75 U.S. 677
THE PAQUETE HABANA. THE LOLA.
Nos. 395, 396.
Argued November 7, 8, 1899.
Decided January 8, 1900.
Mr. Justice Gray delivered
the opinion of the court:
These are two appeals from
decrees of the district court of the United States for the southern district of
Florida condemning two fishing vessels and their cargoes as prize of war.
Each vessel was a fishing
smack, running in and out of Havana, and regularly engaged in fishing on the
coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of
Cuban birth, living in the city of Havana; was commanded by a subject of Spain,
also residing in Havana; and her master and crew had no interest in the vessel,
but were entitled to shares, amounting in all to two thirds, of her catch, the
other third belonging to her owner. Her cargo consisted of fresh fish, caught
by her crew from the sea, put on board as they were caught, and kept and sold
alive. Until stopped by the blockading squadron she had no knowledge of the
existence of the war or of any blockade. She had no arms or ammunition on
board, and made on attempt to run the blockade after she knew of its existence,
nor any resistance at the time of the capture.
The Paquete Habana was a sloop, 43 feet long
on the keel, [175
U.S. 677, 679] and of 25 tons burden, and had a crew of three Cubans, including the
master, who had a fishing license from the Spanish government, and no other
commission or license. She left Havana March 25, 1898; sailed along the coast
of Cuba to Cape San Antonio, at the western end of the island, and there fished
for twenty-five days, lying between the reefs off the cape, within the
territorial waters of Spain; and then started back for Havana, with a cargo of
about 40 quintals of live fish. On April 25, 1898, about 2 miles off Mariel,
and 11 miles from Havana, she was captured by the United States gunboat
Castine.
The Lola was a schooner, 51 feet
long on the keel, and of 35 tons burden, and had a crew of six Cubans,
including the master, and no commission or license. She left Havana April 11,
1898, and proceeded to Campeachy sound, off Yucatan, fished there eight days,
and started back for Havana with a cargo of about 10,000 pounds of live fish.
On April 26, 1898, near Havana, she was stopped by the United States steamship
Cincinnati, and was warned not to go into Havana, but was told that she would
be allowed to land at Bahia Honda. She then changed her course, and putfor Bahia
Honda, but on the next morning, when near that port, was captured by the United
States steamship Dolphin.
Both the fishing vessels
were brought by their captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was there filed on April 27, 1898; a
claim was interposed by her master on behalf of himself and the other members
of the crew, and of her owner; evidence was taken, showing the facts above
stated; and on May 30, 1898, a final decree of condemnation and sale was
entered, 'the court not being satisfied that as a matter of law, without any
ordinance, treaty, or proclamation, fishing vessels of this class are exempt
from seizure.'
Each vessel was thereupon
sold by auction; the Paquete Habana for the sum of $490; and the Lola for the
sum of $800. There was no other evidence in the record of the value of either
vessel or of her cargo.
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We are then brought to the
consideration of the question whether, upon the facts appearing in these
records, the fishing smacks were subject to capture by the armed vessels
of the United States during the recent war with Spain.
By an ancient
usage among civilized nations, beginning centuries ago, and gradually ripening
into a rule of international law, coast fishing vessels, pursuing their
vocation of catching and bringing in fresh fish, have been recognized as
exempt, with their cargoes and crews, from capture as prize of war.
This doctrine, however, has
been earnestly contested at the bar; and no complete collection of the
instances illustrating it is to be found, so far as we are aware, in a single
published work although many are referred to and discussed by the writers on
international law, notable in 2 Ortolan, Regles Internationales et Diplomatie
de la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International
(5th ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon
Ennemi, 191-196; and in Hall, International Law (4th ed.) 148. It is therefore
worth the while to trace the history of the rule, from the earliest
accessible sources, through the increasing recognition of it, with occasional
setbacks, to what we may now justly consider as its final establishment in our
own country and generally throughout the civilized world.
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The doctrine which
exempts coast fishermen, with their vessels and cargoes, from capture as prize
of war, has been familiar to the United States from the time of the War of
Independence.
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Since the United States
became a nation, the only serious interruptions, so far as we are informed, of
the general recognition of the exemption of coast
fishing vessels from hostile capture, arose out of the mutual suspicions
and recriminations of England and France during the wars of the French
Revolution.
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Since the English orders in
council of 1806 and 1810, before quoted, in favor of fishing vessels employed
in catching and bringing to market fresh fish, no instance has been found in
which the exemption from capture of private coast fishing vessels honestly
pursuing their peaceful industry has been denied by England or by any other
nation. And the Empire of Japan ( the last state admitted into the rank of
civilized nations), by an ordinance promulgated at the beginning of its war
with China in August, 1894, established prize courts, and ordained that 'the
following enemy's vessels are exempt from detention,' including in the
exemption 'boats engaged in coast fisheries,' as well as 'ships engaged
exclusively on a voyage of scientific discovery, philanthrophy, or religious
mission.' Takahashi, International Law, 11, 178.
International law
is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their determination. For this purpose, where
there is no treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages
of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research,
and experience have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors concerning what the
law ought to be, but for trustworthy evidence of what the law really is. Hilton
v. Guyot, 159 U.S. 113, 163 , 164 S., 214, 215, 40 L. ed. 95, 108, 125, 126, 16
Sup. Ct. Rep. 139.
Wheaton places among the
principal sources international law 'text- writers of authority, showing
what is the approved usage of nations, or the general opinion respecting
their mutual conduct, with the definitions and modifications introduced by
general consent.' As to these he forcibly observes: 'Without wishing to
exaggerate the importance of these writers, or to substitute, in any case,
their authority for the principles of reason, it may be affirmed that they are
gen- [175 U.S. 677,
701] erally impartial in their judgment. They are witnesses of the
sentiments and usages of civilized nations, and the weight of their testimony
increases every time that their authority is invoked by statesmen, and every
year that passes without the rules laid down in their works being impugned by
the avowal of contrary principles.' Wheaton, International Law (8th ed.), 15.
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No international jurist of
the present day has a wider or more deserved reputation than Calvo, who,
though writing in French, is a citizen of the Argentine Republic, employed in
its diplomatic service abroad. In the fifth edition of his great work on
international law, published in 1896, he observes, in 2366, that the
international authority of decisions in particular cases by the prize courts of
France, of England, and of the United States is lessened by the fact that the
principles on which they are based are largely derived from the internal
legislation of each country; and yet the peculiar character of maritime wars,
with other considerations, gives to prize jurisprudence a force and importance
reaching beyond the limits of the country in which it has prevailed. He
therefore proposes here to group together a number of particular cases proper
to serve as precedents for the solution of grave questions of maritime law in
regard to the capture of private property as prize of war. Immediately, in
2367, he goes on to say: 'Notwithstanding the hardships to which maritime wars
subject private property, notwithstanding the extent of the recognized rights
of belligerents, there are generally exempted, from seizure and capture,
fishing vessels.' In the next section he adds: 'This exception is perfectly
justiciable,-Cette exception est parfaitement justiciable,'-that is to say,
belonging to judicial jurisdiction or cognizance.
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This review of
the precedents and authorities on the subject appears to us abundantly to
demonstrate that at the present day, by the general consent of the civilized
nations of the world, and independently of any express treaty or
other public act, it is an established rule of international law,
founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing
vessels, with their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in fresh
fish, are exempt from capture as prize of war.
The exemption, of course, does
not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when
military or naval operations create a necessity to which all private interests
must give way.
Nor has the
exemption been extended to ships or vessels employed on the high sea in taking
whales or seals or cod or other fish which are not brought fresh to market, but
are salted or otherwise cured and made a regular article of commerce.
This rule of
international law is one which prize courts administering the law of nations
are bound to take judicial notice of, and to give effect to, in the absence of
any treaty or other public act of their own government in relation to the
matter.
Calvo, in a passage already
quoted, distinctly affirms that the exemption of coast fishing vessels
from capture is perfectly justiciable, or, in other words, of judicial
jurisdiction or cognizance. Calvo, 2368. Nor are judicial precedents wanting in
support of the view that this exemption, or a somewhat analogous one, should be
recognized and declared by a prize court. [175 U.S. 677, 709] By the practice of all
civilized nations, vessels employed only for the purposes of discovery or
science are considered as exempt from the contingencies of war, and therefore
not subject to capture. It has been usual for the government sending out such
an expedition to give notice to other powers; but it is not essential. 1 Kent,
Com. 91, note; Halleck, chap. 20, 22; Calvo, 2376; Hall, 138.
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In Brown v. United States, 8
Cranch, 110, 3 L. ed. 504, there are expressions of Chief Justice Marshall which,
taken by themselves, might seem inconsistent with the position above
maintained, of the duty of a prize court to take judicial notice of a rule of
international law, established by the general usage of civilized nations, as to
the kind of property subject to capture. But the actual decision in that case,
and the leading reasons on which it was based, appear to us rather to confirm
our position. The principal question there was whether personal property of a
British subject, found on land in the United States at the beginning of the
last war with Great Britain, could lawfully be condemned as enemy's property,
on a libel filed by the attorney of the United States, without a positive act
of Congress. The conclusion of the court was 'that the power of confiscating
enemy property is in the legislature, and that the legislature has not yet
declared its will to confiscate property which was within our territory at the
declaration of war.' 8 Cranch, 129, 3 L. ed. 510, 511. In showing that the
declaration of war did not, of itself, vest the Executive with authority to
order such property to be confiscated, the Chief Justice relied on the modern
usages of nations, saying: 'The universal practice of forbearing to seize and
confiscate debts and credits, the principle universally received that the right
to them revives on the restoration of peace, would seem to prove that war is
not an absolute confiscation of this property, but simply confers the right of
confiscation,' and again: 'The modern rule, then, would seem to be that
tangible property [175
U.S. 677, 711] belonging to an enemy, and found in the country at the commencement of
war, ought not to be immediately confiscated; and in almost every commercial
treaty an article is inserted stipulating for the right to withdraw such
property.' 8 Cranch, 123, 125, 3 L. ed. 509. The decision that enemy property
on land, which by the modern usage of nations is not subject to capture as
prize of war, cannot be condemned by a prize court, even by direction of the
Executive, without express authority from Congress, appears to us to repel any
inference that coast fishing vessels, which are exempt by the general consent
of civilized nations from capture, and which no act of Congress or order of the
President has expressly authorized to be taken and confiscated, must be
condemned by a prize court, for want of a distinct exemption in a treaty or
other public act of the government.
To this subject in more than
one aspect are singularly applicable the words uttered by Mr. Justice Strong,
speaking for this court: 'Undoubtedly no single nation
can change the law of the sea. The law is of universal obligation and no
statute of one or two nations can create obligations for the world. Like all
the laws of nations, it rests upon the common consent of civilized communities.
It is of force, not because it was prescribed by any superior power, but
because it has been generally accepted as a rule of
conduct. Whatever may have been its origin, whether in the usages of
navigation, or in the ordinances of maritime states, or in both, it has become
the law of the sea only by the concurrent sanction of those nations who may be
said to constitute the commercial world. Many of the usages which prevail, and
which have the force of law, doubtless originated in the positive prescriptions
of some single state, which were at first of limited effect, but which, when
generally accepted, became of universal obligation.' 'This is not giving to the
statutes of any nation extraterritorial effect. It is not treating them as
general maritime laws; but it is recognition of the historical fact that by
common consent of mankind these rules have been acquiesced in as of general
obligation. Of that fact, we think, we may take judicial notice. Foreign
municipal laws [175
U.S. 677, 712] must indeed be proved as facts, but it is not so
with the law of nations.' The Scotia, 14 Wall. 170, 187, 188, sub nom. Sears v.
The Scotia, 20 L. ed. 822, 825, 826.
The position taken by the
United States during the recent war with Spain was quite in accord with the
rule of international law, now generally recognized by civilized nations, in
regard to coast fishing vessels.
On April 21, 1898, the
Secretary of the Navy gave instructions to Admiral Sampson, commanding the
North Atlantic Squadron, to 'immediately institute a blockade of the north
coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west.'
Bureau of Navigation Report of 1898, appx. 175. The blockade was
immediately instituted accordingly. On April 22 the President issued a
proclamation declaring that the United States had instituted and would maintain
that blockade, 'in pursuance of the laws of the United States, and the law
of nations applicable to such cases.' 30 Stat. at L. 1769. And by the act
of Congress of April 25, 1898, chap. 189, it was declared that the war between
the United States and Spain existed on that day, and had existed since and
including April 21, 30 Stat. at L. 364.
On April 26, 1898, the
President issued another proclamation which, after reciting the
existence of the war as declared by Congress, contained this further recital:
'It being desirable that such war should be conducted upon principles in
harmony with the present views of nations and sanctioned by their recent
practice.' This recital was followed by specific declarations of certain rules
for the conduct of the war by sea, making no mention of fishing vessels. 30
Stat. at L. 1770. But the proclamation clearly manifests the general policy of
the government to conduct the war in accordance with the principles of
international law sanctioned by the recent practice of nations.
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The Paquete Habana, as the record shows, was a
fishing sloop of 25 tons burden, sailing under the Spanish flag, running in and
out of Havana, and regularly engaged in fishing on the coast of Cuba. Her crew
consisted of but three men, including the master, and, according to a common
usage in coast fisheries, had no interest in the vessel, but were entitled to
two thirds of her catch, the other third belonging to her Spanish owner, who,
as well as the crew, resided in Havana. On her last voyage, she sailed from
Havana along the coast of Cuba, about 200 miles, and fished for twenty-five
days off the cape at the west end of the island, within the territorial waters
of Spain, and was going back to Havana, with her cargo of live fish, when she
was captured by one of the blockading squadron, on April 25, 1898. She had no
arms or ammunition on board; she had no knowledge of the blockade, or even of
the war, until she was stopped by a blockading vessel; she made no attempt to
run the blockade, and no resistance at the time of the capture; nor was there
any ev- [175 U.S.
677, 714] idence whatever of likelihood that she or her crew would aid the enemy.
In the case of the Lola,
the only differences in the facts were that she was a schooner of 35 tons
burden, and had a crew of six men, including the master; that after leaving
Havana, and proceeding some 200 miles along the coast of Cuba, she went on,
about 100 miles farther, to the coast of Yucatan, and there fished for eight
days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she
was captured, with her cargo of live fish, on April 27, 1898. These differences
afford no ground for distinguishing the two cases.
Each vessel was of a
moderate size, such as is not unusual in coast fishing smacks, and was
regularly engaged in fishing on the coast of Cuba. The crew of each were few in
number, had no interest in the vessel, and received, in return for their toil
and enterprise, two thirds of her catch, the other third going to her owner by
way of compensation for her use. Each vessel went out from Havana to her
fishing ground, and was captured when returning along the coast of Cuba. The
cargo of each consisted of fresh fish, caught by her crew from the sea, and
kept alive on board. Although one of the vessels extended her fishing trip
across the Yucatan channel and fished on the coast of Yucatan, we cannot
doubt that each was engaged in the coast fishery, and not in a commercial
adventure, within the rule of international law.
The two vessels and their
cargoes were condemned by the district court as prize of war; the vessels were
sold under its decrees; and it does not appear what became of the fresh fish of
which their cargoes consisted.
Upon the facts
proved in either case, it is the duty of this court, sitting as the highest
prize court of the United States, and administering the law of nations, to
declare and adjudge that the capture was unlawful and without probable cause;
and it is therefore, in each case,--
Ordered, that the
decree of the District Court be reversed, and the proceeds of the sale of the
vessel, together with the proceeds of any sale of her cargo, be restored to the
claimant, with damages and costs. [175 U.S. 677, 715]
Mr. Chief Justice Fuller,
with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting:
The district court held
these vessels and their cargoes liable because not 'satisfied that as a matter
of law, without any ordinance, treaty, or proclamation, fishing vessels of this
class are exempt from seizure.'
This court holds otherwise,
not because such exemption is to be found in any treaty, legislation,
proclamation, or instruction granting it, but on the ground that the vessels
were exempt by reason of an established rule of international law applicable to
them, which it is the duty of the court to enforce.
I am unable to conclude that
there is any such established international rule, or that this court can
properly revise action which must be treated as having been taken in the
ordinary exercise of discretion in the conduct of war.