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persuasive, indeed, if it should not be held to have been adopted and p. 382 ratified by the reproduction in the proclamation | of the President of the very language of the Order in Council, so many years after that order had been thus construed by the British Admiralty tribunal.

P. 383

Thinking that the condemnation of this ship under the circumstances disclosed by the record will subject innocent private property to condemnation without just cause, will deprive it of the protection afforded by the proclamation of the President, which, according to its terms, but carried out those commendable principles of honesty and humanity, enforced by all civilized nations on the outbreak of war, I am constrained to dissent.

The Guido.

(175 U.S. Reports, 382) 1899.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF FLORIDA.

No. 122. Argued November 3, 1899.-Decided December 11, 1899.

This was an appeal from a decree condemning the Guido as prize of war. On the facts, concisely stated in the opinion of the court, it is held following The Pedro, ante, that the case was properly disposed of below.

THE statement of the case will be found in the opinion of the court. Wilhelmus Mynderse for Julian de Ormaechea, claimant and appellant. Mr. James H. Hayden for the captors. Mr. Joseph K. McCammon was with him on the brief.

Mr. Assistant Attorney General Hoyt filed a brief for the United States. Mr. George A. King and Mr. William B. King filed a brief for certain captors. I

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

This is an appeal from a decree of the District Court of the United States for the Southern District of Florida condemning the steamer Guido as prize of war.

The Guido belonged to La Compañia La Flecha, a Spanish corporation of Bilboa, Spain, and sailed under Spanish registry and the Spanish flag, having a royal patent from the Crown of Spain, and being officered and manned by Spanish subjects. Her voyage began at Liverpool, whence she proceeded to Santander, Corunna and La Puebla, Spain. At Liverpool and at each of the Spanish ports she took on cargo consisting principally of food supplies, all shipped to Havana and Cuban ports. It had been her custom to carry cargo from Spanish and other European ports to Cuba, and then proceed to some port of the United States for a return cargo of lumber, and it was her intention on this occasion to do this, but she had no charter or specific engagement, so far as appeared, for the continuation of her voyage after discharging in Cuba. It was certified in her bill of

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health issued at Liverpool that the vessel has complied with the rules and regulations made under the act of February 15, 1893, and that the vessel leaves this port bound for a port (unknown) in the United States of America, via Spain & Cuba ports (unknown).'

The steamer cleared from La Puebla for Havana April 10, and was captured April 27 about seventy miles to the eastward of Havana, and sent to Key West in charge of a prize crew. She was there libelled and proofs in preparatorio were taken. The master appeared on behalf of the owner and asserted claim to the vessel, and moved for leave to take further proofs in respect of matters set forth in his test affidavit therewith filed, which motion was denied. The averments of the affidavits corresponded with those in the case of the Pedro.

We are of the opinion that the case was properly disposed of, and the decree of the District Court is

Affirmed. MR. JUSTICE SHIRAS, MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissented.

The Buena Ventura.

(175 U.S. Reports, 384) 1899.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.

No. 106. Argued November 1, 2, 1899.-Decided December 11, 1899.

In the fourth clause of the President's proclamation of April 26, 1898, issued after the declaration of war against Spain by Congress, April 25, 1898, it was said : '4. Spanish merchant vessels in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places, and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.' The Buena Ventura, a Spanish vessel, being at Cuba in March, 1898, was chartered to proceed with all convenient speed to Ship Island, Mississippi, and there to take on board a cargo of lumber for Rotterdam. Under this charter she arrived at Ship Island in the latter part of March, 1898, and took on a cargo of lumber for Rotterdam. She cleared at the custom house on the 14th of April accordingly, but was detained by low water until April 19, when, between 8 and 9 A.M. she proceeded on her voyage. While so proceeding she was captured by a man of war of the United States about ten miles off the Florida coast. Up to the moment of capture all her officers were ignorant of the existence of a state of war, and the vessel, at the time of her capture, was following the ordinary course of her voyage. After hearing in the District Court of the United States the Buena Ventura was condemned and sold under a decree of court, and the proceeds were deposited to abide the event of an appeal from that decree.

P. 385

Held;

(1) That an innocent vessel like the Buena Ventura, which had loaded within
a port of the United States, and had sailed therefrom before the commence-
ment of the war, was entitled, under the proclamation, to continue its
voyage, that being clearly within the intention of the President, under the
liberal construction which this court is bound to give to that document;
(2) That the reversal of the judgment below, condemning the Buena Ventura,
should be without costs or damages in her favor;

(3) That the moneys arising from the sale of the vessel must be paid to the
claimant, deducting only the expenses properly incident to her custody
and preservation up to the time of sale. I

DURING the late war between the United States and Spain, and on May 27, 1898, the District Court of the United States for the Southern District of Florida condemned the steamship Buena Ventura as lawful prize of war, on the ground that the said steamship Buena Ventura was enemy's property, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure.' It was thereupon ordered that the vessel 'be condemned and forfeited to the United States as lawful prize of war; but it appearing that the cargo of said steamer was the property of neutrals and not contraband and subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimant or the true and lawful owners thereof.'

The vessel was captured on April 22, 1898, eight or nine miles from Sand Key light, on the Florida coast, by the United States ship of war Nashville, under the command of a line officer of the United States Navy, was brought into the port of Key West for adjudication, and was condemned upon the answers, given by the master and mate of the steamship, to standing interrogatories in preparatorio, and upon the documents seized on board the ship by the captors. This evidence showed that the steamship was a Spanish vessel engaged exclusively in the carrying of cargoes, and that at the time of her capture she was making a voyage under a charter party which had been concluded in Liverpool on March 23, 1898, between the agents of the owners and the agents of the charterers.. By this charter party the steamship was described as now ready to leave Cuba; ' and it was agreed upon therein that the vessel should with all convenient speed proceed to Ship Island, Mississippi, and there take on a cargo of lumber, and proceed therewith, as customary, to Rotterdam. The vessel was to be at her loading place and ready for cargo on or before the 10th of April, and if she were not, the charterers had the option of cancelling the charter. Pursuant to this charter party the ship left Cuba and arrived at Ship Island about the 31st of March, and between that time and the 19th of April she had p. 386 taken on her cargo, and on the | latter day had sailed from Ship Island bound for Norfolk, Virginia, to take in bunker coal, the charter party

giving the vessel the liberty to stop at any port on the voyage for coal, then to proceed to Rotterdam. After leaving port at Ship Island she proceeded on her voyage to Norfolk, and about half-past seven o'clock on the morning of April 22, while proceeding close to the Florida reefs, was captured as stated. She made no resistance at the time of her capture, there were no military or naval officers on board of her, and she carried no arms or munitions of war. The evidence is undisputed that the vessel, when captured, was proceeding on her voyage to Norfolk.

Previous to sailing from Ship Island she was furnished with a bill of health, in which it was stated that she was now ready to depart from the port of Pascagoula, Mississippi, [which is the customs port of Ship Island,] for Norfolk, Virginia, and other places beyond the sea.' Her manifest showed that she was bound for Norfolk. It is headed 'Coast Manifest,' and after a description of the cargo it continues: 'Permission is hereby granted to said vessel to proceed from this port to Norfolk, in the district of Norfolk and State of Virginia, to lade bunker coal; and it was signed and sealed by the deputy collector of Pascagoula, district of Pearl River, Mississippi, on April 14, 1898, and the fees therefor paid.

The ship's clearance was for Norfolk, and contained the same permission to proceed there, to lade bunker coal.

There was no evidence which tended to throw any suspicion as to the destination of the vessel.

After obtaining all of her papers in the regular way, and having cleared at the custom house on April 14, 1898, she was detained at Ship Island by low water until between eight and nine o'clock A.M. of April 19, 1898, when she sailed over the bar and proceeded on her voyage.

In the test affidavit of the master he swore that at all times before the ship's seizure he and all of his officers were ignorant that war existed between Spain and the United States, and the vessel at the time of her capture was following the ordinary course of her voyage. |

The various proceedings of Congress, proclamations of the President, p. 387 letters of the Secretary of State, and other public documents connected with occurrences leading up to the breaking out of hostilities between this country and Spain are contained in this record, but are also set forth at sufficient length in the statement of facts contained in the report of the case of The Pedro, ante, and it is unnecessary, therefore, to repeat them.

After a hearing the District Court on the 27th of May, 1898, condemned the vessel, 87 Fed. Rep. 927, which was sold under the final decree of the court, and her proceeds deposited to abide the event of an appeal, which was then taken on the part of the claimant.

Mr. J. Parker Kirlin for appellant.

Mr. Assistant Attorney General Hoyt for the United States.

Mr. Joseph K. McCammon and Mr. James H. Hayden, for the naval captors, were on Mr. Hoyt's brief.

Mr. George A. King and Mr. William B. King filed a brief for certain captors.

MR. JUSTICE PECKHAM, after stating the facts as above, delivered the opinion of the court.

The Buena Ventura was a Spanish merchant vessel in the peaceful prosecution of her voyage to Norfolk, Virginia, from Ship Island, in the State of Mississippi, when, on the morning of April 22, 1898, she was captured as lawful prize of war, of the existence of which, up to the moment of capture, all her officers were ignorant. She was not violating any blockade, carried neither contraband of war nor any officer in the military or naval service of the enemy, nor any dispatch of or to the Spanish Government, and attempted no resistance when captured.

P. 388 The facts regarding this vessel place her within that class | which this Government has always desired to treat with great liberality. It is, as we think, historically accurate to say that this Government has always been, in its views, among the most advanced of the Governments of the world in favor of mitigating, as to all non-combatants, the hardships and horrors of war. To accomplish that object it has always advocated those rules which would in most cases do away with the right to capture the private property of an enemy on the high seas. 3 Wharton's International Law Digest, § 342. The refusal of this Government to agree to the Declaration of Paris was founded in part upon the refusal of the other Governments to agree to the proposition exempting private property, not contraband, from capture upon the sea.

It being plain that merchant vessels of the enemy carrying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out, would, in accordance with the later practice of civilized nations, be the subject of liberal treatment by the Executive, it is necessary when his proclamation has been issued, which lays down rules for treatment of merchant vessels, to put upon the words used therein the most liberal and extensive interpretation of which they are capable; and where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued, ought to be adopted.

This is the doctrine of the English courts, as exemplified in The Phoenix, Spink's Prize Cases, 1, 5, and The Argo, Id. p. 52. It is the doctrine which this court believes to be proper and correct.

To ascertain the intention of the Executive we must look to the words which he uses. If the language is plain and clear, and the meaning

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