The Pedro/Opinion of the Court
When, on the 22d day of April, this Spanish steamer sailed from Havana, the United States and Spain were at war. Congress had adopted a resolution April 20, demanding 'that the government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters,' and directing and empowering the President 'to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several states, to such extent as may be necessary to carry these resolutions into effect.' Time was given by the Executive until April 23 for Spain to signify compliance with the demand, but the Spanish government at once, on April 21, recognized the resolution as 'an evident declaration of war,' and diplomatic relations were broken off. Blockade had been proclaimed April 22, and put into effective operation at Havana, and, immediately thereupon, elsewhere, under the proclamation. And by the act of Congress of April 25 it was declared that war had existed since the 21st day of April.
Being an enemy's vessel, the Pedro was liable to capture as lawful prize, unless exempted therefrom by the terms of the proclamation of April 26. If that document in its bearing on this case could be regarded as ambiguous, a liberal construction might be indulged in; and it is urged that such liberality should in any event be accorded in view of the traditional policy of this government in respect of the exemption of private property at sea during war.
In The Phoenix, 1 Spinks, Eccl. & Adm. Rep. 306, 310, Spinks Prize Cases, 1, Dr. Lushington said in reference to the relaxation of belligerent rights by official action; 'If the words of the document are capable of two constructions, then I am clearly of opinion that the one most favorable to the belligerent party in whose favor the document is issued ought to be adopted; but the court must bear in mind that its province is not jus dare, but jus dicere; and I must again refer to the principle which I have often enunciated in this court, Verbis plane expressis ommino standum est.'
As applicable here, the meaning of the language used appears to us plain, and the proclamation not open to interpretation, since none is needed; nor are we justified in expanding executive action by construction because of the diplomatic attitude of this government in respect of the exemption of all property, not contraband, of citizens and subjects of nations at war with each other-an exemption which has not as yet been adopted into the law of nations.
It may be that the hardships incident to the contrary view will finally be found so destitute of corresponding advantage as to lead to the general acceptance of the doctrine so long unsuccessfully advocated by our statemen and publicists, in diminution of the evils of war; but we must apply the law as it is, and not the law as they have contended it should be.
The Pedro did not come within the fourth article of the proclamation, for she was in Havana, a port of the enemy, on April 21, and not 'in any port or place within the United States.' She sailed from Havana for Santiago, another port of the enemy, on April 22, was captured that day, and readched Key West on April 23 as a prize of war. The suggestion that she was thus brough within the exemption requires no remark.
Nor did the fifth article of the proclamation exempt the Pedro. That article provided that 'any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port, bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation.'
The Pedro remained in the harbor of Havana from the 17th until the 22d of April. We think it must be assumed that she was advised of the strained relations between the United States and Spain, and the imminency of hostilities. At all events, she did not leave Havana until the day after that designated by Congress and the President as the day on which war actually began, and which was also so regarded by the government of Spain. She had no cargo to be discharged at any port or place in the United States, but had cargo for Santiago and Cienfuegos, Cuban ports held by the Spanish forces; and she cleared, not for Pensacola, but for Santiago. She was not within the letter of the proclamation, nor within the reasons usually assigned for the exemption as pointed out in the opinion of the district judge, The Buena Ventura, 87 Fed. Rep. 927. She had not left a foreign port in ignorance of the perilous condition of affairs, and innocently taken a course which would subject her to our power by entering one of our ports. Neither was she bringing cargo to this country for the increase of our resources or the convenience of our citizens. On the contrary, she was sailing from one port to another port of the enemy, and all the cargo she had on board was destined for the enemy's ports. Not only this, but she took on cargo at Havana for Santiago, and was captured while thus actually trading from one enemy port to another enemy port, being herself an enemy vessel. In these circumstances the fact that the Pedro was under contract to ultimately proceed, after concluding her visits to the Spanish ports, to a port of the United States, to there load for Europe, did not bring her within the exemption of the proclamation.
The doctrine as to continuity of voyage, as laid down by this court in the cases cited by appellant, has no application.
In The Circassian, 2 Wall. 135, sub nom. Hunter v. United States, 17 L. ed. 796, it was ruled that the intent to violate a blockade, found as a fact, was not disproved by evidence of a purpose to call at a neutral port, not reached at time of capture, with ulterior destination to the blockaded port. In The Bermuda, 3 Wall. 514, sub nom. Haigh v. United States, 18 L. ed. 200, the actual destination to a belligerent port, whether ulterior or direct, was held to determine the character of the transaction as a whole; that transhipment could not change the effect of the pursuit of a common object by a common plan; and that, if the cargo was contraband, its condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so as to the vessel in the former case. And in The Springbok, 5 Wall. 1, sub nom. The Springbok v. United States, 18 L. ed. 480, it was held that an intention to tranship cargo at a neutral port did not save it when destined for a blockaded port; that as to cargo, both in law and intent, the voyage from London to the blockaded port was one voyage, and that the liability attached from the time of sailing, if captured during any part of that voyage. The solution of the question under consideration is not particularly aided by these and like decisions relating to blockade running and the transportation of contraband.
In The Joseph, 8 Cranch, 451, 3 L. ed. 621, the American brig Joseph sailed from Boston with a cargo on freight April 6, 1812, on a voyage to Liverpool and the north of Europe, and thence directly or indirectly to the United States. She discharged her cargo at Liverpool; then, under British license, she took a cargo from Hull to St. Petersburg, and there received news of the war between the United States and Great Britain. She afterwards sailed from St. Petersburg to London with a cargo consigned to merchants at that port, having delivered which, she sailed for the United States in ballast, and was captured not far from Boston Light, and sent into port for adjudication. Her trading with the enemy rendered her liable to condemnation as prize; but it was contended that the offensive voyage terminated at London, and that she was not taken in delicto. The court held, however, that whether her voyage were considered an entire one from the United States to England, thence to St. Petersburg, and thence to the United States, or as two distinct voyages, the homeward voyage being from St. Petersburg to the United States, with a deviation to London, she was captured during the same voyage in which the offense was committed, though after it was committed, and was still in delicto.
The Argo, 1 Spinks, Eccl. & Adm. Rep. 375, Spinks Prize Cases, 52, so much relied on by counsel, was an entirely different case from that presented by this record. The Argo was a vessel belonging to a Russian owner, sailing under Russian colors, and bound on a voyage from Havana to Cork. Her charter party bore date February 7 at Havana, but it was therein stipulated that she should load at Havana or Matanzas, demurrage not to be paid for forty-two running days. She took on sufficient ballast at Havana to keep her safe, and left there in February for Matanzas, where her cargo was begun to be put on board February 28, and was completed on March 30, and she cleared from that port April 2. March 29, 1854, the British order in council, printed in the margin  was issued. Dr. Lushington, adhering to the views he had expressed in The Phoenix, 1 Spinks, Eccl. & Adm. Rep. 306, 310, Spinks Prize Cases, 1, held that the order did not contemplate that the vessel should be laden at the date of sailing, and that the voyage was commenced at Havana to end in Great Britain, notwithstanding she took cargo at Matanzas.
It was argued that the Pedro was not liable to capture and condemnation because British subjects were the legal owners of some and the quitable owners of the rest of the stock of La Compania la Flecha, and because the vessel was insured against risks of war by British underwriters. But the Pedro was owned by a corporation incorporated under the laws of Spain; had a Spanish registry; was sailing under a Spanish flag and a Spanish license; and was officered and manned by Spaniards. Nothing is better settled than that she must, under such circumstances, be deemed to be a Spanish ship, and to be dealt with accordingly. Story, Prize Courts (Pratt's) ed.)' 60, 66, and cases cited; The Friendschaft, 4 Wheat. 105, 4 L. ed. 525; The Ariadne, 2 Wheat. 143, 4 L. ed. 205; The Cheshire, 3 Wall. 231, sub nom. The Cheshire v. United States, 18 L. ed. 175; Hall. Int. Law, § 169.
These stockholders were in no position to deny that, when they elected to take the benefit of Spanish navigation laws and the commercial profits to be derived through discriminations thereunder against ships of other nations, they also elected to rely on the protection furnished by the Spanish flag. Nor can the alleged intention to restore the Pedro to British registry, if war rendered the change desirable, be regarded. That had not been done when the Pedro was captured.
In conclusion, we are of opinion that the court below did not err in refusing to allow further proofs to be taken. The Spanish ownership was made out, and the facts that the stock of the corporation belonged legally or equitably to British subjects, or that the loss of the vessel would be eventually borne by British underwriters, were immaterial. Nor was there any doubt as to the movements of the Pedro and the trading in which she was actually engaged. The conclusion reached by the district court could not have been affected by the further proofs desired to be taken.
Mr. Justice White, with whom concur Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peckham, dissenting:
^1 'Her Majesty, being compelled to declare war against his Imperial Majesty the Emperor of all the Russias, and being desirous to lessen as much as possible the evils thereof, is pleased, by and with the advice of her Privy Council, to order, and it is hereby ordered, that Russian merchant vessels, in any ports or places within her Majesty's dominions, shall be allowed until the 10th day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and that such Russian merchant vessels, if met at sea by any of her Majesty's ships, shall be permitted to continue their voyage, if on examination of their papers it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, that nothing herein contained shall extend to or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian government.
'And it is hereby further ordered by her Majesty, by and with the advice of her Privy Council as aforesaid, that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port bound for any port or place in her Majesty's dominions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation, and that any such vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded.'