that the vessel "of course was "not to be sold to anyone;" stated that "a power of attorney, for certain purposes," would be sent to the firm by the next mail, and expressed the hope that they would "be able to get some more goods on, instead of taking any off, and at good rates." Commenting upon the evidence, Judge Marvin observed 1. That Nassau furnished no market for such a cargo as that of the Dolphin. "It is," he said, "a small town. The adjacent islands possess but a small population, dependent on it for supplies. Probably not three merchant steamers ever arrived at that port from any part of the world until after the present blockade was established, except the regular Government mail steamers. Was her cargo to be sold in Nassau, including the 920 rifles and the 2,240 swords? These are questions which it is not unreasonable that a prize court should ask and expect some reasonable explanation of in a case like this.” 2. That it appeared that Mr. Grazebrook did not intend that the vessel should be sold at Nassau or that her voyage should end there. "She was," said Judge, Marvin, "to go from Nassau somewhere. More goods were to be put on, instead of taking any off. The studied effort to conceal the ulterior destination; the swords and rifles found on board, and denominated hardware;' the almost certain impossibility of employing a steamer of this class and size in any trade in this part of the world by which she could earn even her expenses, other than in the trade and business of violating the blockade; all point with unerring certainty to Charleston or Wilmington as the ulterior destination of the vessel and cargo." Both were accordingly condemned, and no appeal was taken. The Dolphin (May, 1863), 7 Fed. Cases, 868. For the reports of Commander Fleming, see Official Records of the Union and Confederate Navies, Ser. I., vol. 2, pp. 135, 136. The Dolphin was "on the list," supra, and had been under observation for several days. (Id. 131.) Judge Marvin in the course of his opinion cited The Columbia, 1 C. Rob. 154; The Neptunus, 2 C. Rob. 110; The Imina, 3 C. Rob. 167; The Maria, 5 C. Rob. 365; The William, 5 C. Rob, 385; The Richmond, 5 C. Rob. 325; The Thomyris, Edwards's Adm. 17; The Odin, 1 C. Rob. 252. May 6, 1863, Judge Marvin decided the case of the Pearl. This vessel, a small steamer of 72.17 tons net, was captured by the U. S. S. Tioga January 20, 1863, about 60 or 70 miles from Nassau, while ostensibly on a voyage from Liverpool to that port. A claim to the vessel was made by the master on behalf of one Wigg, a merchant of Liverpool, and to the cargo on behalf of H. Adderly & Co., of Nassau. In deciding the case Judge Marvin observed that he had already held, in the case of the Dolphin, "that a vessel bound on a voyage from Liverpool to Nassau, with an intention of touching only at the latter port, and of proceeding thence to a blockaded port of the enemy, is engaged in an attempt to violate the blockade, which subjects her to capture, in the antecedent as well as in the ultimate stage of the voyage—before arriving at Nassau, as well as after having left that port. I think the law also is that if an owner sends his vessel to a neutral port, with a settled intention to commence from such a port a series of voyages to a blockaded port, he thereby commences to violate the blockade, and subjects his vessel to capture, notwithstanding he may also intend to unlade the vessel at the neutral port, discharge the crew, and give all other external manifestations of an intention to end the voyage at such port. Where a deliberate purpose exists to violate a blockade, and measures are actually taken to accomplish that object, the law couples the act and the intent together and declares the offense to be complete. The resorting, therefore, to a neutral port for the purpose of the better disguising the intention, or of procuring a pilot for the blockaded port, or of perfecting the arangements, so as to increase the chances of a successful violation of the blockaded port, will not, in the least, extenuate the offense or avoid the penalty. These measures may increase the difficulty of discovering the true intention, but whenever it is discovered it will give to the transaction its true legal character.” The bill of lading stated that the cargo was shipped by Wigg to be delivered to Adderly & Co. No letter of advice, nor any invoice was found among the papers; and seven members of the crew concurred in the understanding that they were engaged in a blockaderunning venture. Nevertheless, as the vessel when captured was really going from one neutral port to another, Judge Marvin stated that he was unwilling to pronounce a condemnation without affording the claimants all the facilities they might desire for rebutting the presumption that they were engaged in an unlawful enterprise. He therefore ordered that the claimant of the vessel "be allowed to produce further evidence, by his own oath and otherwise, touching his interest therein, and the use he intended at the time of capture to make of the vessel after her arrival at Nassau, the trade or business he intended she should be engaged in, and for what purpose she was going to that port; and that the claimant of the goods have time to procure an affidavit of his right and title thereto, and to produce such other proof of neutral ownership as he may be advised." No new evidence was taken under this order; but the court, on a further hearing, probably influenced by the fact that the cargo consisted of 10 bales of cloth and ready-made clothing, and contained nothing distinctively pointing to a belligerent destination, decreed restitution of the vessel and cargo, on payment by the claimants of expenses and costs. The Supreme Court reversed this decree, and condemned both ship and cargo. In pronouncing sentence as to the vessel, the following grounds were mentioned: The fact that the firm of H. Adderly & Co. had become well known in the court as largely engaged in the business of blockade running; the testimony of the crew as to the Confederate destination of the vessel; the failure to take new evidence on the order for further proof; the absence from Wigg's affidavit, produced on the motion for further proof, of any statement as to the use intended to be made of the vessel after her arrival at Nassau, or as to the purpose for which she was going thither; and the defective and suspicious character of other testimony for the claimant. The court declared itself satisfied that the vessel "was destined, either immediately after touching at that port [Nassau], or as soon as practicable after needed repairs, for one of the ports of the blockaded coast." As to the cargo, it was observed that the evidence showed ownership in Wigg rather than in any other person, but that no claim was put in by him. The master put in a claim for Adderly & Co., but in his deposition disclaimed all knowledge of ownership, except from the consignment; and the neglect of the firm to put in an affidavit of title or neutral ownership, under the order for further proof, could not, said the court, be construed otherwise than as an admission that they were not entitled to restitution. The cargo was therefore condemned with the ship. The Pearl (1863), 19 Fed. Cases, 54; (Supreme Court, 1866), 5 Wall. 574. (3) CASE OF THE "STEPHEN HART." § 1258. The doctrine of continuous voyages was next judicially discussed by Judge Betts, of the United States district court for the southern district of New York, in a series of cases of which we may take, as the leading example, that of the Stephen Hart, condemned July 30, 1863. On the same day Judge Betts rendered similar sentences in the cases of the Springbok and the Peterhoff, the case of the Gertrude, which will be mentioned in association with them, having been disposed of by a sentence of condemnation previously in the same month. The Stephen Hart was captured January 29, 1862, by the U. S. S. Supply, off the southern coast of Florida, about 25 miles from Key West and 82 miles from Point de Yeacos, in Cuba. The vessel was claimed by one Harris, a British subject, and the cargo by the firm of Isaac, Campbell & Co., of London. The cargo consisted of arms, ammunition, and military clothing. The vessel was bound ostensibly to Cardenas, in Cuba. There were found on board, at the time of her capture, her register and sundry bills, certificates, telegrams, and letters, a clearance, two log books, a copy of the United States Coast Survey for 1856, and various other papers, but no invoices, no bills of lading, and no manifest. The vessel was originally built and owned in the United States, and there was strong evidence to show that she was enemy's property. The shipping articles specified a voyage from London to Cuba and Sierra Leone and any ports on the coast of Africa, of North or South America, or of the West Indies, and back to the United Kingdom. The letter of instructions from the owners of the cargo directed the master to proceed to Cardenas, Cuba, and on arrival there to report to "Charles J. Helm, esq.," who was to direct his future actions with reference to the schooner and cargo. Charles J. Helm was the agent of the Confederate States in Cuba. The first mate testified that "the destination of the cargo was certainly to one of the Confederate States, and the vessel was in like manner so destined, if Charles J. Helm, the Confederate agent at Cuba, should so direct." He narrated at length how he had met Mr. Yancey and other well-known agents of the Confederacy at the house of Isaac, Campbell & Co., and how he was at first employed to undertake a blockade-running adventure on the steamer Gladiator, and was afterwards transferred to the Stephen Hart, nominally as mate but really in charge of the cargo. Before the Stephen Hart sailed he was directed by one of the Confederate agents to proceed to Cardenas and there work under the instructions of Charles J. Helm, and he was informed that the cargo was to be transshipped into a steamer which could with greater facility run the blockade, unless, indeed, the Stephen Hart should be ordered to proceed herself. Upon this and much other evidence of similar purport, Judge Betts declared that no doubt was left upon his mind that the case was one of a manifest attempt to introduce contraband goods into the enemy's territory by a breach of blockade." There was an absence of all papers and circumstances to warrant the conclusion "that there was any intent to dispose of the cargo at Cardenas in the usual way of lawful commerce." The consignee of the entire cargo was the agent of the enemy, and it was laden on board by the enemy's agent in London. The broad issue upon the merits of the cause was, said Judge Betts, "whether the adventure of the Stephen Hart was the honest voyage of a neutral vessel from one neutral port to another neutra! port, carrying neutral goods between those two ports only, or was a simulated voyage, the cargo being contraband of war, and being really destined for the use of the enemy, and to be introduced into the enemy's country by a breach of blockade by the Stephen Hart, or by transhipment from her to another vessel at Cardenas." This question, declared Judge Betts, was not to be decided by merely ascertaining whether the vessel was documented for, and sailing upon a voyage from London to Cardenas. If the inquiry were thus limited a very wide door would be opened for fraud and evasion." The commerce consisted in the destination and intended use of the property laden on board the vessel, and the proper test to be applied was whether the contraband goods are intended for sale or consumption in the neutral market, or whether the direct and intended object of their transportation is to supply the enemy with them." If such was the object they were not exempt from forfeiture merely on the ground that they were neutral property, and that the port of delivery was also neutral. In this relation Judge Betts said: "If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty intention can not be obliterated by the innocent intention of stopping at a neutral port on the way. If there be, in stopping at such port, no intention of transshipping the cargo, and if it is to proceed to the enemy's country in the same vessel in which it came from England, of course there can be no purpose of lawful neutral commerce at the neutral port by the sale or use of the cargo in the market there; and the sole purpose of stopping at the neutral port must merely be to have upon the papers of the vessel an ostensible neutral terminus for the voyage. If, on the other hand, the object of stopping at the neutral port be to tranship the cargo to another vessel to be transported to a port of the enemy, while the vessel in which it was brought from England does not proceed to the port of the enemy, there is equally an absence of all lawful neutral commerce at the neutral port; and the only commerce carried on in the case is that of the transportation of the contraband cargo from the English port to the port of the enemy, as was intended when it left the English port. This court holds that, in all such cases, the transportation or voyage of the contraband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful throughout; and that the vessel and her cargo are subject to capture, as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transportation by sea from such neutral port to the port of the enemy." |