The question in this case is as to the adequacy of the proof
offered on behalf of the government and the captors to show that
the
Newfoundland was trying to violate the blockade of
Havana, and the court is of opinion that it does not attain to that
degree which affords a reasonable assurance of the justice of the
sentence of forfeiture in the court below -- that it raises doubts
and suspicions and makes probable cause for the capture of the ship
and justification of her captors, but not forfeiture.
Page 176 U. S. 98
The case is stated in the opinion of the Court.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The
Newfoundland, a British steamship, was seized off
the coast of Cuba on 19th July, 1898, by the United States ship of
war
Mayflower, on the ground that she was trying to
violate the blockade of Havana. She was sent to Charleston, South
Carolina, and there libeled with her cargo as prize of war.
Testimony was taken
in preparatorio, and the court
determined it to be insufficient for condemnation, and on motion of
the attorney for the United States ordered further proof.
Upon that proof, a decree was entered condemning and forfeiting
the ship and cargo, and they were ordered to be sold. From the
decree, this appeal is prosecuted. The assignments of error may be
reduced to two contentions:
1. That the court erred in making an order for further proof
because the testimony taken
in preparatiorio afforded no
legal foundation for doubt, or proof of any overt act to justify
the condemnation of the ship.
2. That the additional testimony taken still left the evidence
insufficient for condemnation.
(1) Of the testimony taken
in preparatorio, the court
said:
"Taking the testimony which alone is now before the court, there
is nothing in it which shows or tends to show that the
Newfoundland, at the time of capture or at any other time,
was heading for the port of Havana or any other port."
And, further:
"So far as its examination has extended, no case has been found
where a sentence of condemnation was passed upon such a state of
facts as is presented in this record. How far
Page 176 U. S. 99
short the cases cited fall in showing cause for condemnation the
circumstances hereinabove recited demonstrate. These circumstances
do no more than create a suspicion that there was an intention to
enter a Cuban port in violation of the blockade; but suspicion,
however well founded, is not proof, and cannot be accepted in any
court in place of evidence."
"There must be some overt act denoting an attempt to do the
thing forbidden, some fact in addition to the proved intention to
commit the infraction, which shows that the unlawful intent is
persisted in and is being carried into execution."
"As this Court has in a recent case had occasion to remark, the
testimony
in preparatorio rarely affords opportunity for
such proof. From the master's testimony it appears that Commander
Mackenzie informed him that he had information, through a letter
from the American consul at Halifax, that the
Newfoundland
sailed with intention to run the blockade. The court can form no
opinion as to the probable weight of such testimony. It also
appears that Commander Mackenzie thought the movements and conduct
of the
Newfoundland on the night of the capture
suspicious. The court has personal acquaintance with Commander
Mackenzie, and knows that in character, intelligence, and
attainments, he is the peer of any officer of the navy; but, highly
as it values his opinion, it cannot accept it in lieu of proof; it
furnishes ground for ordering further evidence."
It is urged by counsel for appellants that the court therefore
based its order for further proof upon Commander Mackenzie's
opinion, which, even if otherwise competent, was not in evidence.
We, however, do not so interpret the remarks of the court. It is
explicitly stated that the circumstances created a suspicion of an
intention on the part of the ship to enter a Cuban port, but that
the suspicion was insufficient for condemnation without some proof
in addition showing an overt act, which, as testimony
in
preparatorio rarely afforded, further proof was ordered.
This was not an abuse of discretion, and is clearly within the
ruling of
The Sir William
Peel, 5 Wall. 534. In that case, the Court said the
preparatory proof, which consisted
Page 176 U. S. 100
of the depositions of the master of the ship, the mate, and one
seaman, "clearly required restitution" of the ship, and, declaring
the rule, said, through Chief Justice Chase, that
"regularly in cases of prize, no evidence is admissible on the
first hearing, except that which comes from the ship, either in the
papers or the testimony of persons found on board."
"If upon this evidence the case is not sufficiently clear to
warrant condemnation or restitution, opportunity is given by the
court, either of its own accord or upon motion and proper grounds
shown, to introduce additional evidence under an order for further
proof."
(2) For a statement of the case, we may quote from the opinions
of the district court. They clearly marshal and review all
inculpating and exculpating circumstances, and give the impressions
of the court of the character of witnesses the most important of
whom testified in its presence. From the first opinion rendered on
the testimony taken
in preparatorio, as follows:
The
Newfoundland
"cleared from Halifax, Nova Scotia, July 8, 1898, for Kingston,
Jamaica, and Vera Cruz, Mexico. She carried a cargo of flour, pork,
corn, wheat, and canned goods shipped by David Robertson & Co.
Bills of lading were issued to them for 4,386 packages for
Kingston, and 3,747 for Vera Cruz. These bills of lading are
indorsed by them in blank. The charter party was for a voyage of
three months to ports of the United States, West Indies, Central
and South America, etc., in the customary printed form, and written
therein was, 'including open Cuban ports, no contraband of war to
be shipped,' and was to terminate at Halifax. Musgrave & Co.
were the charterers."
"It appears from the master's testimony that he was instructed
by the charterers to follow the directions of the shippers of the
cargo, and he received from Robertson & Co., through the former
captain, verbal instructions to clear for Kingston and Vera Cruz,
and to proceed with all haste to the north coast of Cuba, and to
enter either the port of Sagua la Grande or Caibairien, but on no
account to enter any
Page 176 U. S. 101
blockaded port; and, if he found the ports of Sagua and
Caibairien blockaded, to proceed to Kingston and wire for
instructions. It seems clear from this testimony that it was the
intention of the shippers that the cargo was to be landed at Sagua
or Caibairien, where the master was instructed that he would be met
by pilots, and that Kingston and Vera Cruz were 'contingent' or
provisional destinations. Neither Sagua nor Caibairien were
included among the Cuban ports in either of the President's
proclamations notifying a blockade."
"
The Newfoundland sailed from Halifax on July 9. Her
speed is about eight knots; her registered tonnage, 567 tons. She
steered for the 'Crooked Inland Passage' in the Bahamas, passing
thence into the 'Old Bahama Channel,' and, going in the direction
of Sagua and Caibairien, she reached a point northwestwardly from
Neuvitas, on the north coast of Cuba, where she was stopped by the
United States ship of war
Badger at 12:45 A.M., on Monday,
July 18th. Her papers were examined by the boarding officer, who
informed the master that the whole Island of Cuba was blockaded,
and was allowed to proceed upon her course."
"The Island of Jamaica lies almost due south from Nuevitas,
which, being about two hundred miles from the eastern end of the
Island of Cuba, it is contended that the
Newfoundland
should at that point have changed her course, and proceeded
eastward around Cape Maysi, and thence to Kingston. This
undoubtedly would have been the shortest course, and, if Kingston
was the destination, the sailing westward from Naevitas would have
carried the ship many hundreds of miles out of her course. It may
be here observed that, on the log book kept by the mate the line at
the head of each page up to and including Monday, 18th July, is,
'Journal from Halifax, N.S., towards Kingston and Vera Cruz.' On
Tuesday, 19th July, the head line is, 'Journal from Halifax, N.S.,
towards Vera Cruz and Kingston.' If, after reaching Nuevitas, there
was an intention to go to Vera Cruz, the westwardly course would be
the most direct."
From the second opinion on final hearing, as follows:
"Lieutenant Evans, in command of the U.S.S.
Tecumseh,
Page 176 U. S. 102
testifies that about 5 o'clock in the afternoon of July 19th,
while on his station in the blockading squadron, six or eight miles
to the north and eastward of Havana light, and about three and
one-half miles from the nearest shore, he sighted the
Newfoundland moving towards him on a westerly course; that
he immediately stood towards her at full speed -- about 10 knots --
and overhauled her, sending his mate aboard to examine her papers.
He estimates his position at the time as being latitude 23�15' N.,
longitude 82�13', and on a diagram prepared by the navigating
officer of the
Mayflower and offered in evidence, he fixes
her position as being unquestionably within a dotted circle, thinks
that it was about the center of the circle, but, having taken no
measurements at the time, would not undertake to fix it closer than
within three miles. He fixes the hour of boarding at 5:35, and says
that he left her 'in the vicinity of 6 o'clock,' she bearing off on
a course about west by one-half north. Mate Nickerson, of the
Tecumseh, fixes her position at the time of sighting the
Newfoundland at six to eight miles from Morro light, and
about three and one-half to four miles from the nearest shore, the
Newfoundland being at that time about nine miles to the
northward and eastward, sailing west; the
Tecumseh sailing
about four miles to overhaul her. He fixes the hour of boarding at
5:35 exactly, and says that he returned aboard his ship about 5:50.
He failed to enter upon the log of the
Newfoundland the
hour of boarding, as is usually, and always should be, done. He
locates the point of boarding upon the diagram as does Lieutenant
Evans; saw the
Newfoundland for about ten minutes after
she stood off one or two points to the north of west, and says 'it
began to settle down dusk then.'"
"Ensign Pratt, of the
Mayflower, whose watch began at 8
o'clock, testifies that about 8:20 he picked up a small light
bearing north by west from him; reported the same to the commanding
officer, who ordered the ship headed for it north by west, and the
engines rung ahead full speed. Shortly after heading for it, the
light was lost, but, standing on the same course about twenty
minutes, and putting on forced draft, the light was picked up again
a little to the westward. Altering
Page 176 U. S. 103
his course, and heading north-northwest, the light shortly
disappeared again. He gradually changed his course to the westward
until he headed about northwest, standing on that course about
thirty minutes, still not seeing the light, when about 9:10 he
sighted it again, bearing southwest on his port beam, and inshore;
headed for it again, and stood on until about 9:30, when the light
was seen outshore of him on his starboard beam, and headed for it
again, and came up with her at 10 o'clock. From subsequent
developments, it is probable that the light thus described was that
of a lantern hanging on the wall of the companionway in the after
deck-house of the
Newfoundland, visible only when nearly
abeam through the doors on either side. It would be open only to
about three-fourths of a point of the compass, and the
Mayflower at full speed, making at times sixteen miles an
hour, would pass the point of visibility, until, by changing her
course, it would again become visible and be picked up first on one
quarter, then on the other. When the light was first seen, the
Mayflower was heading east-northeast, and the light was
bearing north by west from her, a point forward of the port beam,
and estimated to be from two to three miles distant. No other
lights were seen on the
Newfoundland until she was
overhauled. At that time, all of the regulation lights were found
to be burning brightly."
"Lieutenant Culver, navigating officer of the
Mayflower, describes the chase substantially as above, and
exhibits a tracing made on July 20th, showing the estimated
positions of the respective vessels at the time when the light was
first discovered and at the time of the capture, and the course
sailed by each."
"Commander Mackenzie, of the
Mayflower, was the senior
officer of the blockade off Havana. The
Mayflower covered
about five points of the compass on the bearing from Morro light,
and had been on that station during the month of July. He says that
about 8:30, a faint light was reported about north by west of him,
which he thought was a plain lantern. He describes the chase, and
locates the positions of the two vessels on the tracing prepared by
Lieutenant Culver. From this
Page 176 U. S. 104
testimony and upon this diagram, it would appear that the
Newfoundland, when boarded by the
Tecumseh, was
at a point within a circle whose center is ten and three-fourths
miles from Morro light, whose bearing was southwest one-half
west."
"The testimony from the
Newfoundland, relating to the
same matter, will now be stated."
"Captain Malcolm, the master, says that he was boarded by the
mate of the
Tecumseh fourteen miles off shore -- off the
nearest land -- while sailing on a westward course; that the
boarding officer, after examining his papers, advised him not to go
any nearer the land, lest he should get a shell into him, and left
him at 6:30; that thereafter he stood on a course one point north
of west until 8 o'clock, when the Havana light bore about south by
west, and from that time he put his ship back on a course due west,
which he followed until boarded by the
Mayflower. He
exhibits a chart on which he has marked his course, and says that
at 8:30 he passed Havana light, being seventeen and one-half miles
from it; that at 10 o'clock, when boarded by the
Mayflower, he was twenty-one miles from Havana light,
which bore then southeast by south one-half south."
"Salkus, the mate of the
Newfoundland, testifies to the
boarding by the
Tecumseh at 6:10, and that the Havana
lighthouse and Morro Castle were not visible; that they started on
their course at 6:30, and at 8:30 were abreast of Havana light,
which bore south about sixteen or seventeen miles. In explanation
of the entry in his log, he says that he took no bearings at the
time of the entry, and knew that the ship was farther off than ten
miles. He says that at the time of the capture, Morro light was not
visible from the bridge, but that he saw it from the compass pole,
fifteen feet above the bridge."
"Payne, the engineer, testified to the boarding by the
Tecumseh at 6:10, and his log contains an entry showing
that the engines stopped at 6:10, and started again at 6:30."
"It thus appears that there is a wide divergence in the
testimony as to the point at which the
Newfoundland was
when boarded by the
Tecumseh, and some divergence as to
the time of such boarding."
"Lieutenant Evans and his mate fixed this location within
Page 176 U. S. 105
a circle whose radius is three miles. They say that they are
certain as to her location within three miles, and believe that she
was about the center of that circle, which is ten and one-half
miles from Morro light. Captain Malcolm and his mate fix the
location at a point twenty-four miles from Morro light, thirteen
and one-half miles from the center of the circle above referred to,
and ten and one-half miles from that point of the circle nearest to
the
Newfoundland."
"There is marked discrepancy, and the first point to be decided
is, which is correct? Applying the usual tests by which testimony
is weighed -- the intelligence of the witnesses, their
opportunities for knowing the truth, the likelihood of error
arising from considerations of interest, and other influences which
commonly sway men's minds -- there can be no doubt that there is a
preponderance of probability in favor of that side which, having no
interest in the controversy, has the greater opportunity of
knowledge."
"Lieutenant Evans and his mate were on cruising grounds with
which they were familiar. There could be no difficulty in
ascertaining their position from the bearing of Morro, which was in
plain sight, day and night. They were within three or four miles of
the shore, with well defined objects from which bearings could be
had. It was their manifest duty to know where they were, for they
had to keep within certain prescribed limits. They are men of
education, character, and intelligence, and their testimony cannot
be discredited without imputing to them a reckless carelessness for
which there is no warrant."
"Neither Captain Malcolm nor his mate was familiar with the
locality. The former had once before been to Havana, the latter,
never. Their interest is obvious. I have no difficulty in coming to
the conclusion that the preponderance of evidence fixes the
position of the
Newfoundland within the described circle
when boarded by the
Tecumseh. I am not so clear as to the
time. The mate Nickerson fixes it at 5:35 precisely, and says that
he returned to the
Tecumseh at 5:50; but he says that he
watched the
Newfoundland for about ten minutes after she
left, when 'it began to settle down dusk.' "
Page 176 U. S. 106
"The sun set in that latitude on that day about 6:30, and there
is little twilight."
"The officers of the
Newfoundland fix the hour of
boarding at 6:10 and the time of departure at 6:30, and these
figures are entered upon the engineer's log. This log has been in
possession of the claimant since the capture, and some erasures
appear in another part which may hereafter call for comment, and it
therefore cannot be accepted as absolute verity, but, giving the
ship the benefit of the reasonable doubt which the testimony
warrants, assuming that she sailed at 6:30, she is next seen by
Ensign Pratt about 8:20, when he sighted a small light bearing
north by west from the
Mayflower, whose station on the
cruising ground lay next west of the
Tecumseh, and whose
position at that time was about six miles north by west from Morro
light. This small light was estimated to be about two or three
miles from the
Mayflower. The mate of the
Newfoundland made this entry upon her log: '8:30 Havana
light bearing south ten miles.' If this testimony is taken as true,
this would place the
Newfoundland at a point seven miles
from the center of the circle adopted as the point of departure,
and ten miles from the extreme western circumference of it, and it
would follow that she had consumed two hours in making that
distance. As her speed during her voyage was on an average nearly
eight knots an hour, there is a considerable margin of time to be
accounted for, which she endeavors to do by fixing her location at
8:30 at a point seventeen miles from Havana. This is the testimony
of her master, and the mate concurs in it, saying that the entry in
his log was not an accurate statement of the ship's position at
that time; that it was only intended to show that she was at least
ten miles from Havana light. It is not necessary to discuss nor
decide now how far a ship is concluded by the entries in her log.
If the party making such entry is shown to have been drunk at the
time, or habitually careless, or if made in a perfunctory way,
without observations or the opportunity of observation, little
weight might be given it; but, the log being intended to be a
correct record of the facts contained therein, an entry made with
full knowledge and opportunity of ascertaining
Page 176 U. S. 107
the truth must be accepted as the truth if it tells against the
party making it, and can be denied no more than a deed. If it is
the result of a mistake, there must be conclusive evidence of the
mistake. It is sufficient to say that such evidence has not been
adduced here, and the entry upon the log, confirmed as it is by the
testimony from the
Mayflower, fixes the position of the
Newfoundland at 8:30 at a point about ten miles from the
Havana light. From that point to the point of seizure, her course
can be marked with sufficient accuracy. That she sailed on a
straight course from 8:30 to 10 o'clock, and that such course led
her away from the entrance into the port of Havana, is entirely
clear, whether the point was seventeen miles from Morro light, as
claimed by the
Mayflower, or twenty-one miles, as claimed
by the
Newfoundland, or eighteen miles, as agreed upon by
her master and Ensign Pratt as the point from which they took their
departure after the seizure, when they started upon their voyage to
Charleston."
"The next incriminating charge is that the
Newfoundland
was sailing without lights. Ensign Pratt, who first sighted her,
says he picked up a small light. All the witnesses from the
Mayflower describe this light as that from an ordinary
lantern, and not the masthead light. None of these witnesses saw
any of the regulation lights until they came up with her about ten
o'clock, when they were all brightly burning. After the chase
began, these regulation running lights, being visible only two
points abaft the beam, would naturally not be seen."
"Coming westward from the point where she left the
Tecumseh to the point where the faint light was sighted,
her masthead light, whose visibility by the regulations is at least
five miles, should certainly have been seen if there was proper
vigilance aboard the
Mayflower. That Ensign Pratt was
vigilant is demonstrated by the fact that he picked up the dim
light two or three miles off at 8:20. He went on duty at 8 o'clock.
The officer who had the watch before that hour was not examined,
nor were the lookouts, who are described by Commander Mackenzie as
uncommonly efficient men. As it is, the testimony leaves this
question open to reasonable
Page 176 U. S. 108
doubt, while it is probable that the masthead light, if burning,
and not screened, would have been visible to Ensign Pratt at the
time he described the small light, he does not say with certainty
that it would have been, there being but a narrow limit of
visibility."
"The witnesses from the
Newfoundland, including the
sailor who lit them, all testify that the lights were lit at the
usual hour, and they were all burning when she was overhauled."
"Commander Mackenzie and other witnesses from the
Mayflower all testify that the small light already
described was the only one seen; that there were no stray lights,
such as are commonly seen aboard a steamer in the night-time."
"Taking the point of departure to be somewhere within the circle
already described, and the time of departure at 6:30, and the rate
of speed at nearly eight knots, and following the courses
described,-west by north until eight o'clock, and then due west
until ten o'clock, and plotting it upon the chart, I must conclude
that she would have been some miles farther west than either the
point claimed by her or the point testified to by the officers of
the
Mayflower at the point of capture at ten o'clock
unless she had loitered somewhere upon her route."
"Outside the domain of the exact sciences, absolute certainty is
rarely attainable, and there must always be an element of doubt as
to every transaction the proof of which rests upon fallible human
testimony, nowhere more fallible than in estimates of location and
distances upon water."
"
* * * *"
"We will now look into the character and conduct of the
Newfoundland, to see whether her presence off Havana is
consistent with innocent intent."
"She is a small steamship, lately employed in the sealing
business. She sailed from Halifax July 9, loaded with a cargo of
provisions, under command of Captain Malcolm, who was employed for
that voyage. She had two clearances, one for Kingston and one for
Vera Cruz. Commander Mackenzie testifies that it is not the
practice of any American customhouse to give two clearances.
Captain Malcolm says that this
Page 176 U. S. 109
is not unusual in Halifax, and that he has generally had
separate clearances for separate ports, sometimes five or six,
whenever he had cargo for each. We have no statute prescribing any
regulation on this subject, and wherever a ship has separate cargo
for separate ports, I can see no reason why she should not have a
clearance for each, and I am informed that it is the custom at this
port to give such separate clearances. While I cannot hold that
separate clearances for Kingston and Vera Cruz were in themselves
suspicious, it is a cause of grave and just suspicion that her real
and primary destination was to neither of those ports, as
subsequent events proved. Captain Malcolm, in his testimony
in
preparatorio, said that his verbal instructions were to sail
for Caibairien or Sagua la Grande, and, if those ports were
blockaded, to go to Kingston and cable for orders. For reasons into
which it is not the province of this Court to inquire, neither
Sagua nor Caibairien were included among the ports blockaded under
the proclamation of the President, and he had the right to go to
either. Whether in so doing without proper clearances he would have
incurred penalties under the municipal regulations of Great Britain
or of Spain is not within the scope of this inquiry; certain it is
that he would have committed no offense cognizable here."
"Taking his course to the southward, he next appears off
Nuevitas, where he is boarded by Lieutenant Titus, of the U.S.S.
Badger, and is informed by him that the whole coast of
Cuba is blockaded. The case is not presented in an aspect which
requires any determination of the question whether that sort of a
blockade was effective or legal, as he did not go either Sagua or
Caibairien for the purpose of testing its validity, which he might
well have done. According to his testimony
in
preparatorio, and it is repeated on this hearing, he abandoned
all thought of entering either of those ports upon hearing that
they were blockaded. His course then should have been around the
eastern end of the Island of Cuba to Kingston, by way of Cape
Maysi, for the course around the western end, by Cape Antonio, was
nearly a thousand miles further. In these days of sharp
competition, intelligent
Page 176 U. S. 110
men do not make such long detours in the prosecution of
legitimate business. The explanation given is that he wanted to
satisfy his charterers by showing them that he had passed by the
port to which he was directed to go, and, further, that he
apprehended that he would subject himself, to suspicion by changing
his course at that time. The answer to this is obvious. His
charterers did not instruct him to go by the ports of Sagua and
Caibairien, but to go to them, and if he did not intend to do that
his proceeding in that direction was such a futile, time-consuming,
and coal-consuming venture that it staggers credulity to accept it
as the true reason. Nor does the other reason given seem much more
satisfactory. There was nothing unlawful in his setting out for
Sagua, or any other open port in Cuba, and if, after information of
the blockade, it became necessary to change his course in order to
go by the shortest route to Kingston, his contingent destination,
there would have been no risk in disclosing the truth. In this, as
in most of the affairs of life, the straightforward course would
have been the wisest course. That it was not taken suggests the
conclusion that neither Sagua nor Caibairien was the real
destination. It appears from the testimony that neither at the time
of capture nor afterwards was anything ever heard about Sagua or
Caibairien until it came out in the examination of Captain Malcolm
before the prize commissioners. None of the other officers of the
ship appears to have known about it. The mate seems to have thought
that they were going to Vera Cruz. In the engineer's log there
appears every day from July 9th to July 18th, inclusive, a line at
the top of the page containing the words 'from Halifax to Vera Cruz
and _____, Cuba.' The word 'Kingston' is written over and partially
obliterates the word 'Cuba.' There is a blank space before the word
'Cuba' evidently intended to be filled in. 'Havana' would about
fill it. The engineer appeared to be the most intelligent man on
the ship, after the master. From this entry on his log it is plain
that he knew that the ship's destination was Cuba, and there would
seem to be no good reason why the name of the port should have been
left blank if it was Sagua, or any other open port. In the
Page 176 U. S. 111
absence of any testimony confirming the master's statement that
his instructions were to go to Sagua or Caibairien, and there being
nothing in his conduct showing that that was his real destination,
I must hold it to have been a pretensive destination, and his
appearance before Havana is therefore not satisfactorily
explained."
"Lieutenant Culver, of the
Mayflower, who boarded her,
says that, when he asked Captain Malcolm where he was bound, he was
very vague in his replies, sometimes saying Kingston and sometimes
saying Vera Cruz, and when asked whether he was shaping his course
by way of Cape San Antonio he replied that he had not made up his
mind. In the same conversation he said that he had been making
eight knots an hour from the time he was boarded by the
Tecumseh to time of overhauling. To Commander Mackenzie,
on the
Mayflower, he said he was making for Vera Cruz, if
he had coal enough, and then to Kingston if he did not have enough
coal. He was going to Kingston in order to take on coal. To
Lieutenant Pratt, the prize master on the voyage up to Charleston,
he said that he was bound for Vera Cruz."
"Captain Malcolm says in his testimony that his instructions
were to go to Kingston if he found the ports of Sagua and
Caibairien blockaded, and from there he was to cable for
instructions, and that Kingston was his destination; that he had
plenty of coal to get to Kingston, but not enough to go to Vera
Cruz and then Kingston."
"It must be conceded that there is no proof of any attempt to
enter the port of Havana -- that is to say, no witness has
testified to seeing her heading that way. It must also be admitted
that the testimony as to loitering falls very far short of the
proof offered in
The Neutralitet, 6 C.Rob. 30;
The
Apollo, 3 C.Rob. 308;
The Charlotte Christine, 6
C.Rob. 101;
The Gute Erwartung, 6 C.Rob. 182 -- the cases
relied on by the government."
The application of a more stringent rule to the
Newfoundland than was applied in those cases was justified
by the court on the ground that steam vessels have greater power of
eluding blockades than sailing vessels possess.
The conclusion of the court was that the evidence
established
Page 176 U. S. 112
that the ship was loitering about the coast seeking an
opportunity to violate the blockade. Conceding,
arguendo,
that this was enough for her condemnation, we think the fact is
very disputable. It is based upon the ship's nearness to the coast,
the slowness of her movements deduced from her position when the
Tecumseh boarded her and when the
Mayflower
captured her, and the taking of a longer route to Kingston than
might have been selected.
These circumstances may be explained consistently with
innocence. Against them the fact remains that she made no attempt
to enter any Cuban port. She sailed by Caibairien. She sailed by
Sagua, although a railroad connected it with Havana, and made it
inviting to contraband enterprise. And she had sailed beyond Havana
when she was captured. But it is urged she must have loitered, and
with guilty intention, because she ran only twelve miles in three
hours, when she ought to have run twenty-four miles.
In this conclusion there are disputes of fact as well as
disputes of inference. It depends upon the time it was and where
she was when the
Tecumseh boarded her, the time it was and
where she was when the Mayflower seized her, and, granting a
decision of these as contended for by the government, there are the
elements of a varying course in the night and the retarding
influence of the current to account for the time.
The fact of going around Cuba to Kingston, instead of turning
back after she was boarded by the
Tecumseh, is from our
present view not completely accounted for. But our situation, it
must be remembered, was not Captain Malcolm's situation. It was his
view, he testified, of his duty to his employers. It was his way to
avoid exciting the suspicion of the officers of the
Tecumseh, and, in another place, without peril or
responsibility for that or some other decision, we are not prepared
to say that it is necessarily proof of guilt. After experience, it
is often easy to see that something else should have been done than
that which was done, but, judging Captain Malcolm in his situation,
was there not presented to him a fair conflict of reasons? It is
very certain, if doubt came to him what
Page 176 U. S. 113
to do, he would avoid the hazard of the seizure of his ship at
the comparatively small sacrifice of the coal and time which would
be consumed by going to Kingston the longer way.
It is further urged that, when the
Newfoundland was
seen and pursued by the
Mayflower, she had not her usual
lights displayed. This, the district court said, the testimony left
in reasonable doubt. "While it is probable," it was said,
"that the masthead light, if burning and not screened, would
have been visible to Ensign Pratt at the time he described the
small light, he does not say with certainty that it would have
been, there being but a narrow limit of possibility."
The limit was as narrow to all other officers of the pursuing
vessel, and the possibilities it afforded must be considered as at
least balanced by the positive testimony of all on board of the
Newfoundland, including the sailor who lit them at the
usual hour, and the fact that they were all burning when she was
overhauled.
But it may be said that the ship has too many suspicious
circumstances to account for, and that we overlook the probative
strength arising from their number and their concurrence; that, if
each one standing alone can be explained, all together unerringly
point to the guilt of the ship. We appreciate the force of the
argument, but cannot carry it so far. And yet we have no desire to
impair the effectiveness of blockades by declaring a more indulgent
rule than that of prior cases, nor permit experiment with
opportunities to break into blockaded ports. But there should be
some tangible proof of such intention -- a more definite
demonstration than this record exhibits. As we have already seen,
the learned trial judge was constrained to say
"that the testimony as to loitering falls very far short of the
proof offered in
The Neutralitet, 6 C.Rob. 30;
The
Apollo, 3 C.Rob. 308;
The Charlotte Christine, 6
C.Rob. 101;
The Gute Erwartung, 6 C.Rob. 182 -- the cases
relied on by the government."
Their application, however, to the case at bar, whose facts
"fall far short" of their facts, is insisted on because of the
difference between the power of steam vessels and the power of
sailing vessels. Undoubtedly there is a difference, but if steam
has increased the power of blockade runners, it has increased in
greater degree,
Page 176 U. S. 114
when conjoined with the range of modern ordnance, the power of
blockade defenders. We recently had occasion to consider their
power, and decide that a single modern cruiser might make a
blockade effective.
The Olinde Rodrigues, 174 U.
S. 510.
The question in this case, then, is as to the adequacy of the
proof, and we do not think it attains that degree which affords a
reasonable assurance of the justice of the sentence of forfeiture.
It raises doubts and suspicions, makes probable cause for the
capture of the ship and justification of her captors, but not
forfeiture.
The Olinde Rodrigues, 174 U.
S. 510.
It follows therefore, that the decree of the district court
must be reversed and the cause remanded, with directions to enter a
decree restoring the vessel and cargo, or if they have been sold,
the proceeds of the sale, but without damages or costs, and it is
so ordered.