenger from Messa on June 9, 1898; that she left
Jamaica on her last voyage on June 23, bound for Manzanillo, and
chartered by Flouriache, a Cuban merchant, carrying a cargo of
foodstuffs sent for the purpose of trade; that he bought the vessel
for nine thousand pounds, but he declined to state of what the
payment or payments of the purchase money consisted, although
saying that the sale was
bona fide.
The consul testified that claimant, in conversation, while
insisting that the transfer was absolute, admitted that it was
effected for the purpose of protecting the vessel.
In short, the statements as to price were conflicting; the
reason assigned for the sale was to get money to live on, and yet
apparently no money passed, and Messa said that he received credit
for a large part of the consideration on indebtedness to claimant's
firm; claimant himself refused to describe the payment or payments;
the Spanish master and crew remained in charge; Messa went on the
voyage as supercargo; the vessel continued in trade, which, in this
instance at least, appeared to be plainly trade with the enemy;
and, finally, it is said by claimant's counsel in his printed
brief:
"It will not be contended upon this appeal that all the interest
of Mr.
Page 176 U. S. 578
Messa in the
Benito Estenger ceased on June 9, 1898.
The transfer was obviously made to protect the steamer as neutral
property from Spanish seizure. That Mr. Messa, however, still
retained a beneficial interest after this sale and transfer of
flags, and continued to act for the vessel as supercargo, has not
been disputed."
The attempt to break the force of this admission by the
contention that the change of flag was justifiable as made to avoid
capture by the Spanish is no more than a reiteration of the
argument that Messa was a Cuban rebel, and his vessel a Cuban
vessel, which, as has been seen, we have been unable to concur in.
If the transfer were invalid, she belonged to a Spanish subject,
she was engaged in an illegal venture, and her owner cannot plead
his fear of Spanish aggression.
Transfers of vessels
flagrante bello were originally
held invalid, but the rule has been modified, and is thus given by
Mr. Hall, who, after stating that, in France,
"their sale is forbidden and they are declared to be prize in
all cases in which they have been transferred to neutrals after the
buyers could have knowledge of the outbreak of the war,"
says:
"In England and the United States, on the contrary, the right to
purchase vessels is in principle admitted, they being in themselves
legitimate objects of trade as fully as any other kind of
merchandise, but, the opportunities of fraud being great, the
circumstances attending a sale are severely scrutinized and the
transfer is not held to be good if it is subjected to any condition
or even tacit understanding by which the vendor keeps an interest
in the vessel or its profits, a control over it, a power of
revocation, or a right to its restoration at the conclusion of the
war."
International Law, 4th ed. 525. And to the same effect is Mr.
Justice Story in his Notes on the Principles and Practice of Prize
Courts (Pratt's ed.) 63, 2 Wheat.App. 30:
"In respect to the transfers of enemies ships during war, it is
certain that purchases of them by neutrals are not, in general,
illegal; but such purchases are liable to great suspicion, and if
good proof be not given of their validity by a bill of sale and
payment of a reasonable consideration, it will materially impair
the validity of a neutral
Page 176 U. S. 579
claim; . . . and if after such transfer the ship be employed
habitually in the enemy's trade, or under the management of a
hostile proprietor, the sale will be deemed merely colorable and
collusive. . . . Anything tending to continue the interest of the
enemy in the ship vitiates a contract of this description
altogether."
The
Sechs Geschwistern, 4 C.Rob. 100, is cited, in
which Sir William Scott said:
"This is the case of a ship, asserted to have been purchased of
the enemy; a liberty which this country has not denied to neutral
merchants, though by the regulation of France it is entirely
forbidden. The rule which this country has been content to apply is
that property so transferred must be
bona fide and
absolutely transferred; that there must be a sale divesting the
enemy of all further interest in it, and that anything tending to
continue his interest vitiates a contract of this description
altogether."
In
The Jemmy, 4 C.Rob. 31, the same eminent jurist
observed:
"This case has been admitted to farther proof owing entirely to
the suppression of a circumstance which, if the court had known, it
would not have permitted farther proof to have been introduced --
namely, that the ship has been left in the trade, and under the
management of the former owner. Wherever that fact appears, the
court will hold it to be conclusive, because, from the
evidentia rei, the strongest presumption necessarily
arises that it is merely a covered and pretended transfer. The
presumption is so strong that scarcely any proof can avail against
it. It is a rule which the court finds itself under the absolute
necessity of maintaining. If the enemy could be permitted to make a
transfer of the ship, and yet retain the management of it as a
neutral vessel, it would be impossible for the court to protect
itself against frauds."
And in
The Omnibus, 6 C.Rob. 71, he said:
"The court has often had occasion to observe that where a ship,
asserted to have been transferred, is continued under the former
agency and in the former habits of trade, not all the swearing in
the world will convince it that it is a genuine transaction."
The rule was stated by Judge Cadwalader of the Eastern
Page 176 U. S. 580
District of Pennsylvania thus:
"The rule of decision in some countries has been that as to a
vessel, no change of ownership during hostilities can be regarded
in a prize court. In the United States, as in England, the
strictness of this rule is not observed. But no such change of
property is recognized where the disposition and control of a
vessel continue in the former agent of her former hostile
proprietors, more especially when, as in this case, he is a person
whose relations of residence are hostile."
The Island Belle, 13 Fed.Cases 168.
So, in
The Baltica, Spinks Prize Cases 264, several
vessels had been sold by a father, an enemy, to his son, a neutral,
immediately before the war, and only paid for in part, the
remainder to be paid out of the future earnings thereof, and the
Baltica, which was one of them, was condemned on the
ground of a continuance of the enemy's interest.
In
The Soglasie, Spinks Prize Cases 104, Dr. Lushington
held the
onus probandi to be upon the claimant, and made
these observations:
"With regard to documents of a formal nature, though when well
authenticated they are to be duly appreciated, it does not follow
that they are always of the greatest weight, because we know,
without attributing blame to the authorities under which they
issue, they are instruments often procured with extraordinary
facility. What the court especially desires is that testimony which
bears less the appearance of formality -- evidence natural to the
transaction, but which often carries with it a proof of its own
genuineness; the court looks for that correspondence and other
evidence which naturally attends a transaction, accompanies it, or
follows it, and which, when it bears upon the face of it the aspect
of sincerity, will always receive its due weight."
In
The Ernst Merck, Spinks Prize Cases 98, the sale was
to neutrals of Mecklenburg shortly before the breaking out of war,
and it was ruled that the onus of giving satisfactory proof of the
sale was on the claimant, and without it the court could not
restore even though it was not called on to pronounce affirmatively
that the transfer was fictitious and fraudulent. In that case, the
vessel was condemned partly because of absence of proof of payment,
Dr. Lushington saying: "We
Page 176 U. S. 581
all know that one of the most important matters to be
established by a claimant is undoubted proof of payment."
To the point that the burden of proof was on the claimant,
See also The Jenny, 5
Wall. 183;
The Amiable
Isabella, 6 Wheat. 1;
United States v. The
Lilla, 2 Cliff. 169; Story's Prize Courts 26.
We think that the requirements of the law of prize were not
satisfied by the proofs in regard to this transfer, and on all the
evidence are of opinion that the court below was right in the
conclusion at which it arrived.
Decree affirmed.
MR. JUSTICE SHIRAS, MR. JUSTICE WHITE, and MR. JUSTICE PECKHAM
dissented.