The Adula, 176 U.S. 361 (1900)

MR. JUSTICE BROWN delivered the opinion of the Court.

The rectitude of the decree of the district court condemning the Adula as prize of war depends upon the existence of a lawful and effective blockade at Guantanamo, the knowledge of such blockade by those in charge of the vessel, and their intent in making the voyage from Kingston.

1. No blockade of Guantanamo was ever proclaimed by the President. A proclamation had been issued June 27 establishing a blockade of all ports on the southern coast of Cuba between Cape Frances on the west and Cape Cruz on the east, but as both Santiago and Guantanamo are to the eastward of Cape Cruz, they were not included. It appears, however, that blockades of Santiago and Guantanamo were established in the early part of June by order of Admiral Sampson, commander of the naval forces then investing the ports on the southern coast of Cuba, and were maintained as actual and effective blockades until after the capture of the Adula.

The legality of a simple or actual blockade, as distinguished from a public or presidential blockade, is noticed by writers upon international law, and is said by Halleck to be

constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts, it ceases when they terminate; its existence must therefore, in all cases, be established by clear and decisive evidence.

(Halleck, International L., c. 23, sec. 10.) A de facto blockade was also recognized as legal by this Court in the case of The Circassian, 2 Wall. 135, 150, in which the question arose as to the blockade of New Orleans during the Civil War. In delivering the opinion of the Court, the Chief Justice observed:

There is a distinction between simple and public blockades which supports this conclusion. A simple blockade may be established by a naval officer, acting upon his own discretion or under direction of superiors, without governmental notification; while a public blockade is not only established in fact, but is notified, by the government directing it, to other governments. In the case of a simple blockade, the captors are bound to prove its existence at the time of capture, while in the case of a public blockade, the claimants are held to proof of discontinuance in order to protect themselves from the penalties of attempted violation.

A like ruling was made by Sir William Scott in the case of The Rolla, 6 C.Rob. 364, which was the case of an American ship and cargo, proceeded against for the breach of a blockade at Montevideo imposed by the British commander. It was argued, apparently upon the authority of The Henrick and Maria, 1 C.Rob. 146, that the power of imposing a blockade is altogether an act of sovereignty which cannot be assumed or exercised by a commander without special authority. But, says the learned judge:

The court then expressed its opinion that this was a position not maintainable to that extent; because a commander going out to a distant station may reasonably be supposed to carry with him such a portion of sovereign authority, delegated to him, as may be necessary to provide for the exigencies of the service on which he is employed. On stations in Europe, where government is almost at hand to superintend and direct the course of operations under which it may be expedient that particular hostilities should be carried on, it may be different. But in distant parts of the world, it cannot be disputed, I conceive, that a commander must be held to carry with him sufficient authority to act, as well against the commerce of the enemy, as against the enemy himself, for the more immediate purpose of reduction.

See also The Johanna Maria, Deane on Blockades 86.

In view of the operations then being carried on for the purpose of destroying or capturing the Spanish fleet and reducing Santiago, we think it was competent for Admiral Sampson to establish a blockade there and at Guantanamo as an adjunct to such operations. Indeed, it would seem to have been a necessity that restrictions should be placed upon the power of neutrals to carry supplies and intelligence to the enemy, as they would be quite sure to do if their ships were given free ingress and egress from these harbors. While there could be no objection to vessels’ carrying provisions to the starving insurgents if their destination could be made certain, the probabilities were that such provisions carried to a beleaguered port would be immediately seized by the enemy and used for the sustenance of its soldiers. The exigency was one which rendered it entirely prudent for the commander of the fleet to act without awaiting instructions from Washington.

But it is contended that, at the time of the capture, the port of Guantanamo was completely in the possession and control of the United States, and therefore that the blockade had been terminated. It appears, however, that Guantanamo is eighteen miles from the mouth of Guantanamo Bay. Access to it is obtained either by a small river emptying into the upper bay or by rail from Caimanera, a town on the west side of the upper bay. It seems that the Marblehead and the Yankee were sent to Guantanamo on June 7, entered the harbor and took possession of the lower bay for the use of American vessels; that the Panther and Yosemite were sent there on the 10th, and on the 12th the torpedo boat Porter arrived from Guantanamo with news of a land battle, and from that time the harbor was occupied by naval vessels and by a party of marines who held the crest of a hill on the west side of the harbor near its entrance, and the side of the hill facing the harbor. But the Town of Guantanamo, near the head of the bay, was still held by the Spanish forces, as were several other positions in the neighborhood. The campaign in the vicinity was in active progress, and encounters between the United States and Spanish troops were of frequent occurrence.

In view of these facts, we are of opinion that, as the City of Guantanamo was still held by the Spaniards, and as our troops occupied only the mouth of the bay, the blockade was still operative as against vessels bound for the City of Guantanamo. Here again, the case of The Circassian, 2 Wall. 135, is decisive. The Circassian was captured May 4, 1862, for an attempted violation of the blockade of New Orleans. The city, including the ports below it on the Mississippi, was captured during the last days of April, and military possession of the city taken on May first. It was held that neither the capture of the forts nor the military occupation of the city terminated the blockade, upon the ground that it applied not to the city alone, but controlled the port, which included the whole Parish of New Orleans and lay on both sides of the Mississippi and all the ports on that river and on the lakes east of the city. The following language of the Chief Justice is equally pertinent to this case:

Now it maybe will enough conceded that a continuous and complete possession of the city and the port, and of the approaches from the gulf, would make a blockade unnecessary, and would supersede it. But at the time of the capture of the Circassian, there had been no such possession. Only the city was occupied, not the port, much less the district of country commercially dependent upon it and blockaded by its blockade. Even the city had been occupied only three days. It was yet hostile; the rebel army was in the neighborhood; the occupation, limited and recent, was subject to all the vicissitudes of war. Such an occupation could not at once, of itself, supersede or suspend the blockade. It might ripen into a possession which would have that effect, and it did, but at the time of the capture, it operated only in aid and completion of the naval investment.

The occupation of a city terminates a blockade because, and only because, it supersedes it, and if a vessel be bound to a port or place beyond, which is still occupied by the enemy, the occupation of the mouth of the harbor does not necessarily terminate the blockade as to such places.

Granting the existence of a lawful and sufficient blockade at Guantanamo, its legal effect was a closing of the port and an interdiction of the entrance of all vessels of whatever nationality or business. It is well described by Sir William Scott in The Vrouw Judith, 1 C.Rob. 150, 151, as

a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of that place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is that, having already taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule which this Court means to apply that a neutral ship, departing, can only take away a cargo bona fide purchased and delivered before the commencement of the blockade. If she afterwards takes on board a cargo, it is a fraudulent act and a violation of the blockade.

It is also said by Phillimore, 3 Int.Law 383, that "the object of a blockade is to prevent exports as well as imports, and to cut off all communication of commerce with the blockaded place." The sailing of a vessel with a premeditated intent to violate a blockade is ipso facto a violation of the blockade, and renders the vessel subject to capture from the moment she leaves the port of departure. Yeaton v. Fry, 5 Cranch 335; The Circassian, 2 Wall. 135; The Frederick Molke, 1 C.Rob. 86; The Columbia, 1 C.Rob. 154; The Fortune, 2 C.Rob. 94; Wheaton on Captures 196. If a master have actual notice of a blockade, he is not at liberty even to approach the blockaded port for the purpose of making inquiries of the blockading vessels, since such liberty could not fail to lead to attempts to violate the blockade under pretext of approaching the port for the purpose of making such inquiries. The Admiral, 3 Wall. 603; The Prize Cases, 2 Black 635, 677; Duer on Ins. 661; The Cheshire, 3 Wall. 231; The James Cook, Edwards 261; The Josephine, 3 Wall. 83; The Spes, 5 C.Rob. 76; The Betsy, 1 C.Rob. 334; The Neptunus, 2 C.Rob. 110; The Little William, 1 Acton 141, 161; Sperry v. Delaware Ins. Co., 2 Wash. C.C. 243. If there be any distinction in this particular between a proclaimed blockade and an actual blockade by a naval commander, it does not aid the Adula in view of the admitted fact that she was informed by the Vixen that the port was under the control of the United States military forces and that the war ships were visible before she entered the bay.

In this connection, we are cited by counsel for the Adula to a change in the law said to have been effected by the adhesion of this government at the beginning of the war to the declaration of Paris abolishing privateering. This supposed change apparently rests upon an extract from a French treatise upon international law by Pistoye and Duverdy, vol. 1, p. 375, in which it is said that, by the modern law, in consequence of the declaration of Paris, a vessel must be notified to depart from the blockaded port before she can be captured, and that the contrary rule was the result of the doctrine of the British Orders in Council during the Napoleonic wars, which is now given up by that country. It is also said that

the old rule was that it was a breach of blockade to enter upon a voyage to the blockaded port. This rule is now changed, because neutrals are obliged only to respect effective blockades. It may well be that a blockade of which official notice has been given is not an effective blockade, or it may be that a blockade which has been established by a sufficient force may have ceased to exist. Neutrals then have the right to begin a voyage to a blockaded port in order to see if the blockade still continues. They are only guilty when, while the blockade continues, they actually endeavor to break it.

We cannot, however, accept this opinion as overruling in any particular the prior decisions of this Court in the cases above cited to the effect that a departure for a blockaded port with intent to violate the blockade renders the vessel liable to seizure. When Congress has spoken upon this subject it will be time enough for this Court to act. We cannot change our rulings to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject.

We have not overlooked in this connection the provision contained in Art. 18 of Jay’s Treaty of 1794 to the effect that,

whereas it frequently happens that vessels sail for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated unless, after notice, she shall again attempt to enter.

Fitzsimmons v. Newport Ins. Co., 4 Cranch 185. Waiving the question whether this clause of Jay’s Treaty was abrogated by the war of 1812, and accepting it as a correct exposition of the law of nations, it applies only to vessels which have sailed for a hostile port or place without knowing that the same is either besieged, blockaded, or invested. The whole case against the Adula depends upon the question whether those in charge of her knew before she left Kingston that Santiago and Guantanamo were blockaded. If they did, the treaty does not apply. If they did not, they are entitled to the benefit of this principle of international law. In the case of the Maryland Ins. Co. v. Woods, 6 Cranch 29, in which it was held that the vessel could not be placed in the situation of one having notice of the blockade until she was warned off, the decision was placed upon the express ground that orders had been given by the British government and communicated to our government

not to consider blockades as existing, unless in respect to particular ports which may be actually invested, and then not to capture vessels bound to such ports unless they shall have been previously warned not to enter them.

This order was treated by the Court as a mitigation of the general rule so far as respected blockades in the West Indies.

2. The questions concerning the notification of and the intent to violate blockade depend largely upon the same testimony, and may be properly disposed of together. There is no doubt that the Adula belonged to a British corporation, the Atlas Steamship Company, was registered in the name of the managing director of such corporation, flew the British flag, and prior to the Spanish-American war was engaged in general trade between Kingston and other ports on the coast of Jamaica in connection with other steamers of the same line from New York, and from time to time had made voyages to Cuban ports. After the breaking out of the war, the steamer was chartered by various persons, in the intervals of its regular work, for voyages to Cuba. On May 7, in pursuance of a verbal arrangement between the agent of the steamship company and the American consul, the Adula was sent to Cienfuegos in Cuba to bring away refugees. On arrival off Cienfuegos, she was boarded by officers of the U.S.S. Marblehead, who, upon being shown the permit and the ship’s papers, allowed her to proceed, though the officers served the master with a printed copy of the President’s proclamation blockading Cienfuegos and several ports on the north side of Cuba, and made a memorandum on the ship’s log that they had done so. She sailed from Cienfuegos May 10 with 350 passengers, mostly women and children, was again boarded on leaving the port, but was allowed to proceed.

On May 16th she was chartered by a Cuban refugee to proceed to Santiago, arrived there the following day, and returned with 200 passengers. No war ships were off Santiago at that time. She arrived at Kingston on the 19th, and landed her passengers.

On May 21, she was again chartered to go to Cienfuegos, having a permit from Washington, through the consul, to pass the blockade. She reached the blockading fleet on the 23d, was boarded by a boat from one of the vessels, and was again given permission to proceed; was arrested upon suspicion by the Spanish authorities in the port of Cienfuegos, but after a detention of sixty hours, was released. She sailed again on May 26 directly for Kingston, saw no war ships in sight, and arrived at Kingston on May 28.

After making two of her ordinary coasting voyages around Jamaica, she was offered a further charter for Cienfuegos, but could not obtain the permission of the American consul, who told the master he had no authority to grant it. She left June 15 with a letter of instructions to the captain to proceed to the fleet off Cienfuegos, then under a public blockade, to ask permission from them to enter the port, and if granted, to go in, and if not granted, to return to Jamaica. She arrived at Cienfuegos June 17, landed some provisions which had been shipped for her passengers, found no war ships there, and sailed away on the 19th with only ninety-eight passengers. Sixty miles S.S.E. from Cienfuegos, she was stopped by the U.S.S. Yankee, and an officer sent on board. The master showed the boarding officer his instructions and the ship’s papers, as well as the passenger list; was informed that Cienfuegos was blockaded, and that he must not enter it again. She arrived in Kingston on June 21, proceeded around the island on her usual coasting trip, and returned to Kingston on the 27th.

She was chartered for her last voyage June 28 by one Solis, a Spanish subject born near Havana and living with his family at Manzanillo. He had landed recently from Manzanillo with a cargo of refugees. He had lived in Cuba, and at one time had been the French consul at Manzanillo, though there was no evidence that he had ever cooperated with the Spanish authorities during the war or rendered aid or comfort to the Spanish forces. He had, however, a passport from the Spanish consul to enter the cities to which he was bound and take passengers away as refugees. He had previously been engaged in shipping supplies to Cuban ports and returning with passengers for Jamaica. He also carried a special personal Spanish passport granted the year before. Such being his political character, he entered into a charter party with the Atlas Steamship Company under which he was at liberty to go to Manzanillo, Santiago, and Guantanamo, and if not permitted to enter these harbors, to return to Kingston. An option was also given to the charterer for another similar voyage upon like terms upon twenty-four hours’ notice after arrival at Kingston. The charter was for the conveyance of passengers from Cuban ports to Kingston at one hundred pounds per day. Solis was entered upon the ship’s articles as supercargo. She was evidently chartered for his personal benefit, with power to name the port which she was to visit but with no right to interfere with the navigation of the ship. Solis had made the same sort of trip twice before with English schooners, and expected upon this trip to make $19,000 net profit. He appeared to have known nothing about the previous voyages of the Adula, and had seen her for the first time only about two months before. The vessel bore a passport from the Spanish consul at Kingston, a bill of health vised by the Spanish consul. With regard to his knowledge of the blockade at Guantanamo, he testified as follows:

I knew that there was a condition of war existing between America and Spain on the 21st. They told me on board the Adula that the blockade of Guantanamo was published on the 27th, the day before. I had not heard it before I left Kingston. I did not know officially Guantanamo was blockaded. On board the Adula, I heard that, on the 27th, there was issued an order from the President of the United States declaring a blockade of the port of Guantanamo, but I did not know it until we arrived at Guantanamo. At Kingston I heard there were some warships at Guantanamo, and I told Captain Forwood that the first thing I would do would be to go to the admiral and tell him my intentions. I did not think the papers in Kingston published the blockade. I did not see it if they did. The people generally did not talk about it. I read something about "McCalla’s camp." I understood Guantanamo was not blockaded by the United States. I heard that marines had been landed at the entrance to Guantanamo, Caimenera -- the bay is called Caimenera -- and that the marines had possession of the port, and that the ships were inside. I cannot tell when I received the information that marines had been landed there and taken possession of the point of Guantanamo or Caimenera. Perhaps it was one or two days before. I don’t know what the others knew about a state of war existing. I understood Guantanamo was not declared officially blockaded, although there were some vessels there. I got that information from newspapers in Kingston, and from those newspapers I got the information that marines had been landed at the entrance to the bay on the east side -- they call it "East Point."

It further appeared that the American consul warned Mr. Forwood, the agent of the ship at Kingston, of the existence of the blockade in the following language, as stated by the agent himself:

"Well, Forwood, I would not advise you to let the ship go; they won’t let her into Guantanamo, and they will be watching for her." I said to him, "Oh, Dent, let me show you the captain’s instructions. He has got orders to go to the fleet there and ask their permission to take some refugees." "Well," he said, "I don’t know, but they will be watching for her, and I think that Senor Solis is a Spanish agent, carrying $300,000 in gold to buy over the rebels in the American camp." I told him that I had inquired about the man, and that it was one of the usual Kingston yarns.

It also appears that Mr. Forwood knew that Mr. Solis was a Spaniard, and had been shipping supplies to Cuban ports. After taking on board a large supply of coal, the Adula left Kingston on June 28, rounded Morant Point on the east end of the island of Jamaica, proceeded at her usual speed toward Santiago, and sighted the blockading fleet off that port about noon of the 29th. The captain gives as his reason for going by the way of Santiago that he was not acquainted with the coastline to the eastward of that port, had no large scale chart, and therefore steered more to the westward than he should have done because he knew the coast about Santiago, and did not know that about Guantanamo, but it is quite as probable that it was the presence of a number of war vessels off Santiago which sent her to Guantanamo. She was hailed by the Vixen within half a mile of the entrance to the harbor of Guantanamo, brought to, and then directed into the harbor, where several war vessels were lying, and was shortly thereafter seized by order of Commander McCalla of the Marblehead.

In his testimony before the prize commissioners, Captain Yeates, master of the Adula, stated that he was stopped by the Vixen about half a mile from the entrance to the bay and permitted to proceed, and that it was not until after he had anchored that he was acquainted with the blockade of the harbor. One of the crew testified somewhat to the contrary, and swore that,

about three days before I left Kingston, I heard that Guantanamo was blockaded; I heard it from people around the streets; I did not see it; I heard it was in the papers; I never heard any of the officers of the Adula or people on board talking about Guantanamo’s being blockaded, and I don’t know exactly whether the owner or master or officers of the ship Adula knew that Guantanamo was blockaded. I knew about it, but I don’t know anything about them. I don’t know how I found it out, but I heard it on the streets of Kingston.

He also swore

that at that time, we went up to the mouth of the harbor, and at that time, when we got to Guantanamo, we found the war ships there blockading the harbor.

A small cruiser, the Vixen,

ran up across our bow and the captain of the cruiser asked us: "Didn’t you sight the war ships down at Santiago?" and the captain said, "Yes." And the captain stopped, and he said: "Didn’t you hear that Guantanamo was blockaded?" and our captain said "Yes." Then he said, "You can proceed on." I heard about the blockade in Kingston, but after leaving Kingston, until we met the cruiser, I never heard anything more about it.

Captain Yeates also testified that he expected to be stopped when he approached Santiago. Mr. Solis, who had chartered the Adula for this voyage, testified that he was told while on board the Adula that the blockade of Guantanamo was published on the 27th, the day before, but that he had not heard of it before he left Kingston, though he had heard, while in Kingston, that there were some war ships at Guantanamo. At the time the Adula was captured, she was searched for her ship’s papers and other documents and letters. Several letters were found, as well as copies of a newspaper published at Kingston which spoke of the American military and naval operations both at Santiago and Guantanamo.

Among these extracts from "The Gleaner" of June 14, 1898, is the following, apparently telegraphed from London:

A dispatch boat off Santiago reports that the Americans now hold 35 miles of the coast east of Santiago, including Guantanamo harbor, and that 20,000 Spanish troops at Santiago are preparing to desperately resist the Americans, who have landed 3,000 rifles, 300,000 rounds of ammunition, and large stores of provisions,

and the following from the issue of June 25:

On board the Adula, which arrived from Cienfuegos this week, there was an individual officially appointed by the Captain General in Cuba to make arrangements in Jamaica for regularly supplying the Spanish troops with provisions; in fact to make Jamaica a base for Spanish purposes.

In this connection, it would seem from the report of the Bureau of Navigation that the consul at Kingston telegraphed to Washington that the undersecretary of the Captain General of Cuba and certain Spanish naval officers

came aboard the Adula with, it is supposed, $250,000 to purchase provisions to be taken to Manzanillo for Cervera. . . . Extensive preparations being made for shipping provisions to Cuba.

In a letter from Captain Yeates to his parents under date of July 13, and apparently written while the Adula was at Savannah, he says:

And now to tell you dear ones how it is or was that we got into this pickle, which has not come as any surprise, as I have anticipated this for some time; it is I did not think I should be in command when it happened, but it was my luck to be, I suppose.

Speaking of the capture, he says:

They turned the ship upside down, took my papers, measured the coals, and took stock generally. As far as the ship is concerned, she was on perfectly legitimate business, fetching refugees. Whether Mr. Solis chartered the ship for that purpose alone, of course, has to be proved, and we are now on our way to Savannah for that purpose with a prize crew and Lieutenant Anderson in charge.

In a postscript dated at Savannah, July 15, he says:

We have not yet reached the town proper, for we are going through the same performance as we did at Tampa, but I was not caught this time, for I managed to keep my things out of the oven.

As tending to show the good faith of this expedition, and more particularly the owners of the Adula, much reliance is placed upon the letter of Mr. Forwood to Captain Yeates of June 28, the day upon which the Adula left Kingston, in which he instructs him, in case he finds American warships off Guantanamo, to stop immediately upon being signaled, and communicate to the commanding officer the object of the voyage, and to be careful upon his arrival

not to interfere, or in any way make any observations or sketches, or anything you may see or hear of, but adhere strictly to the duties of your ship,

and to observe the same precautions off Santiago. In this letter, he also instructs him not to allow any provisions to leave the ship, or to do anything which could be interpreted as a breach of faith in being allowed to pass the blockade and enter the ports. While this letter doubtless tends to show good faith on the part of Mr. Forwood, still it was written with full information from Mr. Solis that the consul had refused to give him a passport without permission from the American authorities in Washington. That Mr. Forwood recognized the necessity of an authority from Washington in order to pass the blockade is shown by his letter to Captain Walker of May 21, 1898, in reference to one of the voyages to Cienfuegos, in which he says:

In giving this letter to the blockade, be sure and ask the officer if he would allow the ship to pass another voyage without cabling to Washington.

From all the testimony in the case, it appears very clear:

That Guantanamo was actually and effectively blockaded by orders of Admiral Sampson from June 7 until after the capture of the Adula;

That the Adula was chartered to a Spanish subject for a voyage to Guantanamo, Santiago, or Manzanillo for the purpose of bringing away refugees, and that such voyage was primarily at least, a commercial one for the personal profit of the charterer. During such charter, she was to a certain extent, pro hac vice, a Spanish vessel, and a notice to Solis of the existence of the blockade was a notice to the vessel. The Ranger, 6 C.Rob. 126; The Jonge Emilia, 3 C.Rob. 52; The Napoleon, Blatch.Prize Cases 296. The fact of her sailing under a Spanish passport -- in fact, an enemy’s license -- is not devoid of significance. Indeed, we have in several cases regarded this as sufficient ground for condemnation. The Julia, 8 Cranch 181; The Aurora, 8 Cranch 203; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143. This passport gave the Adula authority to enter the Cuban ports and take away refugees, and it is a circumstance worthy of notice that it could not be found when the vessel was captured. Solis acknowledged its existence, but made no effort to account for its loss.

Both Solis himself and the Adula had been previously engaged in similar enterprises to the coast of Cuba, and were chargeable with notice not only of war between the United States and Spain, but with the fact of military and naval operations upon the southern coast of Cuba;

The fact of such war, that the object of it was the expulsion of the Spanish forces from Cuba, and that military and naval operations were being carried on by us with that object in view, must have been matters of common knowledge in Kingston, as well as the fact that the commerce with the southern ports of Cuba was likely to be interrupted, and that all intercourse with such ports would become dangerous in consequence of such war.

While the mission of the Adula was not an unfriendly one to this government, she was not a cartel ship, privileged from capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only secondarily, if at all, for the purpose of humanity. Her enterprise was an unlawful one in case a blockade existed, and both Solis and the master of the Adula were cognizant of this fact. The direction of the commanding officer of the Vixen, which overhauled the Adula off Guantanamo, to enter the harbor, cannot be construed as a permission to violate the blockade, as such permission would not be within the scope of his authority. The Hope, 1 Dod. 226; Rogers v. The Amado, Newb. 400: The Joseph, 8 Cranch 451; The Benito Estenger, post,568.

That upon arrival off Santiago the blockading fleet was plainly visible, and we think there is a preponderance of evidence to the effect that both Solis and the master of the Adula knew of the actual blockade, that it was generally known in Kingston before she sailed, and that the Adula was chargeable with a breach of it, notwithstanding the letter of instructions from Mr. Forwood to Captain Yeates. As the blockade had been in existence since June 7, it is scarcely possible that in the three weeks that elapsed before the Adula sailed, it should not have been known in Kingston, which was only a day’s trip from the southern coast of Cuba, and with which it appears to have been in frequent communication. This probability is confirmed by the direct testimony of the sailor Morris that it was matter of common talk in Kingston. The testimony of Solis that he did not know "officially" that Guantanamo was blockaded, by which we are to understand that it had not been officially proclaimed, is perfectly consistent with a personal knowledge of the actual fact. His statement seems to be little more than a convenient evasion. Upon the principle already stated, his knowledge was the knowledge of the ship.

We think the facts herein stated outweigh the general statement of the officers that they had not heard of the blockade.

3. There was no error in denying the motion of the claimant to take further proofs. It appears from the opinion of the court that

the hearing upon the proceedings for condemnation was upon the evidence afforded by the examination of the captured crew taken upon standing interrogatories, the ship’s papers, and other evidence of a documentary character found upon the ship by the captors. This was done in conformity to the established rule in prize causes.

The motion to take further proof was made upon the affidavit of Robert Gemmell, the New York agent of the company, the statement of W. P. Forwood, the Kingston agent, annexed thereto, as well as his own affidavit and exhibits, and upon the counter-testimony of Anderson, Ellenberg, and Gill taken de bene esse. Upon the hearing of this motion, the court considered the allegations of Forwood, attached to Gemmell’s affidavit, as if Forwood had testified upon depositions regularly taken, giving due weight to the same in connection with other evidence in the case, and was of opinion that the evidence as it stood was not susceptible of any satisfactory explanation, and comparing the proof proposed to be brought forward with that already in the case, came to the conclusion that the legal effect of the facts before the court could not be varied by the explanation offered. The motion was denied. In considering this case, we have also given effect to these affidavits, and have come to the conclusion that if they are to be taken as true, and the further proofs, if taken, would support them, they would not change our opinion with respect to the affirmance of the decree.

If an examination of the ship’s papers and of the crew, taken in preparatorio, upon which the cause is first heard in the district court, make a case for condemnation, the order for further proof is, as stated in The Grey Jacket, 5 Wall. 342, 368, always made with extreme caution, and only where the interests of justice clearly require it. If the ship’s papers and the testimony of the crew do not justify an acquittal, it is improbable that a defense would be established by further proof, and as the interest of all parties require that prize causes be quickly disposed of, it is only where the testimony in preparatorio makes a case of grave doubt that the court orders the taking of further proofs. The Pizarro, 2 Wheat. 227; The Amiable Isabella, 6 Wheat. 1, 77; Benedict’s Adm’y sec. 512a; Story on Prize Courts 17.

It was said by Sir William Scott in The Sarah, 3 C.Rob. 330, that

it has seldom been done except in cases where there has appeared something in the original evidence which lays a suggestion for prosecuting the inquiry farther. In such cases, the court has allowed it; but when the matter is foreign, and not connected with the original evidence of the cause, it must be under very particular circumstances indeed that the court will be induced to accede to such an application; because, if remote suggestions were allowed, the practice of the court would be led away from the simplicity of prize proceedings, and there would be no end to the accumulation of proof that would be introduced in order to support arbitrary suggestions.

These remarks are specially pertinent to the offer of further proof that, while Solis owed allegiance to the Queen of Spain, yet that he left Cuba soon after the war broke out, took no part in the hostilities, but, on the contrary, had done all in his power while he remained in Cuba to assist citizens of the United States residing there; had sided with the natives of Cuba, and was desirous that a government should be established in the island under the auspices of the United States. As was observed in the very satisfactory opinion of the district judge in this case, this evidence was altogether irrelevant to the case of the Adula, and was, to a certain extent, a contradiction of his testimony before the prize commissioners that he was a loyal subject of Spain, bore a Spanish passport, and carried a bill of health vised by the Spanish consul at Kingston. It would throw the whole practice in prize cases into confusion if the testimony, taken in preparatorio, when the facts are fresh in the minds of the witnesses, were subject to be contradicted by the same witnesses after its weak points had been developed. It was said by Mr. Justice Story in The Pizarro, 2 Wheat. 227:

Nor should the captured crew have been permitted to be reexamined in court. They are bound to declare the whole truth upon their first examination, and if they then fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give color to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule.

Upon the whole, we think the decree of the district court was correct, and it is therefore

Affirmed.

*

Atlas Steamship Company

Jamaica Agency, June 28, 1898

Captain Yeates, S.S. Adula.

Dear Sir: I enclose herein a copy of the agreement under which your vessel is proceeding on, and on board the ship will be the charterer, to whom I now introduce you, Mr. Jose R. Solis, and I ask you to show him every attention on the voyage.

You will see by a perusal of the agreement that you are on a voyage wholly and solely for the conveyance of refugees from the ports named to Kingston.

On your arrival at Guantanamo, to which port you will proceed direct, you will find, no doubt, American warships off the port. You will, when signaled to, stop immediately and communicate to the commanding officer the voyage that you are on, and, in fact you can show him these sailing orders, and I do not think that the commanding officer will make any trouble whatever to your continuing the voyage into the port.

You must be careful on your arrival there not to interfere or in any way make any observation or sketches or anything that you may see or hear of, but adhere strictly to the duties of your ship.

At Guantanamo, it is likely there may be some difficulty in obtaining a pilot, and if the commanding officer gives you permission to proceed, it is just possible that he may be able to tell you where you can obtain the services of a pilot to go in.

From Guantanamo you will proceed to off Santiago. Here you will meet the other fleet, and carry the same instructions out with them as I have mentioned to you in reference to Guantanamo. The charterer is telegraphing at once to Santiago for a pilot to come off to meet the ship if permission is granted to pilot your ship into the port.

From Santiago you will proceed to Manzanillo, and from thence back to Kingston. The charterer, Mr. Solis, may order you direct from Guantanamo to Kingston or from Santiago to Kingston, and in such a case you will follow out his orders, which he will give you in writing. He has the option of going to the three ports, but it may be convenient for him to go to only one or even two. The boat’s crew that is mentioned in the appendix of this agreement you will provide, but it will be necessary for you to have the ensign in the stern so as to show your nationality.

You will not allow any provisions of any sort to leave your ship at any of the ports or to do anything that is contrary to the laws of the country or that may be interpreted as a breach of faith in being allowed to pass the blockade and enter the ports, and I must ask you not to permit any of your crew to land at any of the ports, and only yourself, if necessary, to visit the British consul.

Wishing you a pleasant voyage, I am sir,

Yours faithfully,

(S’g’d) W. Peploe Forwood, Gen. Ag’t, Jca.