U.S. Supreme Court
The Springbok, 72 U.S. 5 Wall. 1 1 (1866)
72 U.S. (5 Wall.) 1
1. Though invocation, in prize cases, is not regularly made on original hearing, but only after a cause has been fully heard on the ship's documents and the preparatory proofs, and where suspicious circumstances appear from these, yet where the court below, in the exercise of its discretion, has allowed it on first hearing, the decree will not necessarily be reversed, decrees of condemnation having passed in both the cases invoked, one pro confesso and the other by a decree of the highest appellate court.
2. Where the papers of a ship sailing under a charter party are all genuine and regular and show a voyage between ports neutral within the meaning of international law, where there has been no concealment nor spoliation of them, where the stipulations of the charter party in favor of the owners are apparently in good faith, where the owners are neutrals, have no interest in the cargo, and have not previously in any way violated neutral obligations, and there is no sufficient proof that they have any knowledge of the unlawful destination of the cargo, in such a case, its aspect being otherwise fair, the vessel will not be condemned because the neutral port to which it is sailing has been constantly and notoriously used as a port of call and transshipment by persons engaged in systematic violation of blockade and in the conveyance of contraband of war, and was meant by the owners of the cargo carried on this ship to be so used in regard to it.
3. The facts that the master declared himself ignorant as to what a part of his cargo, of which invoices were not on board (having been sent by mail to the port of destination) consisted, such part having been contraband, and also declared himself ignorant of the cause of capture, when his mate, boatswain and steward all testified that they understood it to be the vessel's having contraband on board, held not sufficient, of chanroblesvirtualawlibrary
themselves, to infer guilt to the owners of the vessel, in no way compromised with the cargo. But the misrepresentation of the master as to his knowledge of the ground of capture held to deprive the owners of costs on restoration.
4. A cargo was here condemned for intent to run a blockade where the vessel was sailing to a port such as that above described, the bills of lading disclosing the contents of 619 packages of 2007 which made the cargo, the contents of the remaining 1388 being not disclosed; where both they and the manifest made the cargo deliverable to order, the master being directed by his letter of instructions to report himself on arrival at the neutral port to H., who "would give him orders as to the delivery of his cargo;" where a certain fraction of the cargo whose contents were undisclosed was specially fitted for the enemy's military use and a larger part capable of being adapted to it; where other vessels owned by the owners of the cargo, and by the charterer, and sailing ostensibly for neutral ports were, on invocation, shown to have been engaged in blockade running, many packages on one of the vessels, and numbered in a broken series of numbers, finding many of the complemental numbers on the vessel now under adjudication; where no application was made to take further proof in explanation of these facts, and the claim of the cargo, libeled at New York, was not personally sworn to by either of the persons owning it, resident in England, but was sworn to by an agent at New York, on "information and belief."
Appeal from a decree of the District Court of the United States for the Southern District of New York respecting the British bark Springbok and her cargo, which had been captured at sea by the United States gunboat Sonoma during the late rebellion and libeled in the said court for prize.
The vessel was owned by May & Co., British subjects, and was commanded by James May, son of one of the owners.
She had been chartered 12th November, 1862, by authority of May, the captain, to T. S. Begbie, of London, to take a full cargo of
"Lawful merchandise, and therewith proceed to Nassau, or so near thereunto as she may safely get, and deliver same, on being paid freight as follows &c., the freight to be paid one-half in advance on clearance from custom house, subject to insurance, and the remainder in cash on delivery. Bills of lading are to be signed by master at current rate of freight, if required, without prejudice to this charter party. It being agreed that master or owners have absolute lien on cargo for all freight, dead freight,
demurrage, or other charges. The ship is to be consigned to the charter's agent at port of unloading, free of commission. Thirty running days are allowed the freighter for loading at port of loading and discharging at Nassau."
This document had an endorsement on it by Speyer & Haywood, persons hereinafter described.
The letter of instructions to the master was thus:
"LONDON, December 8, 1862"
"CAPTAIN JAMES MAY."
"Dear Sir -- Your vessel being now loaded, you will proceed at once to the port of Nassau, N.P., and on arrival report yourself to Mr. B. W. Hart there, who will give you orders as to the delivery of your cargo and any further information you may require."
"We are, dear sir &c.,"
"SPEYER & HAYWOOD,"
"For the Charters"
The letter to the agent of the consignee, directed "B. W. Hart, Nassau," and from these same persons, Speyer & Heywood, was thus:
"Under instructions from Messrs. Isaac, Campbell & Co., of Jermyn Street, we enclose you bills of lading for goods shipped per Springbok, consigned to you."
The London custom house certificate was "from London to Nassau;" the certificate of clearance declared the "destination of voyage, Nassau, N.P.;" and the manifest was of a cargo from "London to Nassau."
The log book was headed, "Log book of the bark Springbok on a voyage from London to Nassau."
The shipping articles, November, 1862, were of a British crew,
"on a voyage from London to Nassau, N.P.; thence, if required, to any other port of the West India Islands, American ports, British North America, east coast of South America and back to the final port discharge in the United Kingdom or continent of Europe, between the Elbe and Brest, and finally to a port in the United Kingdom; voyage probably under twelve months. "
The cargo, valued at Ł66,000, was covered by three bills of lading (of which two were duplicated, the duplicates marked Captain's copies), as follows:
Bill of lading market No. 2 showed "666 packages merchandise," shipped by Moses Brothers, to be delivered &c., at port of Nassau, N.P., unto order _____ or to _____ assigns, he or they paying freight, as per charter party. It was endorsed by Moses Brothers in blank. This bill of lading on its face showed 150 chests and 150 half-chests tea, 220 bags coffee, 4 cases ginger, 19 bags pimento, 10 bags cloves, and 60 bags pepper -- in all, 613 packages. The remaining 53 were entered as cases, kegs, and casks. These 53 packages were found, when the cargo was more closely examined, to contain medicines and saltpetre, matters at that time much needed in the Southern states, then under blockade.
Bill of lading No. 3 showed one bale and one case shipped by Speyer & Haywood, to be delivered at Nassau unto order _____
Bill of lading No. 3 showed one bale and one case shipped by Speyer & Haywood, to be delivered at Nassau unto order _____
Bill of lading No. 3 showed one bale and one case shipped by Speyer & Haywood, to be delivered at Nassau unto order _____ or to _____ assigns &c., paying freight as per charter party.
Bill of lading No. 4 showed 1,339 packages shipped by Speyer & Haywood to Nassau, as above. These 1,339 packages were also described as cases, bales, boxes, and a trunk. This was also endorsed in blank.
The manifest gave no more specific description of the character of the cargo. It was signed Speyer & Haywood, brokers, and showed that the whole cargo was consigned to "order."
An examination of the packages in bills Nos. 3 and 4 showed 540 pairs of "gray army blankets," like those used in the army of the United States, and 24 pairs of "white blankets;" 360 gross of brass navy buttons, marked "C.S.N.," [Footnote 1] 10 gross of army buttons marked "A.," [Footnote 2] 397 gross of army buttons marked "I.," [Footnote 3] and 148 gross of army buttons marked "C.," [Footnote 4] being in all 555 gross; all the buttons were stamped on the under side "Isaac Campbell & chanroblesvirtualawlibrary
Co., 71 Jermyn St., London." There were 8 cavalry sabres, having the British crown on their guards; 11 sword bayonets, 992 pairs of army boots, 97 pairs of russet brogans, and 47 pairs of cavalry boots &c.
The vessel set sail from London, December 8, 1862, and was captured February 3, 1863, making for the harbor of Nassau, in the British neutral island of New Providence and about 150 miles east of that place. The port, which lay not very far from a part of the southern coast of the United States, it was matter of common knowledge had been largely used as one for call and transshipment of cargoes intended for the ports of the insurrectionary states of the Union, then under blockade by the federal government. [Footnote 5] The vessel when captured made no resistance, and all her papers were given up without attempt at concealment or spoliation.
Being brought into the port of New York and libeled there as prize, February 12, 1863, a claim was put in on the 9th of March following by Captain May for his father and others as owners of the vessel. On the 24th of the same month, a claim for the whole cargo was put in for Isaac, Campbell & Co., and also for Begbie through one Kursheet, their "agent and attorney;" Kursheet stating in his affidavit in behalf of these owners that "it is impossible to communicate with them in time to allow them to make the claim and test affidavit herein." His affidavit stated farther,
"That as he is informed and believes, it was not intended that the barque should attempt to enter any port of the United States or that her cargo should be delivered at any such port, but that the only destination of such cargo was Nassau aforesaid, where the said cargo was to be actually disposed of and proceeds remitted to said claimants."
"That, as he is informed and believes, the cargo was not shipped in pursuance of any understanding either directly or indirectly, with any of the enemies of the United States or with any person or persons in behalf of or connected with the so-called Confederate
States of America, but was shipped with the full, fair, and honest intent to sell and dispose of the same absolutely in the market of Nassau aforesaid."
"That his information is derived from letters and communications very lately received by this deponent from the aforesaid claimants, and from documents in deponent's possession, placed there by said claimants, and that such communications authorize this deponent to intervene and act as agent as well as proctor and advocate for the said claimants as to the above cargo."
The master, mate, and steward, were examined as witnesses in preparatorio:
The master stated that the goods were to be delivered at Nassau for account and risk of Begbie & Co., London, the charterers; that he did not know that the laders or consignees had any interest in the goods; that he knew nothing of the qualities, quantities, or particulars of the goods or to whom they would belong if restored and delivered at the destined port; that he was not aware that there were goods contraband of war on board; that, as he believed, invoices and duplicate bills of lading were sent to Nassau by mail steamer; that there were no false bills of lading, nor any passports or sea-briefs other than the usual register and ship's papers, which were entirely true and fair; that he did not know on what pretense she was captured; that there were no persons on board owing allegiance to the United States; that on the vessel's previous voyage, she went from London to Jamaica, carrying general merchandise, and returned direct, carrying principally logwood.
The mate, who to a greater or less extent confirmed these statements, swore that the cargo was a general cargo -- casks, bales, boxes, and bags; that he had no knowledge, information, or belief as to what was contained in them, and had never heard. He knew of no goods contraband of war; no arms or munitions of war that he knew of. "The seizure," he stated, "was made on the supposition that the cargo was contraband of war."
The boatswain testified to the same purpose of the voyage; that the vessel had no colors but English aboard; that the chanroblesvirtualawlibrary
cargo was general, in bales, cases, and bags, that he did not know their contents and never had heard them stated, and that he "understood the seizure was made because the bills of lading did not show what was in some of the cases on board."
The steward, that he "understood the vessel was captured because we had goods contraband of war aboard; had heard no other reason given."
Upon the hearing in the district court, the counsel for the captors invoked into the case the proofs taken in two other cases, on the docket of that court for trial at the same time with the present one, the cases, namely, of United States v. Steamer Gertrude and United States v. Schooner Stephen Hart.
The Hart was captured on the 29th of January, 1862, between the southern cost of Florida and the Island of Cuba. The claimants of her whole cargo were the firm of Isaac, Campbell & Co., the same persons who claimed, jointly with Begbie, the cargo of the Springbok. It also appeared in the case of the Hart that the brokers who had charge of the lading of her cargo were Speyer & Haywood, the same parties who appeared as brokers of the cargo in the present case, and as shippers of a part of it, and as agents for Begbie and for I., C. & Co. It appeared in the case of the Hart that I., C. & Co. were dealers in military goods, and that the entire cargo of that vessel, consisting of arms, munitions of war, and military equipments, was laden on board of her in England under the direction of I., C. & Co., in cooperation with the agents, at London, of the "Confederate States" with the design that the cargo should run the blockade into a port of the enemy either in the Hart or in a vessel into which the cargo should be transshipped at some place in Cuba, and that I., C. & Co. entrusted to the agent of the "Confederate States" in Cuba, the determination of the question as to the mode in which the cargo should be transported into the enemy's port. The cargo of the Hart had been condemned by the Supreme Court as lawful prize at the last term. U.S. [Footnote 6] chanroblesvirtualawlibrary
The Gertrude was captured on the 16th of April, 1863, in the Atlantic Ocean off one of the Bahama Islands while on a voyage ostensibly from Nassau to St. John's, N.B. The libel was filed against her on the 23d of April, 1863, and she was condemned with her cargo as lawful prize on the 21st of July, 1863. No claim was put in to either the Gertrude or her cargo. The testimony showed that she belonged to Begbie; that her cargo consisted, among other things, of hops, dry goods, drugs, leather, cotton cards, paper, 3960 pairs of gray army blankets, 335 pairs of white blankets, linen, woolen shirts, flannel, 750 pairs of army brogans, Congress gaiters, and 24,900 pounds of powder; that she was captured after a chase of three hours, and when making for the harbor of Charleston, her master knowing of it blockade and having on board a Charleston pilot under an assumed name.
The marshal's report of the contents of the packages on board of the Springbok and of the prize commissioners' report of the contents of the packages of the Gertrude disclose the following facts:
The report in the case of the Springbok specified "18 bales of army blankets, butternut color," each marked A, in a diamond, and numbered 544 to 548, 550, 552, and 555 to 565. The report in the case of the Gertrude showed a large number of bales of "army blankets," each marked A, in a diamond, and numbered with numbers, scattered from 243 to 534, and then commencing to renumber again at 600.
In the cargo of the Springbok was found a bale marked A, in a diamond, and numbered 779; while in the cargo of the Gertrude were found bales each marked A, in a diamond, and numbered 780, 782, 784, 786, 788, 789 to 799.
In the Springbok were found 9 cases, each marked A, in a diamond, and numbered 976 to 984, and 4 bales, each marked A, in a diamond, and numbered 985 to 987 and 989, by the same marks, the 4 bales being stated to be "men's colored traveling shirts." In the Gertrude were found 5 bales, each marked A in a diamond and numbered 998, 990, to 992 and 998, and described as "men's colored traveling chanroblesvirtualawlibrary
shirts." In the Hart were 4 cases of men's white shirts, each marked A in a diamond and numbered 994 to 997.
So also, in the Springbok were found packages each marked A, in a diamond, S. I., C. & Co., and numbered irrgularly and with considerable hiatus, from 1221 up to 1440. But there was no 1285 among them, the hiatus being from 1266 to 1289, which last was the first of several having "shirts." On the Gertrude were packages marked A, in a diamond, numbered from 1170 to 1214, also one numbered 1285, and found to contain "shirts."
On board of the Springbok was found 1 bale of brown wrapping paper, marked A, in a diamond, T. S. & Co. and numbered 264. On board of the Gertrude a large number of bales of wrapping paper and other paper marked A, in a diamond, T. S. & CO. and numbered with numbers scattered between 1 and 170.
In only one instance, apparently, so far as the testimony showed, was the same number found on a package in each cargo.
On the other hand, many marks were found on the one vessel not found on the other.
No application was made in the court below for leave to furnish further proofs.
The court below condemned both vessel and cargo. chanroblesvirtualawlibrary