The Dashing Wave, 72 U.S. 170 (1866)
U.S. Supreme CourtThe Dashing Wave, 72 U.S. 5 Wall. 170 170 (1866)
The Dashing Wave
72 U.S. (5 Wall.) 170
1. A neutral, professing to be engaged in trade with a neutral port under circumstances which warrant close observation by a blockading squadron, must keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the blockading line as to repel, so far as position can repel, all imputation of intent to break the blockade. Neglect of that duty may well justify capture and sending in for adjudication, though, in the absence of positive evidence that the neglect was willful, it might not justify a condemnation.
2. Where a party whose national character does not appear gives his own money to a neutral house, to be shipped with money of that house and in their name to a neutral port in immediate proximity to a blockaded region, and an attorney in fact, on capture of the money and libel of it as prize, states that such neutral house are the owners thereof and that "no other persons are interested therein," the capture and sending in will be justified, though in the absence of proof of an enemy's character in the party shipping his money with the neutral's, a condemnation may not be.
3. On a capture of a vessel unobservant, through mere carelessness, of the duty first above mentioned and containing money shipped under the circumstances just stated, a decree was made restoring the vessel and cargo, including the money, but apportioning the costs and expenses consequent on the capture ratably between the vessel and the coin, exempting from contribution the rest of the cargo.
During the late Rebellion and while the coast of the Southern states, including that of Texas to the mouth of the Rio Grande, was under blockade by the United States, the Dashing Wave, a British-owned brig, was captured at anchor by a United States gunboat off the mouth of that river, the dividing
stream between the United States and Mexico, a neutral, and libeled as prize of war in the District Court of New Orleans. The vessel was employed as a general ship on a voyage from Liverpool to Matamoras, a Mexican town on the Rio Grande directly opposite to Texas. She had been freighted at Liverpool in 1862 with an assorted cargo, consigned by ten or more shippers to various persons and firms described as resident at Matamoras. There was no contraband aboard. The most remarkable shipment was one of 12,000 gold coin in the name of Lizardi & Co., British subjects of Liverpool. By claim put in after the libel filed for Lizardi & Co. by their agent at New Orleans, it was claimed as their property, it being stated that no other persons were interested therein. Correspondence found on board the captured vessel showed, however, that 7000 of the 12,000 were owned by one H. N. Caldwell, and had been shipped to the Matamoras consignee for the purchase of cotton either in Texas or Matamoras on the joint account of Lizardi & Co. and Caldwell.
The residence and business of Caldwell were not fully disclosed in the record. It did not appear that he was a British merchant, nor that he had any commercial domicil in Mexico, nor yet that he was a rebel enemy. He had apparently married in England shortly before the vessel sailed, and was on board with his wife and servant at the time of capture. The nationality of the wife and servant the captain stated to be English, but he did not know what that of Caldwell was. They were all permitted to go ashore with their luggage by the boarding officer. Caldwell had apparently no interest in the vessel or cargo. He appeared by the letters to have been engaged in cotton transactions and to have proposed to Lizardi & Co. the plan of shipping all the gold to Mexico as their own property. Caldwell made no claim for any part of the gold, nor did he personally appear in any way in the case.
On the proofs in preparatorio, the place of capture, as respecting the middle or dividing line of the Rio Grande, appeared doubtful.
The testimony of naval witnesses, examined under an order which had been obtained by the captors for further proof as to the place of capture and the character of the cargo, asserted that the vessel, when seized, was on the northern -- that is to say the American -- side of the boundary line, and in our waters. The master swore to the contrary.
In point of fact, as appeared by a Coast Survey chart, on which her exact position was marked by a witness of the captors, the master was wrong. The vessel was in waters actually blockaded. The position of the vessel made access to our coast, then in possession of enemy rebels, and under blockade, as easy as to that of Mexico, a neutral. (See chart opposite, inserted for convenience, laterally.)
The district court at New Orleans made two decrees, one restoring the vessel and cargo -- a decree from which the United States now appealed, the second refusing damages and ordering payment of costs and charges (exceeding $12,000) by the claimants -- from which decree the claimants appealed.
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