1. The property of a commercial house established in the enemy's
country is subject to seizure and condemnation as prize though some
of the partners may have a neutral domicile.
2. The approach of a vessel to the mouth of a blockaded port for
inquiry -- the blockade having been generally known -- is itself a
breach of the blockade, and subjects both vessel and cargo to
condemnation.
During the Southern rebellion, and our proclamation of a
blockade of Savannah and other parts of the Southern coast being
then notorious to the world, the ship
Cheshire, with a
miscellaneous and assorted cargo, was captured by a war steamer of
the United States on the 6th of December, 1861, off Savannah bar,
eight or nine miles eastward of Tybee Light. She was taken to the
port of New York and there libeled in the district court as prize
of war.
The evidence showed that the ship had been built in the State of
Maine in 1848, her American name having been the
Monterey;
that she was owned by a house residing and doing business in
Savannah, and was employed in the cotton trade to Liverpool; that
in May, 1861, after the port of Savannah had been closed by the
blockade set on foot under the President's proclamation of April
19, 1861, that house made a sale of her to Joseph Battersby, of
Manchester, England; that her name was then changed, and in June,
1861, that she broke the blockade of Savannah, carrying a cargo of
cotton to Liverpool.
Joseph Battersby, the purchaser, and who claimed her
Page 70 U. S. 232
here, was then and at the time of the capture a partner in
business with William Battersby in Savannah, where one of them
resided, the name of the firm being the same as that of their
Manchester house, William Battersby & Co.
The cargo was claimed by both the Battersbys.
The ship was loaded at Liverpool and sailed directly for
Savannah. The captain, however, had received instructions at
Liverpool, dated October 8, 1861, "to call of Savannah
merely
for the purpose of inquiry, but on
no account
whatever to attempt to enter a blockaded port."
"In case the blockade is not raised, proceed to
Nassau,
N.P., and
remain until you receive orders from Messrs. William
Battersby & Co., of Savannah."
The claim made in the case stated that this contingent
destination to Savannah had been made in consequence of confident
predictions, well known, by high officers of our government, that
the rebellion would speedily be quelled, and of the consequent
presumption by the owners of the vessel and cargo that the blockade
would probably be raised by the time the vessel reached our
Southern coast.
Some of the papers showed that Halifax, N.S., was a possible
port of destination. The shipping articles represented the voyage
as "from Liverpool to Halifax, N.S., or Nassau, N.P.," &c. The
receipt of the shipping master of the port of Liverpool for fees,
dated 30th of September, 1861, declared it for Halifax. The master
swore:
"On the voyage during which we were captured, the
Cheshire was bound from Liverpool to Halifax, Nova Scotia,
or Nassau. I was to speak the blockading squadron, and
if the
ports were blockaded, I was to go to Nassau or Halifax."
None of the papers of the ship, neither the clearance, bills of
lading, invoices, nor manifest, which declared the ship bound for
Nassau, nor the shipping articles, which declared her bound for
Halifax or Nassau, contained the slightest intimation of a purpose
under any circumstances to enter the port of Savannah.
The district court, after argument and full consideration,
condemned both vessel and cargo on the ground that they were
enemy's property and were captured in attempting to
Page 70 U. S. 233
break the blockade of the port of Savannah. On appeal to the
circuit court, the condemnation was affirmed, and the case was not
brought by the claimants before this Court for review.
MR. JUSTICE FIELD delivered the opinion of the Court.
The facts established by the evidence in this case justify the
condemnation, we think, of the cargo as enemy's property. No
principle is more firmly settled than that the property of a
commercial house established in the enemy's country is subject to
seizure and condemnation as prize without regard to the domicile of
the partners. The trade of a house of this kind is essentially a
hostile trade, and the property employed in its prosecution is
therefore treated as enemy's property, though some of the partners
may have a neutral domicile. [
Footnote 1] Such trade tends directly to add to the
resources and revenues of the enemy, and, as observed by Mr.
Justice Story,
"there is no reason why he who thus enjoys the protection and
benefits of the enemy's country should not, in reference to such a
trade, share its dangers and losses. It would be too much to hold
him entitled by a mere neutral residence to carry on a
substantially hostile commerce and at the same time possess all the
advantages of a neutral character. [
Footnote 2]"
In this view it is unimportant whether the cargo was to be
delivered to agents at Nassau, subject to the order of the house at
Savannah, or be delivered directly from the
Cheshire in
the port of Savannah. In either case, there was the trade with the
house situated in the enemy's country.
The evidence in the case also establishes, we think, with equal
clearness the fact that the ship was attempting to break the
blockade when captured. She was loaded for
Page 70 U. S. 234
Savannah, her cargo was intended for the branch-house of the
shippers, she sailed directly for that port, the owners and
officers of the ship were informed of the existence of the blockade
before leaving Liverpool, and there was no act of our government,
nor any act of the British government, nor had any event occurred
in the progress of the war, from which any inference could be drawn
that the blockade had ceased. The instructions to call off Savannah
merely for the purpose of inquiry, and to proceed thence to Nassau
upon ascertaining that the blockade was in force, have, under these
circumstances, the appearance of a device to cover up a settled
purpose to elude the blockade. They create a strong impression to
that effect, and this impression is strengthened by an examination
of the ship's papers. These papers contain no intimation of an
intention to enter the port of Savannah upon any contingency. They
show the destination of the ship to be either Nassau or Halifax;
they indicate no contingent intention of going anywhere else. This
concealment of the truth is itself a circumstance calculated to
awaken strong suspicion as to the real designs of the ship; it is,
in fact,
prima facie evidence of fraudulent intention.
In the case of
The Carolina, [
Footnote 3] where a cargo was taken on a voyage from
Bayonne, ostensibly to Altona, but in fact to Ostend, the ship's
papers represented that the cargo was to be delivered at Altona and
Hamburgh, and the court said that if there had been any fair
contingent, deliberative intention of going to Ostend, that ought
to have appeared on the bills of lading, for it ought not to be an
absolute destination to Hamburgh if it was at all a question
whether the ship might not go to Ostend, a port of the enemy, and
that there was in this a fraudulent concealment of an important
circumstance which ought to have been disclosed. Of the same
purport are all the authorities. [
Footnote 4]
Page 70 U. S. 235
Aside from these considerations, the intention to break the
blockade is to be presumed from the position of the ship when
captured. As already stated, she knew of the blockade when she
sailed from Liverpool; she had no just reason to suppose it had
been discontinued; her approach, under these circumstances, to the
mouth of the blockaded port for inquiry was itself a breach of the
blockade, and subjected both vessel and cargo to seizure and
condemnation. The rule on this point is well settled, and is
founded in obvious reasons of policy. If approach for inquiry were
permissible it will be readily seen that the greatest facilities
would be afforded to elude the blockade, the liberty of inquiry
would be a license to attempt to enter the blockaded port, and that
information was sought would be the plea in every case of seizure.
With a liberty of this kind, the difficulty of enforcing an
efficient blockade would be greatly augmented. If information be
honestly desired, it must be sought from other quarters. In the
case of the
James Cooke, [
Footnote 5] the ship was captured at the entrance of the
Texel, and the court applied this rule, observing that the approach
of the ship to the mouth of a blockaded port, even to make inquiry,
was in itself a consummation of the offense, and amounted to an
actual breach of the blockade.
In every view, therefore, in which this case can be considered,
we are of opinion that the ship and cargo were rightly condemned,
and we therefore affirm the
Decree of condemnation.
[
See, as to the second point of this case -- inquiry at
a blockaded port --
supra, p.
70 U. S. 84,
The Josephine -- REP.]
[
Footnote 1]
The
Friendschaft, 4 Wheat. 105.
[
Footnote 2]
The San Jose Indiano and Cargo, 2 Gallison 284.
[
Footnote 3]
3 Robinson 75.
[
Footnote 4]
See The Margaretta Charlotte, id., 78, note 1;
The
America, id., 36;
The Neptunus, id., 80;
The
Nancy, id., 82;
The Phoenix, id., 186.
[
Footnote 5]
Edwards 263.
