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Dixie, of July 26, 1898, appears to us to have been written wholly from the standpoint of the efficiency of the blockade as a military blockade. He says: "Captain Folger kept me through the night of the 24th, as he had information which led him to believe that an attack would be made on his ship during the night. There are in San Juan, Porto Rico, the Terror, torpedo gunboat; the Isabella II., cruiser; a torpedo boat; and a gunboat. There is also a German steamer, which is only waiting an opportunity to slip out." And further: "It is Captain Folger's opinion that the enemy will attempt to raise the blockade of San Juan, and it is my opinion that he should be reinforced there with the least possible delay."
In our judgment, these naval officers did not doubt the effectiveness of the commercial blockade, and had simply in mind the desirability of rendering the blockade, as a military blockade, impregnable, by the possession of a force sufficient to successfully repel any hostile attack of the enemy's fleet. The blockade was practically effective, had remained so, and was legal and binding, if not raised by an actual driving away of the blockading force by the enemy, until the happening of which result the neutral trader had no right to ask whether the blockade, as against the possible superiority of the enemy's fleet, was or was not effective in a military sense.
"But was this ship attempting to enter the port of San Juan, on the morning of July 17th, when she was captured? It is contended by counsel for the claimant that, if the rulings of the district court should be disapproved of, an opportunity should still be given it to put in further proofs in respect of the violation of the blockade, notwithstanding it had declined to do so under the order of that court. That order gave 90 days to the captors for further proofs, and to the claimant, thereafter, such time for testimony in reply as might seem proper. After the captors had put in their proofs, the claimant, without introducing anything further, moved for the discharge and restitution of the steamship, on the ground of the ineffective character of the blockade, and because the evidence did not justify a decree of condemnation, but undertook to reserve the right to adduce further proof, in the event that its motion should be denied. The district court commented with disfavor upon such an attempt, and we think the claimant could not, as matter of right. demand that the cause should be opened again. The settled practice of prize courts forbids the taking of further proofs under such circumstances, and, in the view we take of the cause, it would subserve no useful purpose to permit this to be done.
On the proofs before us the case is this: The Olinde Rodrigues was a merchant vessel of 1,675 tons, belonging to the Compagnie Générale Transatlantique, engaged in the West India trade, and receiving a subsidy from the French government for carrying its
mails on an itinerary prescribed by the postal authorities. Her regular course was from Havre to St. Thomas, San Juan, Puerto Plata, and some other ports, returning by the same ports to Havre. She sailed from Havre June 16th, and arrived at St. Thomas July 3d, and at San Juan the morning of July 4th. The proclamation of the blockade of San Juan was issued June 27th, while she was on the sea. The United States cruiser Yosemite was on duty in those waters, blockading the port of San Juan, and when her commander sighted the Olinde Rodrigues coming from the eastward towards the port he made chase, but,. before reaching her, she had turned in, and was under the protection of the shore batteries. He lay outside until the next morning,— the morning of July 5th,-when he intercepted the steamship as she was coming out, and sent an officer aboard, who made this entry in her log: "Warned off San Juan, July 5, 1898, by U. S. S. Yosemite. Commander Emory. John Burns, Ensign, U. S. Navy." The master of the Olinde Rodrigues, whose testimony was taken in preparatorio, testified that when he entered San Juan July 4th he had no knowledge that the port was blockaded, and that he first heard of it from the Yosemite on July 5th, when he was leaving San Juan. After the notification he continued his voyage on the specified itinerary, arriving at Gonaives, the last port outward. on July 12th. On his return voyage he stopped at the same ports, taking on freight, passengers, and mail for Havre. At Cape Haytien, on July 14th, he received a telegram from the agent of his company at San Juan, telling him to hasten his arrival there by one day in order to take on 50 first-class passengers, and he replied that the ship would not touch at San Juan, but would be at St. Thomas on the 17th. The purser testified that, on the receipt of the cable from the consignee at San Juan, he told the captain "that since we were advised of the blockade of Porto Rico by the warship it was absolutely necessary not to stop," and that "before me, the agent in Cape Haytlen, sent a cablegram, saying, 'Daim [the vessel] will not stop at San Juan, the blockade being notified.''
The ship's master further testified that on the outward voyage at each port he had warned the agent of the company and the postal department that he would not touch at Porto Rico, that he would not take passengers for that point, and that the letters would be returned to St. Thomas, and that, having re ceived his clearance papers at Puerto Plata at half past 5 o'clock on the evening of July 15th, he did not leave until 6 o'clock in the morning of July 16th, as he did not wish to find himself at night along the coast of Porto Rico.
The ship was a large and valuable one, belonging to a great steamship company of world-wide reputation. She was on her return voyage, laden with tobacco, sugar, coffee, and other products of that region. She
had no cargo, passengers, or mail for *San Juan. She had arrived off that port in broad daylight, intentionally, according to the captain. Her regular itinerary on her return to France would have taken her from Port au Platte to San Juan, and from San Juan to St. Thomas, and thence to Havre, but as San Juan was blockaded, and she had been warned off, and could not lawfully stop there, her route was from Port au Platte to St. Thomas, which led her directly by, and not many miles from, the port of San Juan.
The only possible motive which could be or is assigned for her to attempt to break the blockade is that the consignee at San Juan cabled the captain at Cape Haytien that he must stop at San Juan, and take 50 first-class passengers. At this time the fleet of Admiral Cervera had been destroyed, Santiago had fallen, and the long reign of Spain in the Antilles was drawing to an end. Doubtless the transportation of 50 first-class passengers would prove remunerative, especially as some of them might be Spanish officials, and Spanish archives and records and Spanish treasure might accompany them if they escaped on the ship. It is forcibly argued that these are reasonable inferences, and afforded a sufficient motive for the commission of the offense. But as, where the guilty intent is established, the lack of motive cannot in itself overthrow it, so the presence of motive is not in itself sufficient to supply the lack of evidence of intent. Now, in this case the captain not only testified that he answered the cable to the effect that he should not stop as San Juan, but the purser explicitly stated that the agent at Cape Haytien sent the telegram for the captain, specifically notifying the agent at San Juan that the ship would not stop there, the blockade having been notified. It is true that the cablegram was not produced, but this was not to be expected in taking the depositions in preparatorio, and particularly as it was not the captain's own cablegram, but that of the agent at Cape Haytien. There is nothing in the evidence to the contrary, and, under the liberality of the rules of evidence in the administration of the civil law, we must take this as we find it, and, as it stands. the argument that a temptation was held out is answered by the evidence that it was resisted.
"Such being the situation, and the evidence of the ship's officers being explicit that the vessel was on her way to St. Thomas, and had no intention of running into San Juan, the decree in her favor must be affirmed on the merits, unless the record elsewhere furnishes evidence sufficient to overcome the conclusion reasonably deducible from the facts above stated.
Among the papers delivered to the prize master were certain bills of health, five of them by consuls of France, namely: July 9th, from St. Marc, Haiti, giving the ship's destination as Havre, with intermediate ports; July 11th from Gonaives, Haiti, giving no destination; July 13th from Port au Prince;
July 14th from Cape Haytlen; July 15th from Puerto Plata,-all naming Havre as the destination; and three by consuls of Denmark, July 13th from Port au Prince, July 14th from Cape Haytien, and July 15th from Puerto Plata; all naming St. Thomas as the destination. When the captain testified August 2d, in answer to the standing interrogatories, he said nothing about any Spanish bills of health. The deposition was re-read to the captain August 3d, and on the next day, August 4th, he wrote to the prize commissioners desiring to correct it, saying: "I fear I have badly interpreted several questions. I was asked if I had destroyed any papers on board or passports. I replied, 'No.' The papersdocuments on board for our voyage had been delivered up proper and legal to the prize master. This is absolutely the truth, not including in the documents two Spanish bills of health,-one from Port au Prince and one from Cape Haytien,-which we found in opening our papers, although they had not been demanded. Not having any value for us, I said to the steward to destroy them on our arrival at Charleston, as we often do with papers that are useless to us. The regular expedition only counts from the last port, which was Puerto Plata, and I refused to take it from our agent for Porto Rico. I swear that at my examination I did not think of this, and it is only on my return from signing that the steward recalled it to me. I never sought to disguise the truth, since I wish to advise you of it as soon as possible."
On the 5th of August the purser answered the interrogatories, and testified that papers' were given him by the consignees of the steamer at Port au Prince in a box at the time of sailing, and he found in the box one manifest of freight in ballast, and it was the same thing at Cape Haytien. At Puerto Plata the agent of the company came on board on their arrival there, and "the captain told him that there was no Spanish clearance, there was no need of it, and it was not taken." The captain said to the agent "it was not necessary, because we are not going to San Juan, being notified of the blockade. When we arrive in a port we put up a placard of the date of departure and the time of sailing and the destination, and it was put up by my personal order from the captain that we sailed for St. Thomas directly, and it was fixed up in the night of the 15th of July. We were to start on the morning of the 16th, at 6 o'clock in the morning; the captain saying he did not want to fall into the hands of the American cruisers during the night. The night before our arrival in Charleston the doctor says to me, 'I have a bill of health, Spanish account, from Cape Haytien and Port au Prince,' and I told him I would speak to the captain and ask him what to do with these papers that I had found in assorting my papers,-these papers in the pigeon holes. I told the captain that morning, and he told me that we had better de
troy them, because we don't want them, that it is not our expedition, and that a true exposition is valuable only for the last port to the Spanish port."
On the 5th the captain was permitted to testify, in explanation, saying, among other things: "The reason that we did not give up the two bills of health is because they did not form a part of the clearance of our ship for our itinerary, and they were left in the pigeon holes where they were. It was at the time of our arrival at the quarantine at Charleston that the purser spoke to me of them, and I told him that they were good for nothing, and to tear them up. The captain wishes to add that he did not remember the instance the other day about the destruction of papers, that he has just told us about, and that he never had any intention to disguise anything or to deceive."
* Counsel for the government insist that the intention of the Olinde to run the blockade is necessarily to be inferred from the possession of these bills of health and their alleged concealment and destruction. Doubtless the spoliation of papers, and, though to a less degree, their concealment, is theoretically a serious offense, and authorizes the presumption of an intention to suppress incriminating evidence, though this is not an irrebuttable presumption.
In The Pizarro, 2 Wheat. 227, 241, the rule is thus stated by Mr. Justice Story: "Concealment, or even spoliation, of papers is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance and to justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and, if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile, if the cause labor under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a denial of further proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply."
It should be remembered that the first deposition of the captain was given in answer to standing Interrogatories, and not under an oral examination; that the statute (Rev. St. § 4622) forbade the witness "to see the interrogatories, documents, or papers, or to consult counsel, or with any persons interested, without special authority from the court"; that he was born and had always lived in France, and was apparently not conversant with our language; indeed, he protested-as “neither understanding nor speaking English" -"against all interpretation or translation contrary to my thought"; that, the deposition having been re-read to him the day after it
was taken, he detected its want of fullness, and immediately wrote the prize commissioners on the subject with a view to correction; and that it was after this, and not before, that the purser testified.
Transactions of this sort constitute in themselves no ground for condemnation, but are evidence, more or less convincing, of the existence of such ground; yet, taking the evidence in this case together, we are not prepared to hold that the explanation as to how these bills came to be received on board, neg lected when the papers were surrendered, and finally torn up, was not sufficient to obviate any decisive inference of objectionable intention.
The government further insisted that the Olinde Rodrigues refused to obey the signal from the New Orleans to heave to and stopinstantly, and turned only after she had fired, and that this conclusively established an intention to violate the blockade. The theory of the government that the French ship purposely held on so as to get under the protection of the batteries of San Juan.
The log of the Olinde Rodrigues states: "6:30, noticed the heights of San Juan. At 7:20, took the bearings of the fortress at 45 degrees, eight miles and one-half crosswise. Noticed, at 7:50, a man of war. At 8:10, she signaled J. W.' [Heave to and stop instantly']. I went towards it, and made arrangements in order to receive the whaleboat which is sent to us."
In a communication to the ambassador of France at Washington, written July 17th, and purporting to give a full account of the matter, the captain said that he "was some time before seeing her signal, on account of the distance and of the sun. Suspecting what she wanted, I hoisted the 'perceived' and stopped."
He testified that he turned his vessel to the warship before the gun was fired, which was at 8:12; but on this point the evidence is strongly to the contrary. We are inclined to think that some allowance should be made for imperfect recollection in the rapid passage of events. The Olinde Rodrigues was comparatively a slow sailer (10 to 12 knots), and if the captain stopped on seeing the signal, and turned towards the warship with reasonable promptness, a settled purpose to defy the signal ought not to be imputed, whether she started towards the New Orleans just before, just after, or just as the shot was fired.
The stress of the contention of the government is, however, that the Olinde Rodrigues was on a course directly into the port of San Juan at the time her progress was arrested. It is extremely difficult to be precise in such a matter, as her course to reach St. Thomas necessarily passed in face of San Juan. The captain attached to his explanatory affidavit a sketch, "showing the usual route and the actual route which he was taking at the time of the capture, with the position of the cap turing ship and his own ship," as follows:
But it appears from the entries of the second officer on the log of the Olinde Rodrigues that the ship was from 1 to 5 o'clock in the morning of July 17th on the course (as corrected) S. 69 E., and that from 6 to 8 o'clock the course was S. 73 E.
The captain testified that at the time of capture: "I had just passed the port of San Juan, about 7 or 8 miles eastward of the port, and about 9 miles from shore, about 9 miles from Morro. They judged the distance in passing as they do from all points."
The second officer said that "they were 9 miles from San Juan after having passed the port of San Juan and gone 4 miles east of it."
This testimony strikingly confirms Capt. Folger's candid expression of opinion that, though the master of the Olinde Rodrigues may have been going in and out of that port for years, he did not measure the distances, but "would run so far down the coast and order them to steer to a certain point to head in."
The commander of the New Orleans admitted "that south 69 is the proper course beforehand for the Culebra Passage" (the passage through which to reach St. Thomas), but contested that the French vessel was making that course.
Lieut. Rooney, the navigator of the New Orleans, laid down the positions upon a chart, which will be found on the opposite page. *The point C is 7% miles from Morro, bearing S. W., and 5 miles from point D, the intersection of a line drawn west with north and south line through Morro. D is 5% miles from Morro. The range of Morro guns was 61⁄2 miles, and the range of the shore batteries, 3 miles east of Morro, also 61⁄2 miles. According to this plat, the Olinde Rodrigues was slightly within the range of the Morro guns, but not within the range of the shore batteries. The New Orleans when she fired was close to the range of the shore batteries, and something over a mile outside of the extreme range of the Morro guns.
And it is urged that the conclusion is inevitable that the French ship intended to run into the port, and to draw the pursuing cruiser within the range of the Spanish guns. If her being in the neighborhood were not satisfactorily explained, is she persistently ignored the signal of the cruiser, and if her course was a course into the port of San Juan, and not a proper course to reach St. Thomas, then the conclusion may be admitted; but it is not denied that she was in the neighborhood in the discharge of her duty, and we have already seen that she may be consistently regarded as not having defied the signal.
On the part of the captors, the witnesses concurred that the Olinde Rodrigues' course was laid for the port of San Juan, while on her behalf this was denied, except so far as her course for St. Thomas took her near the blockaded port. In addition to the witnesses from the New Orleans, the telegraph operator
on the Morro testified that the Olinde Rodrigues was coming directly towards the Morro, but changed her course when the shot was fired.
A principal reason given by the witnesses for concluding that the Olinde Rodrigues was making for San Juan was that her masts, as seen from the deck of the New Orleans, were open, thus indicating that she was sailing south or towards the port of San Juan. It was admitted that this would not necessarily be so, unless the New Orleans was on the, same line east and west with the other vessel.: or, in other words, if the New Orleans were to the north of the Olinde Rodrigues, the latter's masts might appear open without necessarily indicating that she was sailing south, or towards the land. Lieut. Rooney did not see her until after she was captured. He is positive as to the approximate position of the New Orleans early in the morning before the Olinde Rodrigues was sighted, which had not occurred when he went below at 7:30, and he is positive as to the position of the New Orleans after the capture. He places the position of the New Orleans at 6:50, when the last bearing observation was taken, at 15 miles north of the coast and of the Morro. At 9 o'clock bearings were again taken, and she was about 7% miles from the Morro. Lieut. Rooney explained in his testimony the proper courses for a vessel sailing to St. Thomas, and stated that several courses might be properly steered, that one of them would be to pass about 12 miles north of the harbor of San Juan, and that there was nothing impracticable in a vessel reaching Culebra Point, with a view of going to St. Thomas, on a course of S. 69 E. from midnight to 5 o'clock, and a change at 5 o'clock to S. 73 E. He also testified that a vessel bound for San Juan on an ordinary commercial voyage would have been nearer the shore than where the Olinde Rodrigues was when she was captured, and that it was probable that if she intended to go to San Juan and avoid the New Orleans she would have hugged the shore, and not been out at
Some of the evidence, in short, had a tendency to show that the Olinde Rodrigues, when sailing on a proper course for St. Thomas, would be drawing to the south, and that the New Orleans was to the north of her, in which case, obviously, the nearer the vessels approached the more open would the masts of the Olinde Rodrigues appear. But the clear preponderance was that the captured ship was to the west of a north and south line drawn through Morro, and running nearly south just before or when the New Orleans fired.
It is impossible to deny that the testimony of Capt. Folger, the commander of the New Orleans, and of his officers, was extremelye strong and persuasive to establish that the Olinde Rodrigues when brought to was inten-* tionally heading for San Juan, and pursuing her course in such a manner as to draw the