The Peterhoff
Opinion of the Court
The steamer Pe-terhoff was captured, as lawful prize of war, on the 25th of February, 1863, by the United States steamer Vanderbilt, off the island of St. Thomas, about four and one-half miles from the outer road or mouth of the harbor. She was placed in charge of a prize-master, who proceeded with her to Key West. The United States district judge, the marshal, and the district attorney being absent on her arrival at Key West, the prize-master reported to Admiral Bailey, the naval officer in command at Key West, who -ordered the prize-master to proceed with the prize to New York. She arrived there on the 28th of March, and the libel in this case was filed on the 30th of March.
On the 21st of April, 1863, Stephen Jar-man, the master of the Peterhoff, intervening for the interest of the owners of the vessel and her cargo, filed a claim to the vessel and her cargo, on behalf of such owners, as his principals, not disclosing any names, but averring that he was master of the vessel at the time of her seizure, duly appointed by her owners,* and was their lawful agent, and the rightful bailee of the vessel and cargo.
On the same day, Robert Mackie, of New York, the agent of Lloyd’s, intervening for the interest of the underwriters of the Peter-hoff and her cargo, filed a claim to both, for such underwriters. He averred, in the claim, that the vessel and her cargo were fully insured by his principals, and that the ownership of both was vested in them, and denied the lawfulness of the capture, and prayed the restoration of the vessel and cargo- to him or to his principals.' The test oath to this claim was made by Mr. Mackie, and averred that the vessel and cargo belonged, at the time they were seized, to subjects of Great Britain.
On the fil’d of April, 1803, a claim was filed by Samuel J. Redgate, in which he represented himself as “late of Texas, and lately a political, refugee from that state, but more recently sojourning in Great Britain, merchant. intervening for himself, as owner, agent, and consignee of a large portion of the cargo of the said steamer PeterhofC, of the value of three hundred and seventy-five thousand dolíais, or thereabouts.” He claimed so much of the cargo as stood in his name “as owner or consignee, or under power of attorney to act as consignee or agent, for himself and principals,” and stated that he was bona fide owner, consignee or agent of that portion of the cargo, and was employed to attend to and protect the interests in that portion, and to demand restitution thereof, with damages for unlawful detention “in behalf of himself as owner, consignee or agent, and also in behalf of the underwriters," and denied the lawfulness of the capture. The test oath to this claim was made by Redgate, and averred that such portion of the cargo belonged to him as owner, consignee, agent, &e., as set forth in the claim.
On the same day, George W. Almond, who represented himself as a “resident of the city of London, and a subject of the crown of Great Britain, merchant, intervening for himself as owner, and as agent and consignee, of a portion of the cargo of said steamer PeterhofC, of the value of one hundred and fifty thousand dollars, or thereabouts,” filed a claim to “that portion of said cargo which stands in his name as owner or consignee, or under power of attorney to act as consignee or agent, for himself and principals,” and stated that he was bona fide owner, consignee or agent of that portion of the cargo, and was authorized to attend to and protect the interests in that portion of the cargo, and to demand restitution thereof, with damages for unlawful capture and detention, “in behalf of himself as owner, consignee, or agent, and also in behalf of the •underwriters,” and denied the lawfulness of the capture. The test oath to this claim was made by Almond, and averred that the above-named portion of the cargo belonged to him as owner, consignee, agent.. &c., as set forth in the claim.
The depositions in preparatorio, taken in the case, are those of Stephen Jarman, master, Henry Bound, first mate, Walter N. Harris, second mate, Christopher H. Tregidgo, third mate, Robert Bowden, George W. Almond, and Samuel J. Redgate, passengers, John Murphy, chief engineer, John Murphy, first assistant engineer, Thomas Webber, steward, George Duff ay, fireman, James Diamond, cook, and John Reed and John J. Campbell, seamen. These depositions were all taken in April, ISCo. Jarman, Bowden and Almond having been examined on the 1st, Redgate on the 1st and 20th, Bound on the fid, Murphy, first assistant engineer, Diamond and Reed on the 4th. Webber on the 0th, Harris and Tregidgo on the 11th, and Murphy, chief engineer, Duffay and Campbell on the 13th.
Among the articles found on board of the PeterhofC at her capture was a mail bag, which was delivered by the prize master to the prize commissioner. This bag 'was under the official seal of the general postoifice of Great Britain. On the filst of April, 1SG3, an affidavit, made by the district attorney, as attorney for the United States and the captors, was presented to the court, in which he set forth that he had carefully examined all the ship’s papers and evidence taken in prepara-torio in this case, and had inspected the British mail packages found on board of the vessel; that the mail appeared to -be bona fide, authenticated, sealed, public government mail of Great Britain, found on board of a commercial vessel, apparently navigated between London, in England, and Matamoras, in Mexico; that the said evidence furnished no proof that the said mail was false or spurious or simulated, or otherwise thau genuine; and thal he, as attorney for the United States and the captors, under his general authority as district attorney, and under special authority from the government, consented that said mail be given up, to be sent to its destination. Upon this affidavit, an application was made to the court, by the district attorney, that he have leave to withdraw the mail bag from the custody of the court. The special counsel for the captors opposed the application, but the court, on the 22d of April, made an order, which recited that the attorney for the United States was, by law, official master of suits prosecuted by the United States in the prize court, and had thereby authority, at his discretion, to offer to or withhold from the consideration of the court any particular of testimony relative to a prize suit in prosecution in court, under his discretion, and directed that the mail bag be delivered to the attorney for the United States, out of the custody of the court, to be by him disposed of conformably to the instructions of the government of the United States. The counsel for
On the 23th of April, 1863, an affidavit was presented to the court, made by the prize master who brought the Peterhoff to New York, setting forth that she was laden with -a large cargo packed in boxes, bales, and •cases, the true character of which could not otherwise be ascertained than by the unlad-ing, opening, and inspection thereof; that such papers as were found on board of. the vessel very imperfectly disclosed the true contents of the bales, cases, and boxes, and described the same as “merchandise” simply, except in a few instances of artillery boots and army shoes and blankets; and that he had been informed, by persons composing the crew of the captured vessel, that packages of papers of the vessel were burned or thrown overboard as the vessel was about being captured. Upon this affidavit, and on the application of the United States and the captors, an order was made by the court, directing the marshal to cause the cargo of the vessel to be unladen, and stored in a safe warehouse having sufficient accommodations for the unpacking and inspection of the cargo, and appointing three competent persons, Messrs. Edwin Gerard, Henry H. Elliott, and Orison Blunt, to examine and make an inventory of the cargo upon its unlading, and to open the boxes, cases, and bales, and remove their contents, .so far as should be necessary to ascertain the nature and quality of the cargo, and to report to the court the particulars, names, descriptions, and assortments of the goods, with their •marks and numbers, and the nature, use, quantities, and qualities thereof, and any fact they might discover and deem material in the premises, and that, after such inspection, the contents of the packages should be restored to their original condition, and that the seal of the prize commissioners shoula be then placed on the place of storage of the cargo.
The report of the three gentlemen appointed to make an inventory of the cargo was filed on the 2d of June, 1863. They annexed to their report an inventory of the whole of the cargo. Two of the commissioners (Messrs. Blunt and Elliott) state, in the report, “that a very large portion of the said cargo will be found, on an examination of the inventory-aforesaid, to be particularly adapted to army use; that large numbers of the cases contain Blucher boots, which are known as army shoes; a number of cases contain cavalry boots, and are so labelled, samples of said labels being hereto annexed; that 192 bales of the said cargo consist of gray blankets, adapted to the use of an army, and are Believed to be such as are used in the United States army; 95 casks contain horseshoes of a large size; 36 cases of a large size contain artillery harness, in sets for four homes, with two riding saddles attached to each set; there were also on board two hydraulic presses in pieces, adapted for cotton; that a considerable portion of said-cargo consists of drugs, directed Burchard & Co., successors, Matamoros, Mex’o, in which, among an assorted lot of drugs, quinine, calomel, morphine, and chloroform an important portion.” The report states that the cargo consisted of 1,520 cases, 110 trunks, 287 bales, 169 casks, 209 kegs, and 559 bundles of merchandise, 1,343 bundles of •hoop iron, and 280 bundles or bars of steel or iron. Mr. Gerard, one of the commissioners, appended to the report a statement that he concurred in the inventory and description of the cargo, but differed from his colleagues as to that portion of their report which described certain of the cargo as being particularly adapted to the use of an army. The samples of labels referred to as annexed are two in number, and were taken from trunks forming part of the cargo. One of the labels has upon it the words, “100 army Bluchers,” and the other the words, “36 cavalry boots.” It appears, from the inventoiy of the cargo • annexed to the report, that of the 4,477 cases, trunks, bales, casks, kegs, bundles, and bars which the report states to have been found on board, the commissioners opened and examined 842 cases, 43 bales, 114 kegs, 2,109 bundles, 23 casks, and 11 trunks, being in all 3,142 parcels; that among these were 20 cases of Blucher boots, 5 cases of Bluchers and gentlemen’s boots, 66 cases qf Wellington, Napoleon, police, cavalry, and army Blucher boots, 15 cases of army Blucher boots, 2 cases of full-length russet army boots, two cases of black and russet Bluchers, 3 packages of shoes and light Blucher boots, 1 bale of gray-mixed blankets, one bale of army or gray blankets, 9 bales of mixed and gray blankets, 1 bale of white blankets, 2 eases of artillery ■ harness and chains, 2 packages of saddles and hardware, 2 packages of saddlery and quinine, 11 cases of drugs, 1 case of quinine, 2 cases of assorted drugs, 5 kegs of nails, 107 iron kegs of nails, 9 bags of horseshoe nails, 1 cask of horseshoes, 3 packages of saddlery hardware, 2 cases of buckles, 4 cases of hinges, screws, stocks, and dies, 3 casks of hardware, 3 cases of cast steel and files, 280 bundles or bars of steel or iron, 5 cases of planes, axes, &c., 6 packages of planes and hardware, 2 packages of saws and files, 6 packages of pickaxes and handles, axes and hatchets, 147 bundles of spades and shovels, .42 anvils, 60 blacksmiths’ bellows, 1 cask of vices, 2 cases and 9 bundles of machinery, being an iron bed-plate, and iron piston-rod, and other articles for a press, 1,343 bundles of hoop-iron, 501 boxes of tin, 1 case of horse-brushes, 6 cases of red, white, and blue bunting, and 305 coils of rope.
A large number of papers were found on board of the Peterhoff at the time of her capture, and have been laid before the court. The affidavit of the prize master, taken according to the usual practice, on the delivery of the papers to the prize commissioners, states that the delivery of the papers to him was refused until after the arrival of the ves
The first bill of health was given to the vessel at London, on the 7th of January, 1S03, and speaks of her as bound from London to “St. Thomas and other places.” The second bill of health was given to her at St. Thomas, on the 2-1 tli of February. IS®, by the Danish authorities, and speaks of her voyage as one from London to Matamoras. The third bill of health was given to her at St. Thomas, on the same day. by the Mexican consul there, and speaks of her as bound to Matamoras.
The certificate of the Mexican vice-consul at London, as to the manifest of the cargo, is dated January 16, 1SC3, and certifies to the number of packages of merchandise composing the cargo as being 4.4SG, and as being consigned to Captain Jarman, at Matamoras, and speaks of the vessel as bound to Mata-moras.
The certificate from Lloyd's is dated London, June C, 1S02, and certifies that the PeterliofC belongs to Hull, England, was launched in July, 1801, and is classed as A 1, for nine years from 1861.
The clearance certificate from the customhouse at London shows that the vessel cleared from London for Matamoras, January 6,. 1863, and cleared a second time January 7, 1S03.
The manifest of the cargo is signed by James I. Bennett & Wake, as brokers. It speaks of the vessel as clearing from London for Matamoras, January 7, IS®. and states the number of her bills of lading to be 38, and gives the marks and numbers upon all the packages composing her cargo. But under the printed head of “Description of Goods,” it specifies only so many boxes, bales, cases, kegs, coils, packages, casks, bundles, chests, and trunks. The only description of any of the items is in the instances of 60 bellows, 120 bundles of spades and shovels, 42 anvils, 2 iron drums, 1,360 bundles of iron hoops, 280 bundles and bars of steel, and 9 bags of nails. The word "rope” has been written, in one instance, after the words ”140 coils,” and then carefully erased with ink. The items of “50 coils,” “45 coils,” and “20 coils,” also occur in the manifest, with nothing written or erased thereafter. The entire cargo is stated, in the manifest, to be consigned to “order," except in the instance of 49 cases, 2 iron drums and 1 package, which are stated as being "addressed to Bur-chard & Co., successors, Matamoras,” and as being consigned to “Messrs. Burcbard & Co.” the aggregate of the boxes, bales, cases, kegs, coils, packages, casks, bellows, bundles, anvils, chests, trunks, iron drums, bars, and bags is 4.581. '
The receipt for light duties at Plymouth is dated January 19, IS®, and speaks of the voyage of the vessel as from London to Matamoras, via Plymouth.
The certificate of the registry of the vessel shows her to be a British-built vessel, built at Sunderland in the year 1802, and of the register tonnage of 669*2/100 tons, and is dated at the custom house, London. December 20, 1862. It states her to bo wholly owned by Joseph Spence, of Cowper's Court, Cornhill, in the city of London, shipbuilder. The certified copy of said certificate of registry is dated at London, January 14, 18®.
The shipping articles of the vessel are dated January 1, 18®, and state her voyage to be “from London to Matamoras. and any port
aJ'rü ports in the - Gulf of Mexico, '“‘rd North a”rd Sh. America, a”d West Indies, and back to a final port of discharge in the United Kingdom, voyage not to exceed twelve months.” They state her crew to consist of a master, three mates, a carpenter, a steward, a cook, ten able-bodied seamen, two ordinary seamen, three engineers, eight firemen, and four able-bodied seamen as substitutes, those four substitutes being stated as having joined the vessel at Plymouth, three of them on the 13th of January, and one of them on the 15th, and all the others being stated as having joined the vessel at London, some on the 1st and some on the 2d of January, the crow thus consisting in all of thirty-four persons. The articles state that the seamen and firemen are to assist in the general duties of tin; ship, and to take in and discharge cargo, etc., when required by the master.
The receipt for harbor dues at Falmouth is dated January 19, 18®.
There were 72 bills of lading found on board of the Peterhoff. Of these 39 are originals, and the remainder are duplicates. Of 1 there are four sets, of 30 more there are duplicates, and of 8 there are no duplicates. Of the 39 bills, 9 are indorsed in blank. 9 are not indorsed, (S of these 9 being the 8 of which there are no duplicates, and the remaining 1 of them being one for articles shipped by Captain Jarman,) 9 are indorsed
A comparison of the inventory annexed to the commissioner’s report of the cargo with the bills of lading, in respect to the marks and numbers upon the varions packages, shows the following results: In packages covered by a bill of lading indorsed to S. J. Redgate & Co. were found saddles and hardware, horse brushes, hardware, saddlery, and quinine, and cast steel and files; in packages covered by a bill of lading indorsed to S. J. Redgate were found 145 coils of rope; in packages covered by bills of lading indorsed to Robert Bowden were found Blucher boots, Wellington, Napoleon, cavalry, and army Blucher boots, black and russet Bluchers, gray mixed blankets, and red, white, and blue bunting; in packages covered by bills of lading indorsed to Captain Jarman were found 70 coils of rope, mixed and gray blankets, and assorted drugs; in packages covered by bills of lading indorsed to George W. Almond were found white blankets, light Blucher boots, Blucher boots, saddlery, hardware, bundles and bars of steel to the number of 280, 9 robes of bagging, horseshoes and horseshoe nails; and in packages covered by a bill of lading indorsed to Samuel J. Redgate and George W. Almond were found tin, being 501 boxes. Bills of lading not indorsed, and of which there were no duplicates, cover packages containing Blucher boots, planes, axes, &c., nails, artillery harness, buckles, artillery harness and chains, army Blucher boots, drugs, quinine, and army or gray blankets. Bills of lading indorsed in blank cover packages containing 23 rolls of bagging, (those packages being marked “Peterhoff, owner,”) 90 coils of rope, hinges, screws, stocks, and dies, iron kegs of nails, saws and files, pickaxes and handles, axes and hatchets, spades and shovels, 42 anvils, 60 blacksmiths’ bel> lows, vices, planes and hardware, 11 cases of machinery, containing the iron bed-plate, iron piston-rod, and other articles for a press, (J. Spence being the shipper of these 11 cases,) rolls of zinc, iron kegs of nails, and the 1,343 bundles of hoop-iron.
A' large number of invoices, were found on board of the Peterhoff, covering the entire cargo embraced in the 39 bills of lading, (in which bills 26 shippers are named,) except the articles specified in the inventory before mentioned as artillery harness, buckles, and artillery harness and chains, and the articles contained in packages addressed “Burchard & Co., successors, Matamoras,” specified in such inventory as drugs and quinine, and the nine rolls of bagging. An examination of these invoices shows that among the articles covered by the bills of lading indorsed to Almond were 9 tons of horseshoes, 52,000 horseshoe nails, 644 bars of cast steel, 20 coils of Manilla rope, 2,000 pairs of gray blankets, 7,12S pairs of Bluchers, 99 waist belts, 14 ball bags, and a large number of buckles, martingale rings, harness awls, saddlers’ knives, saddlers’ punches, straps, and horse brushes; that among the articles covered by the bills of lading indorsed to Bowden were 379 yards of blue military cloth and blue military serge, 500 pairs of brown-gray blankets, 700 pairs of Blucher boots, 650 pairs of men’s Bluchers, 472 pairs of Bluchers, 144 pairs of Wellington boots, 76 pairs of riding boots, 200 pairs of negro brogans, and 307 pieces of scarlet, white, and blue bunting; that among the articles covered by the bills of lading indorsed to Redgate & Co. were 200 ounces of quinine, 1,813 pounds of cast steel, 14 riding saddles, 22 bridles, 4 saddle cloths, and a large quantity of halter chains, harness buckles, martingale rings, buckles, trace chains, files, and axes; that among the articles covered by the bills of lading indorsed to Redgate were 145 coils of Manilla rope, weighing 5 tons; that among the articles covered by the bill of lading indorsed to Redgate and Almond were 500 boxes of tin plates;
In announcing my decision in ■ this case, at the time the decree was entered, I stated that I should pi'epare an opinion in the case at a future day. I now find that, on the 19th of November, 1863, a report of the prize commissioners was filed setting forth, in pursuance of the final decree of the 1st of August, 1863, a detailed inventory of the contents and value of the cargo of the Peterhoff, made under their direction. It appears from that report of November 19, 18C3, that the articles specified in the report of June 2, 1863, as artillery harness, consisted of ten complete sets of russet artillery harness for four horses; that the articles specified in the report of June 2, 1863, as buckles, consisted of 553 gross of rings and 705 gross of buckles for harness; that the articles specified in the report of June 2, 1863, as artillery harness and chains, consisted of 20 complete sets of russet artillery harness for four horses, and 25S heavy russet artillery halters and 000 galvanized halter chains; that the articles specified in the report of June 2, 1803, as marked “Burchard & Co., successors, Matamoras,” and as consisting of drugs and quinine, were 2.300 ounces of quinine, 245 pounds of chloroform, 1,000 pounds of calomel, and a quantity of opium, morphine, ether, and other drugs; and that the 9 rolls of bagging, specified in the report of June 2, 1863, consisted of 1,145 yards of bagging. The report of November 19, 1863, also shows that the packages on board,
An examination of the report of November 19, 1863, shows that the articles covered by the bills of lading indorsed to Almond; were valued by the prize commissioners at $55,-238.98; those covered by the bills of lading indorsed to B-edgate & Co., at $7,082.53; those covered by the bills of lading indorsed to Redgate, at $1,875.30; those covered by the bill of lading indorsed to Redgate and Almond, at $5,010; those covered by the bills of lading indorsed to Bowden, at $113,130.77; those covered by the bills of lading indorsed to Captain Jarman, at $12.380.65; those covered by the bills of lading indorsed in blank, at $29,729.61, (of which $8,725.84 was the value of the shipments by Redgate, and $10,-568.06 the value of the shipments by J. Spence;) those covered by the bills of lading not indorsed, and of which there were no duplicates, at $29,945.72; and those shipped by Captain Jarman, and covered by a bill of lading not indorsed, at $2,551.81.
Among the documents found on board of the Peterhoff was a copy of a letter, dated London, October 27, 1863, signed “James I. Bennett & Wake,” and addressed to Messrs. Pile, Spence & Co.; and a copy of a reply to that letter, dated the same day, signed “Pile, Spence & Co.,” and addressed to Messrs. James I. Bennett & Wake; and a copy of a letter dated London, January 17, 1863, signed “James I. Bennett & Wake,” and addressed to Messrs. Pile, Spence & Co. These three letters relate to the voyage of the Peterhoff, and the respective interests of the writers of the letters in the freight to be earned by her, and show that she was to bring home a cargo of cotton from the Rio Grande. I shall have occasion hereafter to refer particularly to the contents of these letters. They constitute the only agreement, in the nature of a chais ter-party of the vessel, that was found on board.
There was also found on board a printed form of a policy of insurance', in which the names of “Robinson & Fleming, No. 21 Austin Friars, London,” are printed as insurers. The blanks for writing in the form, are filled in as insuring the Peterhoff for £10,000 on her hull, and for $5,000 on her machinery, average payable on each valuation, as if separately insured, or on the whole, and general average, as per foreign statement, if required by the assured,” “from London to Matamoras, while there, and thence to Liverpool; including collision clause, as per printed slip annexed,” at the rate of five guineas per cent. On the margin of the form are printed the words, “Warranted free from capture, seizure, detention, and all consequences of hostilities.” There is no signature to the instrument, although it contains the following in print: “In witness whereof, we the assur-ers, have subscribed our names, and sums assured, in London.” The printed form of a bill at the foot of the copy of the policy, intended to be filled up with items of the charges for the premium and the policy, is not filled up.
There was also found on board a letter, dated “Royal Mail Steam Packet Company, No. 55 Moorgate street, London, January' 8, 1863,” signed “Rd. T. Reep, Sec’y,” and addressed to “Capt’n Cooper, R. N., Jamaica,” which says: “This letter will be shown to you by Capt’n S. Jarman, of the screw steamship Peterhoff, who, in the event of his not being able to procure a supply of coal necessary for his ship from merchants in your port, is to be accommodated from the company’s stock underyour charge, of, say, not exceeding 250 tons at 34s. 4d. per ton, either on his out or home voyage, both or either. You will be good enough in such case, to take the captain’s drafts, at three days’ sight, payable in London, on his owners, Messrs. Pile, Spence & Co., and forward the same to 55 Moorgate street, at your earliest convenience.”
One of the papers found on board was a bill or invoice, reading thus: ‘^London, 30 Dec., 1862. Messrs. Pile, Spence & Co., per Peterhoff, bot of Ford, Curtis & Curtis, 10 bales gunny cloth, 1,559 yards; 13 bales stout cotton wrapping, 1,998 yds.; freight, £47 4s. 6d., marked ‘Peterhoff, owner.’ ” On the same page with that bill is another, reading thus: “Manchester, Dec. 24, 1862. Messrs. Pile, Spence & Co., bot. of J. Bowes, 1 hydraulic cotton press, with ram to lift 4 feet, and set of pumps complete; 2 birch railway boxes, bound with iron, and fitted up with wheels, stillages, rails, &c.” There was also found on board sundry correspondence ■in reference to this cotton press, and some drawings of cotton presses, to which I shall refer hereafter more particularly.
The cargo-books, four in number, give, under different headings, the dates of putting the packages on board, their marks and numbers, and solid contents and positions in the vessel. They are generally stated to be merely cases, bales, casks, and trunks, the contents not being specified, except in the Instances of bellows, coils of rope, machinery, round bars in a bundle, bars of iron, machinery bars, packages of leather, medical comforts, samples, shovels, box for cotton press, iron hoops, anvils, casks of nails, bars and bundles of wrought steel, kegs of nails, and bags of nails. The log-book purports, on its title page, to be for a voyage from London to Matamoras, and to have been kept by H. Bound. It commences on the 30th of November, 1862, and details a voyage of the vessel from Liverpool to London, she having left Liverpool on that day, and arrived at London on the 6th of December following. The log shows that she remained lying at
I will now refer to the most material portions of the depositions taken in preparatorio:
Captain .Jarman says that the PeterhofE was seized on the 25th of February, 1863, off the harbor of St. Thomas, and taken thence to Key West, and from thence to New York, and that he does not know why she was seized. Bound, the first officer, testifies to the same effect. Harris, the second mate, says that the capture was made off the island of St. Thomas, three or four miles from the shore, and that he believes the vessel was seized on suspicion. Tregidgo, the third officer, says that the capture was made about four miles off St. Thomas, and that the vessel was' taken on suspicion of an intention to run the blockade. Bowden, one of the passengers, says that Matamoras, Mexico, was to have been his home, and that he heard that the vessel was captured because they said she was going to run the blockade. Almond, one of the passengers, says that the capture was made about two or three miles outside of the harbor of St Thomas, and that no reason was given for the seizure, unless on account of some alleged informality in the papers of the vessel. Redgate, one of the passengers, says that he was born in London, and resides in Matamoras, Mexico, and has resided there a year and a half or two years, and believes that his family are in Matamoras; that they were there with him a part of the time while he resided there, and, when not with him, were in the state of Texas. He also says: “I am a citizen of the United States. I now owe allegiance to the United States. I owe obedience to the laws of Mexico, but I owe allegiance at present to the United States government.” The testimony of Redgate on this subject read originally thus: “I was once a citizen of the United States, and I suppose I am now. I now owe allegiance to Mexico, as a resident of Mexico. I think I do not owe allegiance at present to the United States.” This testimony, as the record shows, was corrected by Mr. Redgate, on its being ■read over to him, by erasure and interlineation, so as to read as first above stated. He says that he understood that the reason the capture was made was, that the master of the PeterhofE refused to be taken out of his ship with his papers. Murphy, chief engineer, says that the PeterhofE was taken on suspicion of running the blockade. Murphy, first assistant engineer, says that the vessel was seized about seven miles outside of the harbor of St. Thomas, and that he does not know the reason of her seizure, except the pretence that she was intending to run the blockade. Webber, the steward, Duffay, a fireman, Diamond, the cook, and Campbell, a seaman, all say that they do not know' why the vessel was seized. Reed, a seaman, says that he should think the capture was made five or six miles off the mouth of the harbor of St. Thom
Captain Jarman says that he had a small speculation of his own on board the Peterhoff, “a few stores and other property, as captains usually have”; that he had no interest in the vessel; that he had no other interest in the cargo; that his property paid no freight, and had nothing to do with the ship’s cargo; that none of the ship’s company had any interest in the vessel or the ship’s cargo; and that the value of his property on board was about £1,000, at what it cost in London and St. Thomas. Bowden says that he was a passenger on board at the time of the capture, and held bills of lading for a part of the cargo; that he does not know who owned the remainder thereof; and that the value of his share of the shipment was between twenty and twenty-five thousand pounds sterling at London. Almond says that he owned in his own right a portion of the cargo on board the vessel, which, at cost prices, was valued at about twelve thousand pounds sterling; that this portion of the cargo consisted of men’s and women’s boots and shoes, calicoes, cotton, prints, shirts, flannels, woolen hose, horseshoes, and nails, felt hats, “not military, but civilian’s hats,” pins, and needles, one case of saddlers’ tools and some shoemakers’ tools; that he does not remember the names of any other articles; that what he had was a general assortment; that he had no arms, powder, shot, or any military arms or clothing on board the vessel, except one rifle and five revolvers, and some two or three hundred rounds of ammunition, which was all contained in a small tin box; that two of the revolvers were intended for the use of Red-gate, and the rest for his own use; that he had also a small case of quinine, containing one hundred ounces, and a small portmanteau, also containing medicines and drags in small quantities; that he intended to sell the same; that the portion of the cargo that he owned was entirely distinct and separate from the other cargo on board, and that the only other persons in any way interested therein were his father, his uncle, and himself; that his father, William Almond, and his uncle, George Almond, both reside in London, and are partners together in the shipping business there, under the firm name of George & William Almond; that he is not interested in the firm, but shares with them equally in the profits resulting from the sale of the portion of the cargo owned by all of them; that he furnished no money to purchase the goods in question, but they were purchased by his uncle and father; and that no other person on board of the vessel has any control or power over the goods in question but himself. Redgate says that he was on board as a passenger; that he had an interest in some of the cargo, and that a large portion of the cargo was also consigned to him; that he supposes he had an interest in the cargo to the amount of from fifteen to twenty thousand pounds sterling; and that this includes what was consigned to him. Reed says that the captain took on board some of the cargo at St. Thomas. Captain Jarman says that the vessel was bound to the port of Mata-moras; that the voyage began at London, and was to have ended in England, at Liverpool or London; that she carried a general cargo of merchandise, which was put on board in December, 1862, and January, 1863; and that she had no goods which he considers contraband of war. Bound says that the vessel was bound to Matamoras when captured; that the cargo consisted of assorted goods, partly of nails, iron, drugs, tin, and general cases of merchandise; and that he knows of no contraband goods on board. Harris says that they were bound to Mata-moras; that the cargo was a largely assorted cargo of merchandise, in cases, bales, and trunks; and that he does not know of what it consisted. Tregidgo says that the vessel was bound to Matamoras; that she carried a general assorted cargo, and took in about ninety or one hundred cases of spirits at St Thomas; and that there were some contraband goods on board, such as boots and shoes, and army cloth and medicines. Bow-den says that the voyage commenced at London, in January, 1863; thence to Plymouth, for passengers, thence to Falmouth, under stress of weather; that the vessel sailed from Falmouth, on the 27th of January, for Mata-moras, with liberty to call at St. Thomas or Jamaica for coal or other purposes connected with the voyage; that she stopped at St. Thomas from the 20th to the 25th of February; that, on the morning of the 25th of February, previous to entering St. Thomas, she was overhauled by the United States Steamer Alabama, and her papers were examined and passed; that she was bound for Matamoras, and was to return from that place to England; that when she left England, shehad a cargo of general merchandise, consisting of boots and shoes, blankets and hosiery; and that he has heard there were also printed calicoes, nails, and other articles of that kind on board; that there were no goods contraband of war or
Captain Jarman says that the vessel had the ordinary ship’s papers only; that she sailed from London and touched at Plymouth and Falmouth in stress of weather, and at St. Thomas for coal; that her previous voyage, so far as he knows, was from England to Nassau and back to Liverpool; that on that voyage she must have had some cotton; and that she cleared from London on the 6th or 7th of January, and left Falmouth on the 27th of January. Harris says that they stopped at Plymouth to take on passengers. Trigidgo says that her previous voyage was to Nassau; that he does not know what she took out; and that she brought back cotton. Bowden says that he has heard that the vessel had made one voyage to Nassau. Almond says that the vessel had only carried one cargo before the present one; that that was a cargo of coals, which she delivered at Nassau, and returned to Liverpool with a cargo of cotton, which was put on board at Nassau; and that he heard this from Captain Jarman. Diamond says that the last voyage of the vessel was to Nassau and direct back to Liverpool, calling for coal at Halifax; that the last cargo was general, consisting of tea, coffee, liquors, &e., and was all sold and landed at Nassau; and that it was put on board at Liverpool, England, partly by a man named Dobson, in August, 1SG2. Captain Jarman says that the present cargo of the vessel is assorted, and consists of general merchandise; that he knows it consists of some kegs of nails, a little iron, cases and bales, which he supposes are dry goods, some large bellows, and a few anvils; and that he cannot specify any further. Bound says that the cargo was of general merchandise, but that he does not know particular quantities and qualities. Harris says that the cargo was a largely assorted general cargo, in cases, bales, trunks, &e., and that he does not know what was in them, nor anything about the different species or quantities of cargo. Tregidgo says that the cargo consisted of medicines, about five hundred boxes of tin plates, blacksmith’s bellows and anvils, cotton presses, boots and shoes, bar iron, army clothing, kegs of nails, spades and shovels, carpenters’ tools, spirits, some heavy casks, iron work, and bales and cases. Almond says that the portion of the cargo other than that in which he is interested consisted, as he understood, of a general assorted cargo of merchandise, of a kind and character similar to the portion in which he is interested. Redgate says that he cannot set forth the quantity or different species of the cargo more fully than he has done in his answers to previous interrogatories. The other witnesses, all of them, say either that the cargo was assorted merchandise or that they do not know of what it consisted. Captain Jarman says that the vessel was owned by Joseph Spence of London; that the cargo is owned by merchants in London, represented by three passengers who were on board; that he represents the owner’s share of the cargo, that is, the share of Spence & Co.; that they have a share of not above one-eighth, he supposes; that he knows, by the bills of lading, who the owners are; that he thinks it is all represented by his three passengers and himself, except a few parcels or cases on board, which are covered by a bill of lading indorsed to Burchard & Co., of Matamoras; that they are all English owners, except the last named, and he does not know what countrymen they are; and that the English owners, he thinks, all reside in London, and he supposes they are all English subjects. Bow-den says that he believes the entire cargo
Captain Jarman says that he thinks the names of the laders and owners of the cargo are all contained in the bills of lading which were found on board; that, so far as he knows, all the cargo is for the real account, risk, and benefit of those who appear in the bills of lading to be the owners. Bowden says that the goods were to be delivered at Matamoras, for the account, risk, and benefit of the shippers of the same. Almond says that the laders of the cargo in which he is interested were his father and uncle; that he and they had no consignees, as he was authorized to select his own consignee, on arriving at Matamoras; that this authority was verbal and not in writing; that these goods were to be delivered at Matamoras for the real account, risk, or benefit of his father, his uncle, and himself; that they all owned the same in equal shares; that it was his intention to settle in Matamoras and sell the goods in question himself; and that he had never been there. Bedgate says that part of the cargo was consigned to him as a merchant in Matamoras for some eighteen months then past. Webber says that some cases were taken on board for the-captain, at St. Thomas, some of which contained liquors. Captain Jarman says that lie thinks there are five and twenty or thirty bills of lading; and that none were false or colorable, and none were different from those found on board at the time of the capture, to his knowledge. Almond says that three sets of bills of lading, consisting of four in each set, were signed for the cargo owned by himself and partners; that he gave up four bills of lading to the prize officer. Bed-gate says that he does not know exactly how many bills of lading were signed for the goods belonging to, or consigned to him, but he thinks seven or eight Captain Jar-man says that he has no other papers, and had none relating to the vessel and cargo, except what he delivered up at the time of the capture. Captain Jarman says that there was a charter-party, or a copy, on board with the papers at the time of the capture, signed by Spence, and Bennett & Wake. Bound says that the capture took place about three miles from St Thomas, and that he thinks there was a charter-party signed. Harris says that the capture took place in. sight of St. Thomas Island. Tregidgo says that the vessel was captured about four-miles to the southward of St. Thomas. Almond says that the capture was made a few miles off the coast of St. Thomas. Murphy, first assistant engineer, says that the capture was made just outside the harbor of St. Thomas.- Webber says that the vessel was captured near the harbor of St Thomas. Captain Jarman says that the prize commissioners have all the papers that were on board the vessel at her last clearing port; that none connected with the voyage, the ship or the cargo were destroyed; that he tore up some letters from his wife and father at the time of the capture; that none others were destroyed, to his knowledge, by any person; and that none were concealed, or in any way disposed of, to his knowledge. Bound says that the ship had her usual papers, clearance, register, &c., all of which were on board when captured, and that none were destroyed or concealed in any way. Harris says that he does not know what papers were on board the vessel when she left London; and that he threw overboard, by order of the captain, a square paper package, the contents of which he does not know, about the time of the capture, after the first boarding by the officers of the Vanderbilt, and before the prize crew took possession, he thinks, but he cannot say precisely at what time. He says: “This paper package was handed me by the captain, or he told me to get it out of the cabin, which I did. While I had it in my possession, I handed it to Campbell, or some other seaman, and told him to hold it while I was busy, and he did. He afterwards gave it back to me, and I then threw it overboard. I told the seaman who held it that in case a boat from the Vanderbilt came alongside, not to let it be seen. The captain told me not to let any one see it. The captain had given me this same paper parcel once before, at the time the Alabama stopped us, before we were boarded by the Alabama. He told me, at that time, to keep this parcel, and throw it overboard if he told me to, or, if he made a sign to me, then to throw it over. As I did not throw it overboard then, I gave it back to the captain. The Alabama was a Uni ted States war steamer of some
Tregidgo says: “I don’t know what papers were on board of the steamer when she sailed, except the English mail for Mata-moras. When we were first boarded by the Alabama, going into St. Thomas, the captain sent for the second officer, and gave him a packet, with instructions to keep it in the fore part of the ship, and if he, the captain, made him a sign, he was to throw the package overboard, and if the boarding officer was between the captain and the second officer, so that a sign could not be made, he was to use his own discretion. On the boarding officer returning to the Alabama, the packet was taken aft to the captain. On being first boarded from the Vanderbilt, exactly the same proceedings were carried out, and the packet was again returned to the captain. On the captain perceiving the officer again coming from the Vanderbilt, he gave me the packet, and told me to keep out of the way with it. He then said: ‘Never mind. Fetch the second officer;’ and the packet was again given to him — the second officer, Mr. Harris. On the captain observing a prize crew coming from the Vanderbilt, he called the second officer aft, and, after sending for Mr. Mohl, one of the passengers, to witness the necessity of throwing the packet overboard, he then ordered the second officer to throw it overboard from a part of the ship where it would not be observed from the Vanderbilt, which he did. While the packet was in the fore part of the vessel, a man named Campbell had it, concealing it I do not know what the packet contained. I heard the captain speak of it as containing dispatches. He called it dispatches. There were some written papers sent to the stoker to be burned. They were burned by George Duffy, fireman. The packet was sewed up in canvas, and weighted with lead, so that it would sink. Mr. Mohl appeared very much depressed at the necessity of throwing over the packet.” Bowden says that no papers of any kind were burned, thrown overboard, destroyed, cancelled, or attempted to be concealed, to the best of his knowledge, information or belief.
Almond says: “I don’t know what papers were on board the vessel when she left St. Thomas. The same day we arrived at St. Thomas, Captain Jarman ordered a package to be destroyed. It was in charge of Mr. Mohl, passenger. Tie gave it up. at the captain’s request, to be destroyed. I suppose it was destroyed. I don’t know for what reason it was so destroyed. I don’t know what the package contained. We were in sight of St. Thomas at the time. I don’t remember whether or not it was destroyed before or after we were hailed by the United States steamer Alabama. We were hailed by that vessel the morning of the day we reached St. Thomas. We entered about half past ten o’clock in the morning. The package was very small. I never saw it but once, and then it was in Mr. Mohl’s possession. I never knew what it contained. It was destroyed because Mr. Mohl objected to its being opened. At Falmouth, Captain Jar-man said we must deliver up any and all sealed packages, as he should not carry any. Mr. Mohl had the one in question, but did not give it up at the time, and it was not given up until the morning of the day of our arrival at St. Thomas, when it was destroyed, as I have above stated. Nothing else was destroyed or concealed, to my knowledge.”
Redgate says that he had no letters, and no instructions, as to the mode of disposing of the cargo; that he does not know that any person burned, tore, threw overboard, destroyed, or cancelled, or attempted to conceal, any papers on board. Murphy, assistant engineer, says that he, was told by the second steward that there were some papers destroyed by one of the stokers, named George Duffy; that some were thrown overboard by the second mate; and that the first steward, Webber, knew of the fact. Webber says: “I heard several of the crew say that some papers had been thrown overboard by Mr. Harris, the second mate, just before the Alabama boarded us. I saw some newspapers burned by Duffy, a fireman. They belonged to a passenger, named Mohl, who gave them to me to be burned, and I gave them to Duffy and told him to bum them. I don’t know why he wanted them burned. I saw the packet that Mr. Harris was said to have thrown overboard. It looked like a brown paper parcel. I did not see him throw it over.” Duffy says: “Thestew-ard of the ship gave me a package of papers, or something that was printed. It looked like a book that had been ‘tossed from a great many hands.’ He told me to burn it, which I did. I don’t know the steward’s name, nor the contents of the package or book which I burned, nor anything about it, except what I have stated. This was about the time the Vanderbilt captured us. I cannot say exactly whether it was before or after the capture. We were outside of the harbor of St Thomas, after we had been in. I was down in the engine room, and as I came up on deck the steward gave me this package, and told me to burn it. He did not say why, nor who it belonged to, nor anything more than to burn it” Reed says: “When we first saw the United States gunboat, the Alabama, which boarded us on the 20th day of February, before we went into St. Thomas, the captain sent Mr. Harris, the second officer, forward with a box of papers, which papers I saw the captain put into the box, and he told Mr. Harris to put something into the box to sink it, and, on the raising of his finger, to let it go overboard (the
Captain Jarman says that he knew of the blockade of the principal ports of Charleston, the Mississippi, &c., before he left England, and knew about the war in America. The testimony of all the witnesses is, that the officers, crew, and passengers knew of the war and of the blockade of the enemy’s ports before leaving England. Captain Jar-man says: “I was spoken and boarded by the United States ship Alabama on this voyage. My papers were examined, but my papers were not indorsed. I was allowed to. proceed. I was spoken by the Alabama about two miles from St. John’s' Island, and seven from the harbor of St. Thomas, on the 20th of February last.” Harris says that, on her previous voyage, the vessel was under another owner, Mr. Pearson, of Hull. Duffy says: “When I shipped, I refused to go if the vessel was to run the blockade. This question arose between the captain and me at the Sailor’s Home, where I shipped. I told him 1 did not wish him to take me to run the blockade. He said it was more than he dare do, to run a blockade, as he belonged to the naval reserve."
Captain Jarman says that he has sustained considerable loss by the seizure; and that, in case his property should not be restored, he will sustain considerable loss. Bowden says that he has sustainfed a serious loss by the capture, in time and business, and in other respects. Almond says that he has sustained great loss by the capture. Bed-gate says: “I have sustained an injury by the seizure of this vessel. I compute my loss in this way — imprisonment on board of the vessel, loss of time, loss sustained in business, loss by being deprived of performing my duty as agent of Lloyd’s at Matamoras, and for other wrongs and privations.” Captain Jarman says that the vessel was insured, and he believes the cargo was. Bound says that the vessel was insured partly in London and Paris. Bowden says that the part of the cargo which he represented was insured or partially insured. Almond says that his portion of the cargo was insured for £11,500 in Lloyd’s for the voyage from London to Mata-moras, with liberty to stop at St. Thomas, or Jamaica; that the premium was under £5, and he thinks about 97s.; and that it was insured by his father and uncle with Bennett & Wake, brokers. Kedgate says that the goods, as far as he was concerned, were insured; that he understands that the vessel was insured also; that the insurance was from London to Matamoras, touching at St Thomas for coal; that he does not recollect at what premium; and that some of the insurances were effected in London and some in Paris. Captain Jarman says that if he had arrived at his destined port, the property would have become the property of the consignees — that is, for the time being; and that the property was represented by the passengers who were on board. He says that there was a small quantity of tea on board. Tregidgo says: “I heard Mr. Eyck, one of the passengers, say that the cargo was to go across the river, from Matamoras into Texas. I am very confident of this.” Bowden says that, if they had arrived at Matamoras, the part of the cargo which he represented would have taken the chance of the market for its sale; and that the proceeds were to be returned. Almond says that, on arriving at Matamoras, he was to hold the cargo, and take his chance in the market for its sale. Bedgate says that, if. the vessel had arrived at Matamoras, the cargo would have belonged or would have been at the disposal of the persons holding the bills of lading, and that the laders or owners were to take the chance of the market Captain Jarman says that he knows of no papers of any kind relating to the vessel and cargo in any country, except those delivered to the captain; and that no papers were delivered out of the vessel in any way whatever, to his knowledge. Bowden says that the prize master-, at the time of the capture, took away all the papers relating to the vessel and cargo. Almond says that he does not know of any
. Captain Jarman says: “There were eight passengers on board when 1 left London or Plymouth. Their names are as follows: Samuel or S. Redgate, Robert Bowden, Wel-lesly Almond, Mr. Mohl, Mr. Edwards, Mr. Heyck, Mr. Ellsworth. The last four left me while I was at Key West, having no interest in the cargo. One other left at Falmouth, he having joined the ship at Plymouth. The three first named are in charge of a large portion of the cargo, and are now here. They were taken on beard in London or Plymouth, and were destined to Matamoras. None of the eight passengers were citizens of the United States, to my knowledge. Possibly Mr. Edwards may have been.” Bound says: “Bowden, Almond, Redgate, Edwards, H. Heyck, Ellsworth, Moyles, were passengers on the vessel at the capture. Redgate, Edwards, Heyck, and Moyles are from Mexico; the others from England. All are merchants. They came on board at London and Plymouth. Bowden, Redgate, and Almond were, I think, interested in the cargo; the ouiers not, I believe. They were all going to Matamoras. No citizen of the United States was on board nor any citizen of any of the states at war with the United States.” Tregidgo says: “There were seven passengers on board. Their names were Bowden, Almond, Ells-worth, Eyck, Mohl, Edwards, Redgate. Mohl and Redgate told me they were residents of Texas. Eyck also belongs to Texas. He told me so. There was a Mr. Bisbie, who came on board in Plymouth, and left the ship at Falmouth. I think he was an army officer, as he had his sword with him. I think he was an American. The passengers were going to Matamoras. Edwards told me he must be back into the Southern states by the first of March.” Bowden says: “There were seven passengers on board. All were bound from England to Matamoras. They were myself, Messrs. Redgate, Ellsworth, Mohl, Edwards. Heyck, and Almond.” Almond says that there were seven passengers op board, S. J. Redgate, R. Bowden, Mr. Ells-worth, Mr. Mohl, Mr. Edwards, Mr. Heyck. and himself; that Mr. Mohl and Mr. Heyck were Germans, as he believes; that the remainder were Englishmen, with the exception of Mr. Edwards, tvho told him he was an American; and that they were all bound to Matamoras. Redgate says that there were seven passengers on board, including himself, Bowden and Almond; that the others were Mr. Edwards, Mr. Heyck, Mr. Mowl, and Mr. Ellsworth; that he thinks Mr. Edwards was an American; that Mr. Mowl and Mr. Heyck were Germans, and Mr. Ellsworth a Scotchman, who was bound to Matamoras, as his (Redgate’s) clerk; that they were young men; and that he does not know that they had any families. Webber says that there were seven or eight passengers on board when they left Plymouth: that one by the name of Bisby or Bigbee, left at Falmouth; that three or four left at Key West; that their names were Mr. Ellsworth, Mr. Heyck, Mr. Edwards, Mr. Mole. Reed says that there were seven passengers on board, and that one joined at Plymouth and left at Falmouth; that his name was Colonel Bigsby; that he was an officer in the Confederate army; that one of the passengers was Mr. Itedgate, and the others Mr. Almond, Mr. Mole, Mr. Hyeek, Mr. Edwards. Mr. Ellsworth, Mr. Bowden; that they were all taken on board at Plymouth, except Mr. Hyeek and Mr. Ells-worth, who were taken on board at London; that they were going to Matamoras; that they said that from there they were going home; that they did not say where their home was, but that he heard them say that they could not get home because their place was blockaded; that Mr. Mole burned some papers when the Alabama boarded them; and that it was note paper, with the “Confederate flag” upon it.
Captain Jarman says that all the papers found on board are true and fair to the best of his knowledge and belief; that none are false or colorable, to the best of his knowledge; that there were no other papers of any kind, except as he has already stated; and that he has signed no papers concerning the vessel or cargo since her capture. Bowden says that all the papers found on board are true and fair, to the best of his belief; and that he had a passport for Matamoras, Mexico, through Earl Russell. Almond says that all the papers found on board are true and fair to the best of his knowledge; that he' had a passport from the English government, viséd by the Mexican consul at London, to go to Mexico, and travel there, and has it now in his possession. Redgate says: “As far as concerns myself, all the papers which I had were entirely true and fair, and, as far as I know or believe, all of the other papers were so, and none of them were false or colorable, nor do I know of any matter or circumstance to affect their credit. I have not made any oath or affirmation in order to
At the close of the deposition of Captain Jarman, as taken on the 1st of April, 1863, after the signature of the witness and the jurat of the prize commissioner, is a certificate signed by the commissioner, stating “that subsequent to the examination of the above deponent, circumstances hating occurred which led him to suppose that deponent had not fully answered the 20th interrogatory, as to the destruction of papers in this case, and deponent having been voluntarily present before the commissioner, the 20th interrogatory was again read to deponent, and his answer thereto read to him, as herein recorded, and deponent was asked if he desired to add to or alter his anstver to the above interrogatory, when deponent replied that he did not desire to change or add to his answer herein.”
In the deposition of Tregidgo, after his answer to the 43d interrogatory, and before his signature to the deposition, and also before the jurat thereto, is the following statement: “The witness adds to his reply to the 20th interrogatory as follows: I have been a midshipman in the British navy, and am accustomed to seeing the form in which dispatches are made up. The packet thrown overboard was put up in the same manner. There was no mark upon it. The ends were loaded with a heavy weight of lead at each end. The first time that I ever saw it, or knew it was on board the ship, was when the Alabama boarded us. I then saw it, and saw at once that it was a package of dispatches, This addition to my reply to the 20th interrogatory was made at my request I was born in the year 1843, and am nearly 20 years of age.” The deposition of Redgate was taken on the 1st of April, 1863. On the 20th of April, 1803, he was reproduced by the United States district attorney, and, at his request, re-examined. On such re-examination he testified as follows, in answer to the 1st interrogatory: “X resided in the state of Texas until the breaking out of the war between the Northern and Southern states. I had resided there about thirty years — twenty-five or thirty —and battled against secession as far as my humble means would allow, until I was driven out of the state. My family resided there with me, and, when I left Texas, I left my family there. They afterwards followed me into Matamoras. I never took the oath of allegiance to the republic of Texas, nor, since its admission, to the government of the United States. I never had any papers of citizenship, nor did I ever obtain a passport at any time.” On such re-examination, he also testified as follows, in answer to the 9th interrogatory: “There was a small portion of the cargo on board which I owned absolutely. The bills of lading in these cases, which are among the papers, will show the portion which belonged to me absolutely, and so will the invoices which are with the papers. They are made out in my name. Other portions of the cargo were consigned to me, and the bills of lading in these cases are indorsed to me, and the invoices in these cases are made in the name of the consignors. My only interest in these cases was to .arise from the commission on the sales, when made, of five per cent X was not an owner, in any way, of the portion of the cargo which I now speak of as having been consigned to me. The portion of the cargo which I absolutely owned was very small, and cost me something like one hundred to one hundred and fifty pounds. Since the vessel arrived in this port, Mr. Bowden, another passenger with me, who was the agent or superintendent of a considerable portion of the cargo, has empowered me, by a power of attorney, to take care of and manage his interests in the cargo. I think the cargo in question, in which Mr. Bowden is interested, is shown by the bills of lading among the ship’s papers, they being indorsed to him. Of this I am not positive, although I have very little doubt they are so indorsed, and that the names of the owners in this case, as in that portion consigned to me, appear in the invoices found on board. In all these cases in which I am interested as consignee, the names of the absolute owners appear in the invoices, to the best of my knowledge, and they all reside in London, Glasgow, and Nottingham, and are all English subjects.”
At the close of the deposition of Thomas Webber, as taken on the 6th of April, 1863, after his signature and the jurat, is the following statement: “On reading the deposi
On the 2d of May, 1S03, an application was made to the court, on the part of Samuel J. lledgate, to allow special interrogatories to be settled by the court, to be propounded to him in preparatorio, so as to enable him “fully to explain his political status and loyalty to the government of the United States, and his conduct, motives, and intentions in relation thereto, and further to explain fully his connection with the cargo of the Peterhoff, and his motives and objects in connection with the voyage on which the said vessel was captured as prize.” This application was founded upon an affidavit made by Redgate; but it was opposed by the district attorney and the counsel for the captors, and was refused by the court, on the ground that the question of the individual loyalty or disloyalty of Redgate was of no importance, and that his political status, upon the testimony given by him in his depositions in preparatorio, and upon the facts stated by him in his affidavit on the application, was that of an enemy, according to the decisions of the supreme court in Jecker v. Montgomery, 18 How. [59 U. S.] 110, and in the Prize Cases, 2 Black [67 U. S.] 635. Subsequently Mr. Redgate renewed his application to be examined on special interrogatories, protesting against his being regarded in any respect as a citizen of “the so-called Confederate government,” averring that he was an alien enemy to it, and claiming a right “to so place himself before the court, by proofs in preparatorio,” as to put himself in the attitude of a neutral, for the purposes of a just protection to his rights. On the 11th of May, 1863, on this application, with the consent of the district attorney and of the counsel for the claimants, the court made an order that Redgate be forthwith examined orally before the prize commissioners; that the interrogatories and his answers be reduced to writing by them, and submitted to the court; and that the district attorney and the proctors for the claimants be allowed to be pres-, ent, and to put direct and cross interrogatories to him. No examination of Mr. Redgate, under this order, appears ever to have taken place. The court has been informally advised that the examination of Mr. Redgate under this order was waived by consent of the district attorney and of the counsel for the claimants. No prejudice, therefore, can attach to Mr. Redgate, because be was not : examined under this order. I
On the 27th of April, 1863, Captain .Tar-man made an affidavit, containing a statement in respect to the package which the passenger Mohl had in his possession, and which tvas thrown overboard by Harris, by direction of Captain Jarman, after the Peter-hoff was boarded by a boat from the Vanderbilt. That statement was. in substance, the same as the one subsequently made by Captain Jarman on his further examination, which will be alluded to hereafter, and the general purport of it was that the package in question was a package which Mohl told Captain Jarman contained “white powder,” but of the contents of which Captain Jar-man was ignorant, and which he ordered to be thrown overboard, because he thought it would “endanger or compromise” his vessel; and that he did not believe that it contained anything other than powder of some kind. He further stated in his affidavit: That the twentieth standing interrogatory was, on his examination, put to him as follows: “What papers, bills of lading, letters, or other writings relating to the vessel or cargo were on board the vessel at the time she took her departure from her last clearing port before she was taken as a prize? Were any of them burned, torn, thrown overboard, destroyed, or cancelled, or attempted to be concealed, and when and by whom, and who was then present?” That, believing that the contents of the package were only powder, he made answer as follows: “You have all the papers which were on board at her last clearing port; none connected with the voyage, the ship, or the cax--go were destroyed. I tore up some letters from my wife and father at the time of capture. None others were destroyed, to my knowledge, by any person. None were concealed of in any way disposed of, to my knowledge.” That Mr. Elliott, the commissioner, asked to call in a day or two, as he might wish to see him again. That, in pursuance of such invitation, he called a few days afterwards at the office of the commissioner. That the commissioner called his attention to the foregoing interrogatoiy, and the answer thereto, and asked him if he clearly understood the interrogatory. That he then told the commissioner about the said package in tenns substantially the same as contained in the affidavit, and in’quired of the commissioner if it would not be a proper matter to explain in connection with his answer to the interrogatory; and that the commissioner informed him that he did not think that it was at all pei-tinent to the interrogatory, and that his answer to the interrogatory was in every way sufficient. On this affidavit an application was made to the coui-t, on the part of the claimants, that Captain Jarman be allowed to add to his answer to the twentietli interrogatory the statement contained in his affidavit. On the hearing of the application, an affidavit made by Mr. Elliott, the prize commissioner, was
On the ICth of May, 1863, Captain Jarman was examined under this order, and his answer then made to the twentieth interrogatory was as follows: “When the passengers engaged their passage, they were distinctly told that they would not be allowed to carry any letters, papers, or dispatches in the ship. This was clearly understood. Before leaving Falmouth I received a telegram from J. Spence, Esq., the owner of the ship, instructing me to question the passengers as to whether they had any documents in their possession. I immediately called them together, and advised them as to my owner’s instructions, and they, one and all, in the presence of each other, and in the presence of Mr. Mole, a passenger, and another passenger who left the ship at Falmouth, then declared that they had nothing in their possession of such description. The next day the last-named passenger came to me, and said he had made up his mind to return to London, intending to go out to Mexico by the West India mail packet. This passenger’s name was Besbie or Besby, and he left me the same day, and went on shore at Falmouth. After the ship left Falmouth, Mr. Mole, the passenger above named, came to me and stated that he had a small packet of white powder — patent white powder, he called it — in which he and some of his friends were interested. I said, ‘You had better deliver it up to me, for it is a dangerous article to have on board.’ He gave it to me and I locked it up in my state-room. Nothing more was thought of this until we approached St. Thomas, excepting that I asked of him why he had not mentioned this before leaving Falmouth. He replied, as it was neither papers nor writings of any kind, he did not think it requisite. When the United States steamship Alabama approached us, I called Mr. Mole and told him I did not like having this packet of powder on board, and that, if the ship was likely to be searched, it must either be opened or destroyed, and then gave it in charge of one of my officers — the second officer, Mr. Harris— with orders to destroy this packet if I instructed him. I told him in that case to throw it overboard. Not being examined by the Alabama, it was not then destroyed. After leaving St. Thomas, we were boarded by a boat from the Vanderbilt. This boat left the ship, ordering me to remain until they returned. I then called Mr. Mole again, and requested him to let me see the contents of the package. To this he objected, saying it was a patent, and could not be seen by any one but himself and friends. So I ordered it to be thrown overboard, fearing it might jeopardize the ship in some way, and it was accordingly thrown overboard. I believe it to have been white powder, as stated by Mr. Mole, and had no reason to believe otherwise, and do not think anyone knew the contents of this packet but this same Mr. Mole. I do not now believe it was anything but white powder, as above stated. I told Mr. Harris, above named, that when I instructed him to throw it overboard, I expected to instruct him in case it was requisite for me to make myself positive on the point as to the contents. After the Vanderbilt’s boat left the ship, I ordered Mr. Harris to throw this package overboard from the gangway. This was after the first boarding boat of the Vanderbilt left us, and before her boat came the second time, and after Mr. Mole refused
On the hearing of the case, the counsel for the claimants objected to the question put by the commissioner to Captain Jarman on reexamination, on the ground that the commissioner had no right to put any question that was not specified in the order for re-examination; and to the statement by the commissioner as to the witness refusing to answer, as being improper evidence. The court did not pass upon these objections at the time. On an objection taken by the district attorney, the court struck out as irrelevant the statement added by Captain Jarman as to the cabin-boy, Reed. I think that it was not proper for the commissioner to put to the witness, on his re-examination, any question except the 20th standing interrogatory, and the three special interrogatories. I also reject the statement of the commissioner as to the witness’s refusal to answer; for, although, on the examination of a witness, his demeanor,
At the hearing of the case, the district attorney presented to the court the following copy of a letter, accompanied by a certificate from the department of state of the United States, under date of April 29, 1863, certifying that it was a true copy of. the original on file in that department: “No. 77. Cornhill, E. c., London, Nov. 24, 1862.-, Esq. Hear Sir: We may state, for the guidance of any friends who may be desirous of shipping to America, that arrangements have been made for the dispatch of a vessel by us to the Rio Grande, about the first week in December; that cost of freight and insurance on goods can be paid at the port of delivery. The services of the highly respectable firm of Messrs. Brown, Fleming & Co., at Mata-moras, have been secured; also those of Mr. Redgate, Lloyd’s agent, an expert in cotton, and who has been resident nearly 40 years in Texas and Mexico. That gentleman’s services will be of great value to shippers in respect to his local knowledge and influence, as also as regards agency of the' inland transit, and landing and shipping of goods and cotton. Mr. Harding, of the firm of Messrs. Harding, Pullien & Co., of this city, has been named, and consented to act as factor for the receiving of the proceeds in cotton, and the equal distribution of same to the shippers, according to value of respective shipments, and who will effect the necessary insurance. Further, a Mr. Besbie, of the Confederate States of America, holds a contract from that government, whereby he is to receive 109 per cent on invoice cost, payable in cotton at specie value, clear of all charges of freight, &e., for any goods he may deliver into the Confederate States. Said contract has been authenticated by Mr. Mason and others. He is willing to share same, say to the extent of 50 per cent., with any houses who may feel inclined to ship. Moreover, said parties are at liberty to send out their own supercargoes, and, if the goods can meet with a better market, shippers by our vessel may avail themselves of said contract or not; but, in the latter case, there will be no certainty of getting cotton back, as the wagon traffic cannot be properly carried out without the aid of government support, in the shape of teamsters to attend to cattle, and which the Confederate government will supply from the army, to facilitate the inland- transport of goods and the bringing back of cotton for the contract.' In the event of peace or cessation of hostilities, the Confederate government, by the contract, binds itself to receive goods that are shipped but not delivered, and, for any orders not shipped, but in course of same, 10 per cent, profit upon invoice cost and charges. Any further information you may require we shall be happy to give our best efforts to obtain from the respective parties interested. We remain, dear sir, yours truly, Jas. L Bennett & Wake.” The district attorney also presented to the court an affidavit, made on the 24th of April, 1863, by Joshua Nunn, chief clerk in the United States consulate at London, appended to a copy of the foregoing letter, and deposing that the original letter was signed by the usual signatures of James I. Bennett & Wake, and that the copy was a true copy. This affidavit was verified by a certificate, as to its authenticity, by the United States consul at London, and by a certificate from the department of state of the United States, under date of May 7, 1863. This letter was offered, on the part of the government, as legitimate evidence in the cause. It was urged that the letter might have been produced by any of the witnesses, in answer to the 21st standing interrogatory; that, if so produced, it would have been competent evidence; that it clearly referred to the Peterhoff and her voyage, and was signed by the persons whose names appear in the papers of that vessel as the brokers of her cargo; that the letter was admissible on the authority of the case of The Romeo, 6 0. Rob. Adm. 351; and that, at all events, the letter, if not admissible at the hearing in the first instance, ought, being material evidence, to be admitted on' an order for' further proof. I do not think that on the authority of the case referred to, or according to the settled practice in prize, cases, the letter is admissible in evidence when offered for the first time at .the hearing. I accordingly rejected it. But while, if it were properly put in evidence in the case, I should regard it as a very material piece of evidence against the Peter-hoff and her cargo, yet, upon the proofs in the case, I do not entertain any such doubt upon the question of condemning the vessel and cargo as to make it proper that I should direct an order for further proof, in order to permit the introduction in evidence of the letter.
An objection was taken at the hearing, by the claimants, to the jurisdiction of this court in the present case, on the ground that "thé Peterhoff was first taken to the port of Key West, and afterwards brought to the port of New York, it being insisted that the district court at Key West could alone take jurisdiction of the case. There is no force in this objection. In prize cases, the court of that district into which the property is carried and proceeded against has jurisdiction. The Merino, 9 Wheat. [22 U. S.] 391. The mere carrying of a vessel or of her cargo, seized on the high seas, as prize of war, into any par
In the opinion delivered by me in the Stephen Hart [Case No. 13,3041 I stated that many of the principal questions involved in that case, and in the cases of The Springbok [Id. 13.204] and The Peterhoff wore alike, and I announced, in that opinion, the leading principles of public law which lead to a condemnation in all the cases. In my opinion in the ease of the Springbok I restated those principles. As the present opinion is necessarily of great length in consequence of the mass of documents and evidence in the case, I must content myself with. referring to my opinions in the cases of The Stephen Hart [supra] and The Springbok [supra] for a full exposition of the authorities and the reasoning which support those principles.
A neutral vessel, laden with a neutral cargo, may lawfully trade between neutral ports in time of war, in all descriptions of merchandise. contraband or otherwise, without being liable to seizure by a belligerent. But a seizure is justifiable if a vessel be engaged in carrying contraband of war for or to the enemy, or to the port of the enemy. (Instructions of the Navy Department, of August IS, 1S62, to the naval commanders of the United States.) And all contraband goods, even though belonging to neutrals, and found in neutral bottoms, are liable to capture and condemnation, if seized by a belligerent while' on a destination for the use of the enemy of such belligerent. Ordinance of the Congress of the Confederation, of February 1, 17S2, 5 Wheat. [18 U. S.] Append, p. 120; Halleck, Int. Law, c. 24, § 11, p. 576; 1 Duer, Ins. 030; The Commercen, 1 Wheat. L14 U. S.] 3SS. 389.
The doctrine of all the authorities, so far as it is applicable to the case of the Peter-hoff, is, that if her voyage was an honest one, from one neutral port to another neutral port, and she was carrying neutral goods between those two ports only, she was not liable to caiiture; but that, if her voyage was a simulated voyage, and she was carrying articles contraband of war, really destined for the use of the enemy, and to be introduced into the enemy’s country by transshipment from her, at the mo-uth of the Rio Grande, into other vessels, she and her cargo were liable to seizure and condemnation. These principles were very fully discussed by the late district judge for the Southern district of Florida in the case of The Dolphin and The Pearl [Case No. 3,975], and I refer to his opinions in those cases as being fully concurred in by me. According to these principles, the question as to whether or not the cargo of the Peterhoff was being transported in the business of lawful commerce is not decided by merely deciding the question as to whether she was documented for and sailing upon a voyage from London to the mouth of the Rio Grande. The commerce which the law regards is that which is dependent upon the destination and intended use of the cargo on board of the vessel, and not on the incidental voyage of a vessel which may be but one of many carriers through which the property is to reach its originally intended destination. The proper inquiry, in testing the lawfulness of the transportation of contraband goods, is whether they are intended for sale or consumption in the neutral market, or whether the direct or intended object of their transportation is to supply the'enemy with them. If the immediate object of the voyage of the Peter-hoff was to supply the enemy with contraband goods laden on board of her, she and her cargo were liable to capture, even though such goods were neutral property, and even though they were to be delivered in the first instance at a neutral port, provided they were destined for the direct use of the enemy. If the Peterhoff had on board goods contraband of war, which were destined, when they left England, for the use of the enemy, in the country of the enemy, and not for sale or consumption in Mexico, the mere destination of the vessel to Mexican waters, and even the mere intended landing of the good» at Matamoras, on their way to the enemy’s country, would not exempt the vessel or her contraband cargo from lawful capture as prize of war. If it was the intention of those having control of the movements of the Peter-hoff and of her cargo that she should merely lie in Mexican waters, at the mouth of the Rio Grande, and that her cargo, composed in large part of contraband articles, should be transported, after being unladen, into the enemy’s country, either directly or by tin-way of Matamoras, then her voyage was not a voyage, in good faith, from one neutral port to another neutral port, but was, so far as respected the commerce in which her cargo was employed at the time of her seizure, a voyage in the course of prosecution to the country of the enemy, although she had not, as yet, reached the mouth of the Rio Grande, and although her regular papers documented her for a voyage from London to Mala-moras, or to the mouth of the Rio Grande. If the intention that the contraband goods should reach the country of the enemy existed when they left England, that intention cannot be destroyed or rendered of no effect by the avowed, additional, and apparently innocent intention that the terminus of the transit of the vessel herself should be in Mexican waters. In such case, the sole purpose of the guise given to the transaction would be to have upon the papers of the vessel an ostensible neutral terminus for the voyage. If the object of sending the Peter-hoff into Mexican waters at the mouth of the
In reference to this very case of the Peter-hoff, the foreign office of Great Britain, in a letter to her owner, on the 3d of April, 1863, announced at its conclusion, after having communicated with the law officers of the crown, that the government of the United States has no right to seize a British vessel bona fide bound from a British port to another neutral port, unless such vessel attempts to touch o.t or has an intermediate or contingent destination to some blocked port or place, or is a carrier of contraband of war, destined for the enemy of the United States; that her majesty’s government, however, cannot, without violation of the rules of international law, claim for British vessels, navigating between Great Britain and such neutral ports, any general exemption from the belligerent right of visitation by the cruisers of the United States, or proceed upon any general assumption that such vessels may not so act as to render their capture lawful and justifiable; that nothing is more common than for tnose who contemplate a breach of blockade, or the carriage of contraband, to disguise their purpose by a simulated destination and by deceptive papers; and that it has already happened, in many cases, that British vessels have been seized while engaged in voyages apparently lawful, and have been afterwards proved, in the prize courts, to have been really guilty of endeavoring to break the blockade, or of carrying contraband to the enemy of the United States. So, also, the inception of the voyage completes the offence; and, from the moment that the vessel, with the contraband articles on board, quits her port for the hostile destination, she may be legally captured. It is not necessary to wait until the goods are actually entering the enemy’s country; but, the voyage being illegal at its commencement, the penalty immediately attaches, and continues so long as the illegality exists. Halleck, Int. Law, c. 24, § 7, p. 573; 2 Wildm. Int. Law, 218; 1 Duer, Ins. 626, § 7; The Imina, 3 C. Rob. Adm. 167; The Trende Sostre, 6 C. Rob. Adm. 390, note; The Columbia, 1 C. Rob. Adm. 154; The Neptunus, 2 C. Rob. Adm. 110.
The new course of trade to which the present war1 has given rise is notorious; and this court has abundant evidence in regal’d to it upon its own records. Neutral vessels, almost always under the British flag, are cleared from England, with papers giving an ostensible destination, for both vessel and cargo, to Cordenos, in Cuba, or Nassau, NP., or Matamoras, on the Rio Grande, in Mexico, all in neutral waters. Those destinations are used merely for call or trans-shipment, either as a new point of departure for a further voyage of the same vessel to a port of the enemy, or as a place of trans-shipment of the cargo to another vessel, in which it may enter the country of the enemy, the cargo being composed, in almost every instance, more or less, of articles contraband of war. Numerous cases have been before this court in which this course of trade has been developed, and it has been a subject of comment in the British parliament. Earl Russell, in the house of lords, on the 18th of May, 1863, alluded to it as a well-known fact, that vessels had been sent from England to Nassau, “in order to break the blockade at Charleston, Wilmington, and other places, and carry contraband of war into some of the ports of the Southern states;” and he remarked that, in a case of simulated destination, — -that is, a vessel pretending that she is going to Nassau, when she is in reality bound to a port of the enemy, — the right of seizure exists. So, too, in the house of commons, on the 29th of June, 1863, the then solicitor general of England, Sir Roundell Palmer, referred to the case of The Dolphin [Case No. 3,975], and remarked that the principles of the judgment in the case of The Dolphin were to be found in every volume of Lord Stowell’s decisions; that it was well known to everybody that there was a large contraband trade between England and America by way of Nassau; that it was absurd to pretend to shut their eyes to it; and
The representations upon the papers of the Peterhoff of the neutrality of her voyage, are, of course, not conclusive; and it is claimed on the part of the government that the evidence shows that her voyage was being prosecuted in bad faith, and under illusive semblances, and that the intent and purpose of her owner were that her cargo should be taken from her at the mouth of the Rio Grande by lighters, and be landed in the country of tlie enemy; that she drew too much water to cross tlie bar at tlie mouth of the river, and could never reach the port of Matamoras; that her cargo was composed very largely of articles contraband of war; that it was intended, on her departure from England, that these articles, and all the rest of her cargo, should be landed from her In the country of the enemy; and that the evidence in the case is such as to require the condemnation, not merely of the contraband articles, but of the rest of the cargo, and of the vessel herself.
I have already very fully analyzed the documents found on board of the Peterhoff, tlie contents of her cargo, and the testimony of the witnesses. 1 shall, therefore, content myself with stating tlie conclusions on the various questions of fact to which my mind has been brought by the entire evidence. In the examination which I have made of tlie case, I have derived valuable assistance from the printed arguments furnished me by the learned district attorney and by the special counsel for tlie captors.
The Peterhoff, a steamer of the burden of 069 tons, laden with a cargo of assorted merchandise at London, left that port early in January, 1803, documented for a voyage to Matamoras, upon tlie Rio Grande, in Mexico. She was built in Great Britain, and her registered owner is Joseph Spence, of London, sliip-builder. Prior to her present voyage, she was owned by a person named Pearson, of Hull, England, whose name is familial’ to this court, from its records, as a person heretofore largely engaged in supplying contraband goods to tlie enemy of the United States, and in sending out vessels to run the blockade. On the voyage immediately preceding the present one, she carried a cargo of cotton from Nassau to Liverpool. Under tlie agency of James I. Bennett & Wake, as brokers. acting in behalf of Joseph Spence, or bis firm of Pile, Spence & Co., her cargo, on her present voyage, was laden by a large number of shippers, all of them British subjects, with tlie exception of Samuel J. Red-gate, who is a citizen of tlie United States, and was a resident of Texas at the time of the breaking out of the war. The shippers of the cargo were, according to the bills of lading, twenty-six in number, the bills of lading being thirty-nine in number. Of the bills of lading, nine were indorsed to Robert Bow-den, a passenger, four to George W. Almond, a passenger, three to Captain Jarman, the master of the Peterhoff, two to Samuel J. Red-gate, a passenger, two to Samuel J. Redgate & Co., and one to Samuel J. Redgate and George W. Almond. Of the remaining eighteen bills of lading, nine were indorsed in blank, and were found in the possession of the master or of some of the passengers, two of these nine being shipments by Samuel J. Redgate, and two of them being shipments by. J. Spence. There were, in addition, one bill of lading, not indorsed, of goods shipped by Captain Jarman, and eight bills of lading, not indorsed, of which no duplicates were found on board, and which were also found in the possession of the master or of some of the passengers. Duplicates were found of thirty of the bills of lading, and of one of them (being one of a shipment by Samuel J. Redgate, indorsed in blank) there were four sets found. The entire number of packages found on board, excluding five cases of samples, was 4,472. Of these, 533 were covered by the bills of lading indorsed to Bowden, 772 by those indorsed to Almond, 143 by those indorsed to Captain Jarman, 155 by those indorsed to Redgate, 72 by those indorsed to Redgate & Go., 501 by the one indorsed to Redgate and Almond, 1,878 by those indorsed in blank, (of which latter the number of packages shipped by Redgate was 379, and the number shipped by J. Spence was 1,432). 403 by those not indorsed, and of which there wefe no duplicates, and 15 by the one not indorsed, and in which Captain Jarman was the shipper. While proceeding on her voyage, and going towards St. Thomas for a supply of coal, the Peterhoff was, on the 20t.it of February, ISOS, overhauled by the United States steamer Alabama, and, after her papers bad been examined, allowed to proceed to St. Thomas. On the 25th of February she left St. Thomas, and was overhauled by the Vanderbilt. Her papers were examined by the boarding officer, who immediately returned to the Vanderbilt, leaving directions that the Peterhoff should remain stationary while he communicated with his commander. Shortly afterwards the boarding officer returned to the Peterhoff, and gave to Captain 'Jarman a
A claim to the vessel and cargo was put in by Captain Jarman, on behalf of their owners, but that claim disclosed no name of any owner. The claim of Mr. Mackie, the agent at New York of the English underwriters, in averring the ownership of the steamer and her cargo by the underwriters, necessarily implies that the vessel and her cargo were insured from loss by capture, and that the ownership of the vessel and cargo was vested in the underwriters by virtue of an accepted abandonment after a loss by capture. The copy of the policy of insurance, found on board of the vessel, (if it be entitled to be regarded as a copy of a complete policy,) purports to be a policy on the hull and machinery of the vessel, and contains the clause, “warranted free from capture, seizure, detention, and all consequences of hostilities.” This, as far as it goes, is consistent with the claim put in by Mr. Mackie, as the underwriters could have no claim to the vessel and cargo, in consequence of their capture, unless they had been insured by the underwriters against loss by capture, and unless the title to them had vested in the underwriters, by reason of an abandonment after a loss by capture. So, too, the claim by the underwriters admits the lawfulness of the capture; for without a lawful capture there could be no condemnation and no loss; and the averment of the ownership by the underwriters, which ownership could only arise in consequence of an accepted abandonment, admits a lawful capture of the insured steamer and cargo, and they were subject to lawful condemnation.
The claim of Redgate is, as owner, agent, and assignee, to $175,000 in value of the cargo. According to the appraisement of the prize commissioners, which was about $257,000 for the whole cargo, the value of the goods on board, covered by the bills of lading indorsed to Redgate, Redgate & Co., and Redgate and Almond, and by the bills indorsed in blank, in which Redgate was the shipper, was less than $23,000. Almond, in his claim, claims, as owner, agent, and consignee, cargo to the value of $150,000, while, according to the valuation by the prize commissioners, that part covered by the bills of lading indorsed to him was valued at only a little over $55,000. According to the valuation by the prize commissioners, that part covered by the bills of lading indorsed to Bowden was valued at over $113,000. As no claim was interposed by Bowden to any part of the cargo; and as Captain Jarman only claims the cargo-for its owners generally; and as no claims to any portions of the cargo were put in, except those by Redgate and Almond; and as there was cargo of the value of over $50,-000, according to the valuation of the prize commissioners, covered by bills of lading indorsed in blank, (exclusive of what was shipped by Redgate,) and by bills of'lading not indorsed, it would seem to follow, necessarily, that Redgate must-have had control over large portions of the cargo which were not covered by bills of lading in which he was the shipper, or by bills indorsed to him. Indeed, he says, in his answer to the 9th interrogatory, on his re-examination, that he acts as agent for the portion of the cargo represented by the bills indorsed to Bow-den; and, in his claim, he claims as owner, agent, and consignee. At the valuation by the prize commissioners, the value of the ■cargo covered by the bills indorsed to Bow-den, and those indorsed to Redgate, Red-gate & Co., and Redgate and Almond, and those indorsed in blank, in which Redgate was the shipper, and thus the value of what is confessedly represented by Redgate, is nearly $136,000, or more than one-half of the entire valuation by the prize commissioners. Redgate does not state in his claim what specific portions of the cargo he claims' as owner, nor what as agent, nor what1 as consignee. There can be no doubt whatever that Redgate must be regarded as a citizen of the enemy’s country, within the decisions of the supreme court in Jecken v. Montgomery, 18 How. [59 U. S.] 110, and in the Prize Cases, 2 Black [67 TJ. S.] 635, although he calls himself a citizen of the United States, and says that he resides in Mata-moras. He was a citizen of the United States, residing in Texas, at-the time of the breaking out of the war, and he never has owed any allegiance either to Mexico or to Great Britain. Upon this principle, all the cargo on board of the Peterhoff which was owned by Redgate, or was in his custody and charge for the time being, is confiscable as enemy’s property. It is, also, a well-established principle, that a citizen of the enemy’s country, as Redgate was, cannot appear as a claimant, because he has no persona standi in court. Halleck, Int. Law, c. 31, § 23, p. 772; 3 Phillim. Int. Law, .§ 461; The Falcon, 6 C. Rob. Adm. 199.
Almond’s claim is on- behalf of himself, as owner, agent, and consignee, to cargo of the value of $150,000. It is to be noted, that while Captain Jarman, in his test oath to his general claim to the vessel and her cargo, on behalf of their owners, says that the vessel and cargo will belong, if restored, to subjects of Great Britain, yet neither Red-gate nor Almond, in their claims or test oaths, make any averment that any of the
The witnesses, all of them, admit their knowledge of the war, and of the blockade, by the naval forces of the United States, of the ports of the enemy. Captain Jarman and the passengers, Bowden, Almond, and Redgate, all of them declare that the Peter-lioff had no goods on board contraband of war. All of these four witnesses, except Bowden, were interested personally, as owners, in portions of the cargo, and large portions of the cargo were in the charge of them and of Bowden, by indorsements to them of bills of lading. But Tregidgo, the third officer, specifies, as contraband, boots and shoes, army clothing, and medicines; a.nd Duffay specifies smiths’ anvils and bellows. Captain Jarman swore, on his first examination, that no papers connected with the voyage, the ship, or the cargo, were' destroyed; that all the papers that were on board of the vessel at her last clearing port were in the hands of the prize commissioners; that he tore up some letters from his wife and father at the time of the capture; but that, with that exception, none were destroyed, concealed, or in any way disposed of, to his knowledge, by any person. Redgate and Bowden testified that they knew nothing of any papers being burned, tom, thrown overboard, destroyed, canceled, or attempted to be concealed. Almond mentioned the destruction, by order of Captain Jarman, of a package which was in charge of Mr. Mohl, a passenger, but he said he was ignorant of its contents, and he fixed the time of its destruction as being the morning of the day the Feterhoff arrived at St Thomas, but could not say' whether it was before or after she was overhauled by the Alabama. The officers and crew of the vessel, on their examination, disclosed a very different state of facts in regard to this package, and in regard to the destruction of papers, which testimony I shall particularly refer to, hereafter. It showed clearly that papers were thrown overboard by order of Captain Jarman, after the Peter-ltoff had been boarded by the Vanderbilt, and while the boarding officer was absent to procure a prize crew from the Vanderbilt. Thereupon. Captain Jarman had his attention directed, by the prize commissioner, to the 20th interrogatory, it being again read to him, with his answer to it. He then stated to the prize commissioner the circumstance of the throwing overboard of the package received from Mohl, and said that it contained white powder, and that Mohl was unwilling that it should be opened, because of it being patented. Captain Jar-man gives as an excuse for not mentioning, at his first examination, the circumstance of the throwing overboard of this package, that he considered the 20th interrogatory to apply to letters, bills of lading, or papers connected with the ship or cargo; and it is claimed on his behalf, that his reply to the prize commissioner, when asked, at the interview subsequent to his first examination, if he desired to add to or alter his answer to the 20th interrogatory, that he did not desire to change or add to it, was a proper one, for the reason that, as the package contained only the patent white powder, and not papers, it was not at all relevant to the interrogatory to place on the record anything in reference to the package. It must be borne in mind, that when Captain Jarman was thus called before the commissioner, he had not read the testimony given by the other witnesses in respect to the destruction of the papers. That testimony was, all of it, subsequently filed in court, on the 21st of April, 1863. On the same day, an order was made by the court that the proofs be opened. On the 27th of April, 1863, Captain Jarman, having obviously been made acquainted with the whole testimony, made his affidavit, setting forth his statement in respect to the package of white powder, for the purpose of the motion which was made by the claimants, that he be allowed to add that statement to his answer to the 20th interrogatory. He was, by order of the court, re-examined on the 16th of May on the 20th interrogatory, and on three special interrogatories. On that examination he gives his version of the destruction of the package which he was told was white powder. What he says has been already recited at length.
There are many things about this statement of Captain Jarman which are utterly incredible, and his whole statement is full of inconsistencies. He says that he told all the passengers, before leaving Falmouth, that they would not be allowed to carry any documents, and that they all declared that they had none; that, after they left Falmouth, Mohl, a passenger, came to him and said that he had a small packet of patent white powder; that he, Captain Jarman, said to Mohl that he had better deliver it up to him, for it was a dangerous article to have on board; and that Mohl then gave it to him, and he locked it up in his stateroom. Why it was thought to be a dangerous article is not stated. If it was really thought by Captain Jarman to be a dangerous article to have on board, he certainly would have thrown it overboard immediately, instead of locking it up in his state-room. He then says that nothing more was thought of it until they approached St Thomas; that, when the Alabama approached them, he called Mohl, and told him that he did not like having the packet of powder on board, and that, if the shop was likely to be searched, it must either be opened or destroyed; that he then gave it in charge of Harris, the second officer, with orders to throw it overboard,
The fact that a package, which was given to Captain Jarman by Mohl, was destroyed, is abundantly proved. Almond testifies to the fact, although he makes it to have occurred on the day they arrived at St Thomas. But, that there was a destruction of papers, both by burning and throwing overboard, the witnesses (other than Captain- Jarman and the three passengers) all agree. There is no substantial difference in their testimony. Harris, the second mate, who threw overboard the package, by the orders of the captain, says that it was a square paper package, and that it was thrown overboard after the first boarding by the officers of the-Vanderbilt, and before the prize crew took possession. He says that Captain Jarman told him not to let any one see it; that Captain Jarman had given him that same paper parcel once before, at the time the Alabama stopped the Peterhoff, and before she was boarded by the Alabama, and had told him, at that time, to keep the parcel, and throw it overboard, if told by him, Captain Jarman, or if he, Captain Jarman, made a sign to him; and that, as he did not then throw it overboard, he gave It back to the captain. Tregidgo, the third officer, confirms this testimony of Harris, in all particulars, and adds, that Captain Jarman ordered Harris to throw it overboard from a part of the ship where it would not be observed from the Vanderbilt; that Harris did so; that he heard Captain Jarman call the packet “dispatches”; and the packet was sewed up in canvas, and weighted with lead, so that it would sink; and that Mohl appeared very much distressed at the necessity of throwing it over. Tre-gidgo says that he has been a midshipman in the British navy, and , is accustomed to seeing the form in which dispatches are made up; that the package so thrown overboard was put up in the same way; that there was no mark upon it, and that there was a heavy weight of lead at each end; that the first time he saw it or knew of it was when the Alabama boarded them; and that he then saw It, and saw at once that it was a packet of dispatches. Campbell confirms the testimony of Harris, and says that the parcel was a sealed parcel, wrapped in brown paper, and was heavy. He also relates the arrangement for throwing the package overboard at the time of the visit of the Alabama, and says that when the prize crew came off from the Vanderbilt he saw Captain Jarman drop the parcel overboard from the starboard gangway. Murphy, assistant engineer, shows that it was understood on board that some papers were thrown overboard by Harris, and he speaks of Web-ber as being aware of that fact. Webber also shows that it was understood on board, among the crew, that some papers
But there is testimony as to the destruction of other papers. Duffay says that Webber, the steward, gave him a package of papers, or something that was printed, which looked like a book “that had been tossed from a great many hands,” and told him to burn it; that he did so; that he does not know its contents; and that this was about the time the Vanderbilt captured them, and while they were outside of the harbor of St. Thomas, after having been in. Webber says that he gave Duffay, to burn, some newspapers belonging to Mohl, who gave them to him, Webber, to be burned, and that he, Webber, gave them to Duffay, and told Duffay to burn them. Murphy, the assistant engineer, says that he heard on beard that some papers had been destroyed by Duffay. Tregidgo says that some written papers were burned by Duffay. Reed says that Webber was sent by the captain with a bundle of papers to Duffay to burn. Whatever it was that was burned by Duffay, the burning seems to have been caused by the visit of the Vanderbilt. And, unless it clearly appears exactly what the writings were that were burned, the presumption as to what was burned by Duffay, as well as to what was thrown overboard by Harris, must be taken most strongly against the claimants. Duffay calls it “a package of papers or something that was printed,” and says “it looked like a book.” He had it in his possession, apparently, longer than any other of the witnesses. Reed calls it a “bundle of papers." Tregidgo calls it “written papers.” Webber calls it “newspapers.” It is quite apparent, also, that what was thrown overboard by Harris, and what was burned by Duffay, came from the possession of Mohl. There is further evidence showing that Captain Jarman recognized the necessity, in view of a search of his vessel of destroying certain papers. Web-ber, the steward, says that after the Reterboff had been boarded by the Alabama or the Vanderbilt, the captain gave him a small package of papera, on blue foolscap sheets, about two sheets, and told him that if he, the captain, was taken out of the ship, he, Web-ber, must tear up and destroy those papers; but that he handed the papers back to the captain several hours afterwards, and did not destroy them. In this testimony Webber is confirmed by Reed, who says that, when Web-ber returned from giving to Duffay the papers to be burned, the captain gave Webber two papers to hide, and that in case the captain was taken out of the ship, then Webber was told to destroy them, and the captain made a motion with his fingers as if to tear them; and that this occurred in the pantry. It is very clear, therefore, that Captain Jarman felt the necessity of destroying papers. Under these circumstances, the presumption would be, not only that he destroyed the papers which he thus handed to Webber, but that the package which was thrown overboard, under such a pressing exigency, contained papers. The only testimony contained in the evidence of the witnesses, as to the destination of the cargo other than what results by implication from their averments that the vessel was bound to Matamoras, is in the evidence of Tregidgo, who says that he heard Heyek, one of the passengers, say that the cargo was to go across the river from Mata-moras into Texas; and that he is very confident of this.
I have already particularly referred to the various papers found on board of the vessel. The register, the shipping articles, the invoices, the bills of lading, and the clearance, all of them appear fair on their faces. I have also alluded to the fact that there were no invoices of the thirty sets of artillery harness, the buckles, or the bagging, or the drugs consigned to Burchard & Co., of Matamoras. What may have been contained in the mail which was on board has not been made known, for the reason that the mail was delivered up unopened. No letter of instructions to Captain Jarman was found on board, nor any letters to any consignees, nor were there found on board any letters giving any instructions to any person in regard to any disposition of the cargo of the vessel, unless such letters may have been in the mail bag. Almond says that he had no consignees, but was to select his own. and that he had no mitten instructions; and Redgate says that
There are some things, in respect to the log-book of the Peterhoff, which are quite open to observation. It commences on the 30th of November, 1862, and the entries from that time to the 5th of December, 1862, covering three pages, are filled with a voyage from Liverpool to London; and the heading across the top of those pages describes the log as one of a voyage from Liverpool towards London. The heading of the next two pages describes the log as being a log of the steamer while lying in London harbor. The next six pages have no headings whatever. They embrace the period from December 16, 1862, to January 7, 1S63, both inclusive. The entries during that time show that the vessel was lying at London, taking in cargo. The next two pages, covering the entries of January 8 and 9,’ 1863, have this heading: “Log of the S. S. Peterhoff, from London towards Plymouth,” some word having been erased over which the first half of the word “Plymouth” is written. The next page, embracing the entries of January 10 and 11, has the heading: “Log of the S. S. Peterhoff, lying in Plymouth.” The next page, embracing the entries of January 13, 14, and 15, has no heading. The next page, embracing the entries of January 16 and 17, has the heading: “Log of the S. S. Peterhoff, lying in Plymouth.” The next two pages embracing the entries of January IS, and 19, have, each of them, the heading: “Log of the S. S. Peter-hoff, from Plymouth.” The latter one of these two pages being a left-hand page, and there being no heading to the next right-hand page. And there is no further heading whatever in the book, over any of the entries in it, which extend from January 20 to March 9. Upon the title-page of the log-book there appear printed the words, “A log-book containing the proceedings on board the;” then written, the words “S. S. Peterhoff;” then printed the words “from the port of;” then written, the word “London;” then printed, the word “to;” then written, the word “Matamoras;” then printed, the words “Commanded by;” then written, the words “Capt’n S. Jarman, R. N. R.;” then printed, the word “Commencing,” the blank after which is not filled; then printed, the word “Ending,” the blank after which is not filled; then printed, the words “Kept by;” then written, the words “H. Bound.” Notwithstanding this title-page, the voyage with which the log-book commences is one from Liverpool to London, occupying from November 30, 1862, to December 6, 1862. at which date she arrived at London. She remained at London until the 7th of January. All the entries in the
The utter absence, from the manifest and bills of lading, of any satisfactory information as to the true contents of the packages on board of the Peterhoff, composing her cargo, induced the making of the order for the discharge and inspection of her cargo. The court has, in the official report of the commissioners, filed June 2, 1S63, an inventory of the contents of the cargo, being the result of the opening and examination of a sufficient number of packages to show what was on board. The commissioners reported that there were 4,472 packages of cargo, exclusive of five cases of samples. They also reported that a large portion of the cargo was “particularly adapted to army use;” that large numbers of cases contained “Blueher boots,” known as “army shoes;” that a number of cases contained “cavalry boots,” so labelled — a label annexed to the report, from one of the trunks of boots, specifying its contents as “100 army Bluchers,” and one annexed, from another trunk, specifying its contents as “36 cavalry boots;” that 192 bales of the cargo consisted of “gray blankets,” “adapted to the use of an army,” and believed to be such as are used in the United States army; that 95 cases contained horseshoes of a “large size;” that 36 cases of a large size, contained “artillery harness,” in sets for four horses, with two riding-sad-dies attached to each set; that there were also on board “two hydraulic presses,” in pieces, adapted for “cotton;” and that a considerable portion of the cargo consisted of drugs, directed, “Burehard & Go., successors, Matamoras, Mex’o,” in which, among an assorted lot of drugs, quinine, calomel, morphine, and chloroform formed an important portion. The inventory annexed to the report filed June 2, 1863, shows that, in addition to the articles thus particularly referred to by the commissioners, there were found 305 coils of rope, (45 of the coils mentioned in the manifest consisting each of two '’nils of rope,) 501 boxes of tin, 29 casks of sheet zinc, 1,343 bundles of hoop iron, 2S0 bundles and bars of steel or iron, 42 anvils, 60 blacksmiths’ bellow's, and some quinine and assorted drugs. An examination of the invoices found on board of the Peterhoff shows that the number of pairs of Bluchers and Blueher boots found on board was 14,450, of which 1,000 pairs are called, in the invoices of them, “men’s army Bluchers;” that the number of pairs of long artillery boots was 180; that there were 5,580 pairs of the gray blankets, of which 2,000 pairs are called, in the invoices of them, “government regulation gray blankets;” that the quantity of horseshoes contained in the 95 casks was 9 tons; that of the 305 coils of rope, 90, weighing over 5 tons, were tarred hemp rope, and 215, weighing about 11 tons, were Manilla rope, the weight of the 305 coils being about 16 tons; that the 29 casks of sheet zinc weighed about 14 tons; and that the 1,343 bundles of hoop iron were of the weight of 34 tons. No invoices were found of the 36 cases of artillery harness, but the appraisement report of the prize commissioners, of November 19, 1S63, shows that there were 30 complete sets of russet artillery harness for four horses, contained in 30 cases, and that the 6 other cases contained 25S heavy russet artillery halters, and 600 galvanized halter chains. Nor were there any invoices of the drugs consigned to Burehard & Go., but the appraisement report of November 29, 1863, shows that those drugs consisted of 2,300 ounces of quinine, 1,000 pounds of calomel, 245 pounds of chloroform, and sundry other drags. The invoices on board also show that, including the quinine and assorted drugs mentioned in the report filed June 2, 1863, there were, in addition to the drugs consigned to Burehard & Co., the following drugs: 340 ounces of quinine. 20 pounds of chloroform, 16 pounds of opium, 3S ounces of morphine, and various other drugs; that there were, also, 200 pairs of shoes, which the invoice of them calls “negro brogans;” and, also, 379 yards of blue military cloth and blue military serge, 307 pieces of scarlet, white, and blue bunting, several saddles, bridles, and saddle-cloths, a quantity of. harness-rings, harness-buckles, bridle-buckles, martingale-rings, and trace-chains, 1,559 yards of gunny cloth, 1,9S8 yards of
The remark of the commissioners, in their report filed June 2, 1863, is, that a very large portion of the cargo was particularly adapted to army use; and this observation is fully warranted, in view of the quantities of Blu-chers and Blucber boots, cavalry and artillery boots, gray blankets, horseshoes, military cloth, sets of artillery harness and saddles and bridles, to say nothing of the coils of rope, tin, sheet zinc, hoop iron, steel, anvils, and blacksmiths’ bellows, and quinine, chloroform, morphine, opium, and other drugs, all of which were not only useful for army purposes, but were, many of them, articles of which there was great need in the army of the enemy, by reason of the stringency of the blockade of their ports. It is laid down by all writers on international law, that implements and munitions of war, which, in their actual condition, are of immediate use for warlike purposes, are to be deemed contraband whenever they are destined to. the enemy’s country, or to the enemy's use. Hal-leck, Int Law, a 24, g 13, p. 577; 3 Phillim. Int Law, g 229. By the treaty of commerce between France and Denmark, in 1742, cordage was declared to be contraband; and, by the treaty of 1801, between Great Britain and Russia, to which Denmark and Sweden subsequently acceded, saddles and bridles were enumerated as contraband, the list being further augmented, by the convention of July 25, 1803, by the addition of equipments for cavalry. Halleek, Int. Law, c. 24, § 16, p. 580. The 18th article of the treaty of November 19, 1794, between the United States and Great Britain, (which treaty is no longer in force,) enumerated the articles which, in future, should be esteemed contraband of war, and specified, among those articles, horse furniture. holsters, belts, and generally all implements of war, as also cordage, and generally whatever might serve for the equipment of vessels, excepting, however, wrought iron; and declared that those articles should be just objects of confiscation whenever they were attempted to be carried to the enemy. 8 Stat. 125. The law of prize, as universally established by the prize courts of Europe and the United States, declares that all instruments and munitions of war are to be deemed contraband, and that rule is held to embrace, by its terms and by fair construction, among other articles, all military equipments and military clothing. Halleek, Int Law, c. 24, § 20, p. 583, and authorities there cited. It is, also, an established doctrine of the English admiralty, that all manufactured- articles, which, in their natural state, are fitted for military use, or for building and equipping ships-of-war, among which articles cordage is included, are contraband in their own nature. to the same extent as instruments and munitions of war, and no exception is admitted in their favor, except by express provisions of treaty. Halleek, Int Law, c. 24, § 21, p. 584, and authorities there cited; The Charlotte, 5 C. Rob. Adm. 305; The Neptunus, 3 C. Rob. Adm. 108; 2 Wildm. Int. Law, 212. These principles assign, without any question, to the list of contraband articles found on board of the Peterhoff, as being instruments of war, if they were destined to the use of the enemy or to the enemy’s country, the following articles, being either military equipments, military clothing, manufactured articles fitted, in their natural state, for military use, or cordage, namely: the 14,450 pairs of Bluchers and Blucher boots, the 180 pairs of long artillery boots, the 5,580 pairs of gray blankets, the 30 sets of artillery harness, and their accompaniments of halters and halter-chains, the saddles, bridles, saddle-cloths, waiste-belts, and ball-bags, and the 305 coils of rope. It is also claimed, on the part of the libellants, that the horseshoes contained in the 95 casks, and which the report of the commissioners describes as horseshoes of a large size, were designed for the cavalry service of the enemy, and were wholly unsuitable for any such existing service in Mexico; that the anvils and blacksmiths’ bellows were such as accompany army forges; and that those articles, together with the tin, sheet zinc, hoop iron, and cast steel, the 2,640 ounces of quinine, 265 pounds of chloroform, 1,000 pounds of calomel, 16 pounds of opium, 38 ounces of morphine, and other drugs, and the blue military cloth, if not necessarily con-. traband in themselves, under all circumstances, must in view of the quantities of them found on board of the Peterhoff, and the demand existing for some, if not all of them, for the use of the army and navy of the enemy, be considered as contraband in the present case, if they were going to the country of the enemy. I do not intend to hold that any of these articles are contraband, other than such as come under the head of military equipments, military clothing, manufactured articles fitted, in their natural state, for military use, and cordage, although strong reasons might be urged for including many of the other articles named within the list of contraband; under the circumstances surrounding this case. It is said, in Moseley, Contr. War, p. 9: “The tendency of all the recent authorities, both in works written on the subject and in judicial decisions, especially the decisions of Sir William Scott, goes to show that contraband or not contraband of war is a question of evidence, to be determined in each case by reference, not to one particular rule of law, but many; not to any one fact, however strong that may be, but to all the circumstances connected with the goods in question. It is not only, or not so much, whether the goods are, in themselves, or as belonging to a class, capable of being applied to military or naval use, but wheth
It is also laid down by high authority, that the probable use of articles is inferred from their destination; and that, if articles capable of military use are going to a place where any need of their employment in military use exists, it will ho presumed that they were going for military use. although it is possible that they might have been applied to civil consumption. Halleck. Int. Law, e. 24, §§ 23, 24, pp. 586, 5S7; 1 Kent, Comm. 140; 3 Phillim. Int. Law, § 254. The large quantities of the articles found on board of the Peterhoff which are claimed to be contraband, and which are not strictly military equipments, or military clothing, or manufactured articles which, in their natural state, are fitted for military use, is a circumstance worthy of consideration, on the question as to whether those articles were probably intended for the ordinary uses of life, or were destined for military use. This remark applies with great force to the horseshoes, of which there were 95 casks, containing 9 tons, and to the drugs, among which there were 2,640 ounces of quinine, 265 pounds of chloroform, and 1,000 pounds of calomel. As none of the articles alleged to be contraband can be so, unless they were going to the country of the enemy, the question of their destination is vital. If a hostile destination can be certainly assigned to one portion of this cargo, and that a portion which was under the charge of Captain Jar-man, and of the passengers, Redgate, Almond, and Bowden, a like destination can properly be assigned to all the articles composing the cargo, as they were all of them under the charge of Captain Jarman and those passengers. For I am led to the conclusion, upon the whole evidence, that there was a concert of action between Captain Jar-man and those three passengers, in respect to the cargo. Bowden has put in no claim to any part of the cargo, but has made Red-gate his agent, by power of attorney, in reference to the part of the cargo represented by the bills of lading indorsed to him, Bow-den; and Captain Jarman put in a claim to the vessel and the entire cargo, “for the interests of his principals, the owners of the steamer Peterhoff, her tackle, &c., and cargo.” The same kinds of articles are found to have been covered by the bills of lading indorsed to Captain Jarman and to the three passengers. Thus, by the bills indorsed to Bowden, are covered 500 pairs of brown-gray blankets, 700 pairs of Blueher boots, and 1,122 pairs of Bluchers; by the bills indorsed to Almond, 2.000 pairs of gray blankets, 7,12S pairs of Bluchers, 20 coils of Manilla rope, and a quantity of martingale-rings, bridle-buckles, straps, waiste-belts, and ball-bags; by the bills indorsed to Redgate & Co., a quantity of haiter-chains, harness-buckles, martingale-rings, bridle-buckles, trace-chains, riding saddles, bridles, and saddle-cloths; by the bills indorsed to Redgate, 145 coils of Manilla rope; by the bills indorsed to Captain Jarman, 2,000 pairs of government regulation gray blankets, 50 coils of Manilla rope, 140 ounces of quinine, 20 pounds of chloroform, and a quantity of morphine, opium, and other drugs; and by the bills indorsed in blank, in which J. Spence is named as the shipper, (he being the owner of the Peter-hoff,) 90 coils of tarred hemp rope, and a cotton press. The invoices of that rope and cotton press, and of the 10 bales of gunny cloth and the 13 bales of cotton wrapping, marked “Peterhoff, owner,” are all on the same sheet, and are each headed thus: “Adventure to Matamoros, per S. S. Peterhoff, to Pile, Spence & Co., Dr.”
Joseph Spence, the owner of the Peterhoff, was one of the, firm of Pile, Spence & Co. That film is spoken of by several of the witnesses as the owners of the Peterhoff, and it is that firm that is named in the papers found on board as the owners of the cotton press or presses, and of the gunny cloth and cotton wrapping, and of 90 of the coils of rope. J. Spence is named as shipper in the bill of lading covering the cotton press, the packages containing which were marked “F. S. & C.,” and are specified in the bill of lading as “11 packages hydraulic press.” Under another bill of lading, Mr. Spence was the shipper of 362 packages of’ merchandise, ■which contained 90 coils of tarred hemp rope, and large quantities of hardware, and the smiths’ bellows and anvils. The cotton press is described by the prize commissioners, in their appraisement report of November 19, 1863, as one hydraulic press, 8-inch cylinder, with bed-plate and braces, 2 heavy iron-bound boxes for pressing cotton, 4 bars of railroad iron, and 8 car wheels, all in 11 packages, with 4 other packages containing iron implements, in bagging, supposed to be the same mark. The commissioners, in their report filed J une 2, 1863, speak of there having been on board two hydraulic presses, in pieces, adapted for cotton. There was an invoice found on board, showing that Pile, Spence & Co. bought of J. Bowes, of Manchester, December 24, 1862, “1 hydraulic press, with ram to lift 4 feet, and set of pumps complete,” for £170, and “2 birch railway boxes, bound with iron, and fitted up with wheels, stillages, rails, &e.,” for £75, being a total, less 1V> per cent, discount, of £241. 6s. Od. The bill of the. cotton press above referred to, headed, “Adventure to Mat-amoras, per S. S. Peterhoff, to Pile, Spence & Co., Dr.,” reads thus: “Marks, P. S. & Co., 1 to 11, cotton press, £250.” There is also a letter from J. Bowes to Pile, Spence & Co., dated Manchester, December 26, 1862, saying: “I herewith enclose a tracing of the cotton press, erected. This shows it erected for cotton goods, but the only difference, when
I have alluded to the fact that the mail bag found on board of the Peterhoff was. on the application of the district attorney, ordered by the court to be given up to the British authorities, it having been a public mail put up in London by the post-office authorities there, and directed to the post-, master at Matamoras. The contents of this mail were not inspected before its delivery. The state department, charged with the foreign relations of the government, deemed it most proper to direet the district attorney to make application to the court for the surrender of the mail bag, unopened, to the British authorities. The court, regarding the district attorney as entitled to control the proceedings in the suit, and as entitled to dispense, on his part, with the contents of the mail bag as evidence in the case, if he desired to do so, granted the application. It was urged, on the hearing, by the special counsel for the captors, that the natural presumption must be, that there were in that mail bag letters relating to the cargo of the Peterhoff, as no letters to any consignee were found on board, nor were any letters found in the possession of any of the passengers respecting the disposition of the cargo; that, if the cargo was in truth intended for delivery in Mexico, the letters relating to it would have shown that fact, and would have been evidence to show the lawfulness of the voyage and the unlawfulness of the capture; that if. on the other hand, those letters contained evidence that the cargo was intended for delivery in the enemy’s country, for the use of the enemy, an examination of them would have disclosed such evidence; that the effect of the surrender of the mail bag and its contents, under these circumstances, was merely to preclude the libellants and the captors from any reliance on such proof as might have been drawn from the contents of the letters in it; that the claimants in this case had a right to insist, in vindication of the lawfulness of the voyage of the Peterhoff, and of the lawfulness of the commerce in which she was engaged at the time of her capture, and with a view of showing the neutral destination of the cargo, if it, in fact, had such neutral destination, that the mail bag should be opened and its contents examined; that if it contained no letters on the subject of the voyage or of the cargo, no harm would have ensued to any one; that if it contained letters showing the lawfulness of the voyage, and the neutrality of the destination of the cargo, this would have been evidence in favor of the claimants; that the claimants asserted no such right, but quietly acquiesced in the surrender of the mail bag and its contents, and made no opposition thereto, although represented in court by their counsel when the application was heard by the court; and that this conduct on the part of the claimants, under all the circumstances surrounding this case, affords the strongest possible evidence of their knowledge that the surrendered mail bag contains proofs which would inculpate the vessel and her cargo, and their owners. But I cannot regard this position as a sound one. It cannot be presumed that the mail bag contained any letters relating to the cargo. There is no evidence that it did, or that any of the claimants knew that it did. And, moreover, after the surrender of the mail bag, unopened, on the application of the prosecuting otncer of the government, I do not think that any speculation as to its contents can properly be indulged in, conducing to support the prosecution.
I am led to the conclusion, upon all the evidence, that the Peterhoff, when captured, although ostensibly upon a voyage from London to neutral waters at the mouth of the Bio Grande, was laden with a cargo composed largely of articles contraband of war, which were not designed, on their departure from England, to be sold or disposed of in the neutral market of Matamoras, but were designed to be delivered, either directly, or indirectly by transshipment, in the country of the enemy, and for the use of the enemy. The character and quantity of the articles composing the cargo were such as to show that the cargo had very little adaptation to the Mexican market, or to the small port of Matamoras, so far as any legitimate use or sale, or consumption of it in Mexico was concerned. It was admirably adapted, in every particular, to the market of the enemy; and
The evidence is entirely satisfactory that rapers on board the Peterhoff were destroyed at the time of her capture, some by being burned and some by being thrown overboard. Those that were thrown overboard were so disposed of by the direct orders of Captain Jarman at the time, and all the circumstances of the case are such as to warrant the conclusion that the papers so thrown overboard must have contained matter in relation to the Peterhoff and her cargo which it was important should be concealed from the knowledge of the officers of the United States cruiser. To the destruction of those papers Captain Jarman added, in the first place, the false assertion, in his first an
There are many other concurring circumstances, which are inconsistent with an honest neutral commerce, and only consistent with a design to introduce contraband articles into the country of the enemy. The manifest of the cargo does not disclose the articles on board, but only mentions the cargo as consisting of boxes, bales, cases, kegs, coils, packages, casks, bundles, chests, and trunks, except in a few unimportant instances; and, in one instance, in the manifest, the word “rope,” which had been written after the word “coils,” has been carefully erased. If the cargo was in good faith designed for sale in the neutral market of Matamoras, a disclosure, in the manifest, of the contraband articles on board would have done no harm, because the commerce would have been lawful, and the merchandise not contraband, even though the entire cargo had consisted of munitions of war. The suppression in the manifest, which is a most important paper to be carried by a vessel in time of war, in reference to her cargo, especially when she is near the country of a belligerent, of all facts tending to show what articles were on board designed and adapted for army and navy purposes, cannot be looked upon in any other light than as a confession that those articles were destined to be delivered in the enemy’s country, and for the enemy's use, and were, therefore, contraband. It is true that invoices of nearly all of the cargo were on board, but those invoices were almost all of them in the possession, not of the master, but of the passengers, and formed no part of the ship’s papers. The proper paper of a vessel, to show the particulars of her cargo, is her manifest; and, when the boarding officer of a cruiser demands of the master of a merchant vessel the papers of his vessel, he obtains, as the paper showing the particulars of the cargo, the manifest, and not the invoices. In some of the treaties of the United States with foreign countries, it has been provided that, when the two nations are at war, the vessels of both of them, being laden, must be provided, among other papers, “with certificates containing the several particulars of the cargo, that so it may be known whether any forbidden or contraband articles lie on board of the same.” The Amiable Isabella, C Wheat. [19 U. S.] 1; Treaty of 1795 with Spain, art. 17 (S Stat. 14S); Convention of 1800 with France, art. 17 (8 Stat. 180). This rule exists and is to be administered, whether embodied in treaty stipulations or not, and the foundation of it is that in time of war, the documents properly constituting the documents of a merchant vessel should show the particulars of her cargo, especially where, as in the present case, she was documented for neutral waters just outside the limits of the country of one of the belligerents, those neutral waters being extensively used as a mere convenience for the transshipment of cargoes bound to that country. Moreover, there were no invoices whatever found on board for the sots of artillery harness, and the halters and halter chains accompanying the same, or for a large quantity of the harness rings and buckles, or for any of the quinine, chloroform, calomel, and other drugs addressed to Burch-ard & Co., Matamoras. So, too, the bills of lading found on board are of such a character as to indicate that the cargo was not intended, in good faith, to be delivered at Mata-moras, for sale or use there, but was to be delivered in the enemy’s country. No one of the thirty-nine bills of lading covering the cargo contains the name of any consignee, with the exception of the one for the fifty-two packages addressed to Burcliard & Co., Matamoras. All the other bills, which embrace all the rest of the cargo, declare the merchandise to be deliverable to the order of the shippers. Of the thirty-nine bills, twenty-one are indorsed to lorn- poisons who were on board of the vessel at the time of her capture (three of them being passengers, and one being her master), nine are indorsed in blank (of which nine, two are for shipments made by Redgate, and two for shipments made by Spence, the owner of the vessel), and nine are not indorsed (of which nine, one is for goods of which Captain .Tarman was the shipper). All the bills of lading, as well those indorsed specially to the passengers and master, as those indorsed in blank, and those not indorsed, and originals as well as duplicates, were found in the possession of the passengers or the master. Captain Jarman says That all the cargo, except what was consigned to Burchard & Co., was represented by himself and the three passengers, Redgate, Almond. and Bowden; and Redgate says that the cargo would have been at the disposal of the persons holding the bills of lading. These bills of lading entirely fail to disclose the truth as to the contraband articles on board of the vessel. In the bill of lading for the cotton press, it is called a “hydraulic press.” and the only other articles men-tioued in the bills of lading in such a manner
Under all the circumstances surrounding this case, and in view of all the departures from the ordinary course of commercial transactions, it is not credible that there was a design, in good faith, to sell and dispose of the cargo in the market of Matamoras. Of this nature is the inference to be derived from the character and quantity of the contraband portion of the cargo, if it had a hostile destination. The gray blankets, the Bluchers and Blucher boots, the cavalry and artillery boots, the artillery harness, and the coils of rope, were especially adapted to the use of the enemy, as were also the cotton press, the smiths’ bellows and anvils, the quinine, chloroform, opium, morphine, and other drags, and the horseshoes, which the commissioners report to be horseshoes of a large size, it being understood that mules and small horses are used in Mexico, as a general thing, while cavalry horses are used by the enemy. Another fact of marked significance is that among the passengers on board of the vessel were two residents of Texas, who, for the purposes of this case, must, under the adjudications of the supreme court in Jecker v. Montgomery. 18 How. [59 U. S.] 110, and in The Prize Cases, 2 Black [67 U. S.] 635, be considered as public enemies. One of them, Redgate, was, at the commencement of the war, a citizen of Texas, and admits, now, that he is a citizen of the United States. This admission he took great pains to make on the record of his testimony, having caused it to be corrected, by erasure and interlineation, from his testimony as first given, which was that he was once a citizen of the United States, and now owed allegiance to Mexico, and thought he did not owe allegiance at present to the United States. He is the claimant, as owner, either alone or jointly with others, or as agent or consignee, of a considerable portion of the cargo, which portion must be condemned as being enemy’s property, irrespective of all other considerations. The other passenger, Mohl, told the witness Tregidgo that he was a resident of Texas. He, with three other passengers— Edwards, Heyck, and Ellsworth — left the Pe-terhoff at Key West, because, as Captain Jarman testifies, they had no interest in the cargo. Mohl’s persistence in refusing to permit. the contents of the packages in question to be examined by any person, for the reason assigned by him, as stated by Captain Jarman, that the contents were a white powder, which was patented, and could not be seen by any one but himself and friends, taken in connection with the circumstances under which the package was thrown overboard, and with the particular time selected for throwing It overboard, and with the fact that it had been previously arranged to throw the same package overboard, in case of the search of the Peterhoff by officers from the Alabama, besides leading to the conclusion that documents were contained in the package of a character so dangerous that they were thrown overboard when it was manifest that the officers from the Vanderbilt were about to search the Peterhoff, and, at the same time, so important to be preserved that they were not sacrificed by Mohl save at the last extremity, and with the greatest reluctance, producing in Mohl, as testified to by Tregidgo, an appearance of great depression at the necessity of destroying the package, might perhaps warrant the presumption that Mohl was an agent of the enemy.
The witness Tregidgo, who was formerly a midshipman in the British navy, and who stands entirely uncontradicted and unim-peached, testifies that he heard Mr. Heyck, one of the passengers, say that the cargo was to go across the river from Matamoras into Texas. Although this is hearsay evidence, yet, in a prize case, such evidence is sometimes the most reliable to prove the destination of the vessel and cargo. Tregidgo says that Heyck told him that he belonged to Texas. Heyck left the vessel at Key West, -with Mohl and two other passengers. If it was intended that the cargo should be carried across the river from Matamoras into Texas, it was to be delivered directly into the enemy’s country, and for the enemy’s use, and its transit through Mata-moras, for that purpose, would not be for any purpose of lawful commerce at Mata-moras, nor would it impress upon the cargo a neutral destination.
Upon all the proofs in the case, therefore, notwithstanding the ostensible destination of the Peterhoff to neutral waters at the mouth of the Rio Grande, the actual hostile destination of the cargo must be considered as established. In arriving at this conclusion, I have, as heretofore stated, not given any weight to the circular letter of James I. Bennett & Wake, of November 24, 1802, produced upon the hearing, nor do I regard it as necessary, in consequence of any doubt I have as to the proper disposition to be made of this case, to open the case for further proof, in order to allow the introduction of that letter in evidence. It is apparent, from a mere reading of the letter, that every circumstance proved in evidence, in respect to the Peterhoff and her cargo, is entirely consistent with the course of trade, marked out so specifically in the letter, in respect to carrying goods into the country of the enemy and bringing back cotton in return, and it is entirely inconsistent with any honest destination of the cargo to a Mexican market, for use or sale there. In addition, we have the facts, brought to light in the correspondence of October 27, 1S02, between Pile, Spence & Co.
Contraband articles, destined for the use of the enemy, were found on board of the Peterhoff, covered by bills of lading indorsed to each of the claimants on the record, namely, Captain Jarman, Redgate and Almond, and Bowden, who is represented by Redgate. Contraband articles were also found, destined for the use of the enemy, shipped by Spence, the owner of the vessel, Therefore, all the claimants of the vessel and cargo had on board contraband articles, which were destined to be delivered, directly, or indirectly by transshipments, into the enemy’s country, and for the use of the enemy,- and not for a sale or disposition in the neutral market of Mexico. The evidence is clear, that all the cargo on board was really represented by, and under the control of, Captain Jarman, Redgate, Almond, and Bowden. Consequently, not only were the contraband articles subject to lawful capture by a vessel of the United States, but the other articles on board, belonging to or represented by Captain Jarman, Redgate, Almond, Bowden, and Spence, embracing the entire cargo of the vessel, were subject to like lawful capture, notwithstanding the vessel was, at the time of her capture, on an ostensible voyage from England to neutral waters at the mouth of the Rio Grande.
The settled rule of law is that where contraband articles, destined for the use of the enemy, are found on board of a vessel, all other goods on board of that vessel belonging to the owner of the contraband articles, even those goods which are innocent, must share the fate of the contraband goods. Halleck, Int. Law, c. 24, § 6, p. 573; 3 Phillim. Int Law, § 277; 2 Wildm. Int Law, 217; The Sarah Christina, 1 C. Rob. Adm. 237. 1 have already, in this opinion, referred to the authorities which establish the principles of prize law which lead to the condemnation of this cargo. I discussed those principles very fully in the cases of The Stephen Hart [supra] and The Springbok [supra], but there are some features in the present case which demand special remark. The Stephen Hart was bound, on her papers, to Cardenas, in Cuba, and The Springbok to Nassau, N. P. Those parts, though sufficiently near the country of the enemy to induce their use for the trade in which those vessels were engaged, were yet sufficiently distant to expose their cargoes to great hazard of capture in their transit, after transshipment from those ports, to the enemy’s ports. But the transit of the cargo of the Peterhoff from the neutral waters at the mouth of the Rio Grande into the enemy’s country would have been attended with no danger whatever, those neutral waters being on the very border of the enemy’s country. Every bill of lading of the cargo of the Peter-hoff (and the thirty-nine bills of lading found on board covered the entire cargo) contains a provision that the goods are to be taken from alongside of the ship at the mouth of the Rio Grande, within thirty days, in lighters, provided such lighters can cross the bar; and the stipulation on the part of the vessel, in every bill of lading, is, to deliver the goods on the Rio Grande, in the Gulf of Mexico. After the lighters had crossed the bar, and ascended the Rio Grande, which is the dividing line between the country of the enemy and Mexico, their freight might as well and as se
There is another principle of law, which has been applied by the court of admiralty in England to cases like the present one, and which has been pressed upon the court in this case by the special counsel for the captors. He maintains that, where the neutral port or neutral territory lies in such immediate proximity to a port or territory of the enemy as to render it impossible to prevent contraband articles from going immediately from one port or territory to the other, it is as much a violation of neutral obligations, to be followed by confiscation of the property when seized, to introduce contraband articles into the port or territory of the neutral in time of war, as it is to carry them directly to the enemy’s port or territory: that such was the position of the neutral waters at the mouth of the Rio Grande, and of the neutral port of Matamoras, in respect to the state of Texas and the port of Brownsville; that lighters, laden with contraband articles, leaving a vessel at the mouth of the Rio Grande, and ascending that river to deliver their freight at Matamoras, might as well deliver it at Brownsville, directly opposite, so far as regards the possibility of preventing such contraband articles from reaching the enemy; and that it is not a sound pi-oposition, that the proximity of a neutral port to the country of the enemy cannot in any manner affect or impair neutral rights, in respect to commerce with such neutral port We have, indeed, the high authority of Sir William Scott for saying that the enforcement of belligerent rights demands and justifies a restriction upon the commerce of neutrals with a neutral port thus situated: and he enforced such restriction. In The Zelden Rust, 6 C. Rob. Adm. 98, a quantity of Dutch cheese, a contraband article, was on board of a vessel destined to Corunna, in Spain. It was contended by the king’s advocate that a destination to Corunna, a lawful port. was. in fact, a destination to Ferrol, an unlawful port, since those ports were both in the same bay, and so situated as to render it impossible to prevent supplies from going immediately to Fer-rol, for the use of the Spanish navy, if they were permitted to enter the bay unmolested, under an asserted destination to Corunna. Sir William Scott, after holding cheese to be a contraband article, says: “Corunna is, I believe, itself a place of naval equipment in some degree; and if not so exclusively, and in its prominent character, yet, from its vicinity to Ferrol, it is almost identified with that port. • These ports are situated in the same bay, and, if the supply is permitted to be imported into the bay, it would, 1 conceive, be impossible to prevent it from going on immediately, and in the same conveyance, to Ferrol. There is, in this respect, a material difference between the present case and the case which happened yesterday,” (The Frau Margaretha, G C. Rob. Adm. 02,) “of similar articles going to Quimper. That port, though in the vicinity of Brest, is situated on the opposite side of a projecting headland or promontory, so as not to admit of an immediate communication, except by land carriage. Without meaning to interfere with the principles of that decision, I think myself warranted to consider this cargo, on the present destination, as contraband, and, as such, subject to condemnation.” On the principle of this decision, the cargo of the Peter-hoff was lawfully captured, and liable to condemnation, even though it was honestly destined to the port of Matamoras, to be there used or sold.
The principle thus maintained in the case of The Zelden Rust, is recognized in the decision of the same judge in the case of The Maria. 6 C. Rob. Adm. 201. In that case, the French then enemies of Great Britain, were in possession of one bank of the river Weser, the neutral port of Bremen being on the other bank; and a blockade of the river had been instituted by Great Britain. The cargo of the vessel was sent from Bremen, in lighters, to the Jade, to be shipped to America, while the vessel herself went in ballast from the Weser to the Jade, and there took on board her cargo. In delivering his opinion, in that case. Sir William Scott says (page 203): “A blockade imposed on the Weser must, in its nature, be held to affect the commerce of Bremen; because, if the commerce of all the towns situated on that river is allowed, it would be only to say, in more indirect language, that the blockade itself did not exist. It cannot be doubted, then, on general principles, that these goods would be subject to condemnation, as hav
It is apparent, from the terms of the. correspondence of October 27, 18G2, between -lames I. Bennett & Wake, and Pile, Spence & Co., that the adventure of the Peterhoff, in taking out a cargo to the Kio Grande, with the intention of bringing home, in return, a cargo of cotton, was an adventure in which James I. Bennett & Wake, as brokers, and Pile, Spence & Co., as representing Joseph : Spence; a member of that firm, and the own-j er of the Peterhoff, were to be interested jointly. No charter of the vessel from Spence to any person has been produced, unless the correspondence referred to is to be considered as a charter. James I. Bennett & Wake were employed as brokers by Pile, Spence & Co., on behalf of Spence, to obtain the outward cargo for the vessel, and, as such brokers, their names appear on the manifest. Captain Jarman says that he was appointed to the command of the vessel by Spence, and that she was delivered to him by Spence. According to the well settled rule of law, therefore, Spence must be held responsible for all that was done by his agent, Captain Jarman, and for the employment of the vessel by Captain Jarman, knowingly, in carrying contraband articles to the country of the enemy, irrespective of the fact that Spence himself shipped on board of her, as an adventure, 90 coils of tarred hemp rope, which are found to have been contraband articles going to the country of the enemy, and also the cotton press, and the smiths’ bellows and anvils, and various other articles. Where the vessel belongs to the owner of the contraband articles, or where there are circumstances of fraud as to the papers or the destination of the vessel or the cargo, and thus an attempt, under colorable appearances, to defeat the rights of a belligerent, the vessel which carries the contraband articles will be condemned, and the penalty on the vessel will not be limited merely to a loss pf freight and expenses. The Bingende Jacob, 1 C. Bob. Adm. 89; The Jonge Tobias, Id. 329; The Franklin, 3 C. Bob. Adm. 217. So, too, the vessel will be condemned, not only where her owner is privy to the carriage of contraband, but where the master of the vessel, as the agent of such owner, interposes so actively in the fraud as to consent to give additional color to it by sailing with false papers. The Franklin, 3 C. Rob. Adm. 217, 221, note; . The Mercurius, 1 C. Rob. Adm. 28S, note; The Edward, 4 C. Bob. Adm. OS; The Neu-tralitel, 3 C. Bob. Adm. 295; Carrington'v. Merchants’ Insurance Co., 8 Pet. [33 U. S.] 495, 520, 521. So, also, if the owner of a vessel places it. under the control of a master, who permits it to carry, under false papers, contraband goods, ostensibly destined to a neutral port, but in reality going to the country of the enemy, he must sustain the consequence of such misconduct on the part of his agent. The Ranger, 6 C. Bob. Adm. ■123; Jecker v. Montgomery, 18 How. [59 U. ; S.] 11G, 119; The Mercurius, 1 C. Bob. Adm. SO. A neutral owner of a vessel is, as a general rule, held responsible for all the acts of the master of his vessel, committed in violation of the rights of a belligerent. The Yrouw Judith, 1 C. Bob. Adm. 150; The Columbia, Id. 154; The Hiawatha, 2 Black' [07 TJ. S.] 035, 678. I can come to no other conclusion in this case than that the acts of.
Captain Jarman, in signing bills of lading of the character of those in the present case, and in sailing with a manifest giving no adequate information as to the contraband goods on board, and in causing the destruction of papers, and in fabricating the absurd story about the white powder, and, in addition, in testifying that the vessel, the whole of whose cargo, except the cases directed to Burchard & Co., was, as he says, represented by Almond, Redgate, Bowden and himself, had no goods on board which he considers contraband of war, and in averring his inability to specify the contents of his cargo, when he himself was .the indorsee of bills of lading covering contraband articles, must be regarded as evidence that he entered upon a systematic course of concealment of the real character of the contraband articles on board, so as to subject the vessel to condemnation as the result of such fraud, when, under other circumstances, she might go free, even though her cargo was confiscated. Moseley, Contr. War, 97, 98. A master is, in time of war, bound to know the contents of his cargo, and cannot be permitted to aver his ignorance of the contents of contraband packages on board of his vessel. The Oster Iiis-oer, 4 C. Rob. Adm. 199.
The capture of the Peterhoff on the high seas, at the place of her capture, was lawful. From the moment a vessel, having on board contraband articles, which have a destination to the enemy’s country, leaves her port of departure, she may be legally captured ; and it is not necessary to wait until the goods are actually endeavoring to enter' the enemy’s country, the penalty attaching the moment the illegal transportation commences. Halleck, Int. Law, c. 24, § 7, p. 573; 2 Wildm. Int. Law, 218; 1 Duer, Ins. 026, § 7; The Imina, 3 C. Rob. Adm. 167; The Trende Sostre, 6 C. Rob. Adm. 390, note; The Columbia, 1 C. Rob. Adm. 154; The Neptunas. 2 C. Rob. Adm. 110.
An appeal to the supreme court was taken in this ease within ten days after the decree was made, and the vessel was taken by the navy department, for the use of the government, at an appraised valuation of $80,000. No application was made to the court, on the part of the claimants, for leave to put in further proof, and most clearly this is not a case where the privilege of further jjroof would be tendered to the claimants.
The vessel and cargo are, both of them, condemned.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.