On the 20th of April, 1898, a joint resolution of Congress was
approved by the President declaring that the people of Cuba are,
and of right ought to be, free and independent. On the same day,
the Minister of Spain at Washington demanded his passport, and the
diplomatic relations of Spain with the United States were
terminated. On the 22d of the same April, a blockade of a part of
the coast of Cuba was instituted. On the 23d of the same month, in
a proclamation of the Queen Regent of Spain, it was declared that a
state of war was existing between Spain and the United States. On
the 26th of the same month, the President issued a proclamation
declaring that a state of war existed between the United States and
Spain, the fourth and fifth articles of which proclamation were as
follows:
"4. Spanish merchant vessels in any ports or places within the
United States shall be allowed till May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places, and
such Spanish merchant vessels, if met at sea by any United States
ship, 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 apply to the Spanish
vessels having on board any officers in the military or naval
service of the enemy, or any coal (except such as may be necessary
for their voyage), or any other article prohibited or contraband of
war, or any dispatch of or to the Spanish government."
"5. 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, and any such vessel, if met at sea by any
United States ship, shall be permitted to continue her voyage
Page 175 U. S. 355
to any port not blockaded."
The
Pedro was built in England, sailed under the
British flag till 1887, and then was transferred to a Spanish
corporation, and sailed under the Spanish flag. Sailing from
Antwerp, she arrived at Havana with a cargo April 17, 1898. She
remained there five days, discharged her cargo and left for
Santiago April 22. At 6 o'clock on that evening, when about 15
miles east of the Morro, and 5 miles north of the Cuban coast, she
was captured by the
New York, of the blockading fleet,
sent to Key West, and there libelled and condemned.
Held,
(1) That the language of the proclamation was plain, and not
open to interpretation.
(2) That the
Pedro did not come within Article 4 of the
proclamation; nor within Article 5; nor within the reasons usually
assigned for exemption from capture.
(3) That it must be assumed that she was advised of the strained
relations between the United States and Spain.
(4) That, being owned by a Spanish corporation, having a Spanish
registry, and sailing under a Spanish flag and a Spanish license,
and being officered and manned by Spaniards, she must be deemed to
be a Spanish ship, although she was insured against risks of war by
British underwriters, that fact being immaterial.
This is an appeal from a decree of the District Court of the
United States for the Southern District of Florida condemning the
steamer
Pedro as lawful prize of war on a libel filed
April 23, 1898.
April 20, 1898, the President approved the following joint
resolution:
"First. That the people of the Island of Cuba are, and of right
ought to be, free and independent."
"Second. That it is the duty of the United States to demand, and
the government of the United States does hereby demand, 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."
"Third. That the President of the United States be, and he
hereby is, directed and empowered 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."
"Fourth. That the United States hereby disclaims any
disposition
Page 175 U. S. 356
or intention to exercise sovereignty, jurisdiction, or control
over said island except for the pacification thereof, and asserts
its determination, when that is accomplished, to leave the
government and control of the island to its people."
30 Stat. 738.
On the same day, the minister of Spain to the United States
requested and obtained his passports; the text of the resolution
was cabled to the minister of the United States at Madrid, and the
Secretary of States, by separate dispatch, directed him to
communicate the resolution to the government of Spain with the
formal demand of the United States therein made, and the
notification that, in the absence of a response by April 23, the
President would proceed without further notice to use the power and
authority enjoined and conferred upon him.
April 21, the minister of the United States at Madrid
acknowledged the receipt of the Secretary's dispatch that morning,
but saying that, before he had communicated it, he had been
notified by the minister of foreign affairs of Spain that
diplomatic relations were broken off between the two countries, and
that he had accordingly asked for his passports. The letter from
the minister of foreign affairs of Spain referred to was as
follows:
"In compliance with a painful duty, I have the honor to inform
Your Excellency that, the President, having approved a resolution
of both Chambers of the United States, which, in denying the
legitimate sovereignty of Spain and threatening an immediate armed
intervention in Cuba, is equivalent to an evident declaration of
war, the government of His Majesty has ordered its minister in
Washington to withdraw without loss of time from the North American
territory, with all the personnel of the legation. By this act, the
diplomatic relations which previously existed between the two
countries are broken off, all official communications between their
respective representatives ceasing, and I hasten to communicate
this to Your Excellency in order that, on your part, you may make
such dispositions as seem suitable. I beg Your Excellency to
acknowledge the receipt of this note at such time as you deem
Page 175 U. S. 357
proper, and I avail myself of this opportunity to reiterate to
you the assurances of my distinguished consideration."
The Secretary of the Navy at once gave instructions to the
commander in chief of 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;
also, if in your opinion your force warrants, the port of
Cienfuegos, on the south side of the island. . . . It is believed
that this blockade will cut off Havana almost entirely from
receiving supplies from the outside. . . . The department does not
wish the defenses of Havana to be bombarded or attacked by your
squadron."
April 22, Admiral Sampson, in command, instituted the blockade,
and on that day the President issued the following
proclamation:
"Whereas, by a joint resolution passed by the Congress and
approved April 20, 1898, and communicated to the government of
Spain, it was demanded that said government 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 the President
of the United States was directed and empowered 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 might be necessary to carry said
resolution into effect; and"
"Whereas, in carrying into effect said resolution, the President
of the United States deems it necessary to set on foot and maintain
a blockade of the north coast of Cuba, including all ports on said
coast between Cardenas and Bahia Honda and the port of Cienfuegos
on the south coast of Cuba:"
"Now therefore I, William McKinley, President of the United
States, in order to enforce the said resolution, do hereby declare
and proclaim that the United States of America have instituted, and
will maintain, a blockade of the north coast of Cuba, including
ports on said coast between Cardenas and Bahia Honda and the port
of Cienfuegos on the
Page 175 U. S. 358
south coast of Cuba aforesaid in pursuance of the laws of the
United States and the law of nations applicable to such cases. An
efficient force will be posted so as to prevent the entrance and
exit of vessels from the ports aforesaid. Any neutral vessel
approaching any of said ports or attempting to leave the same
without notice or knowledge of the establishment of such blockade
will be duly warned by the commander of the blockading forces, who
will endorse on her register the fact and the date of such warning,
where such endorsement was made, and if the same vessel shall again
attempt to enter any blockaded port, she will be captured and sent
to the nearest convenient port for such proceedings against her and
her cargo as prize as may be deemed advisable."
"Neutral vessels lying in any of said ports at the time of the
establishment of such blockade will be allowed thirty days to issue
therefrom."
30 Stat. 1769.
April 23. the Queen Regent of Spain issued a decree in which,
among other things, it was stated:
"Article I. The state of war existing between Spain and the
United States terminates the treaty of peace and friendship of the
27th October, 1795, the protocol of the 12th January, 1877, and all
other agreements, compacts, and conventions that have been in force
up to the present between the two countries."
"Article II. A term of five days from the date of the
publication of the present royal decree in the Madrid Gazette is
allowed to all United States ships anchored in Spanish ports,
during which they are at liberty to depart."
April 25, in response to a message from the President, Congress
passed the following act, which was thereupon duly and at once
approved:
"First. That war be, and the same is hereby, declared to exist,
and that war has existed since the twenty-first day of April, Anno
Domini eighteen hundred and ninety-eight, including said day,
between the United States of America and the Kingdom of Spain."
"Second. That the President of the United States be, and
Page 175 U. S. 359
he hereby is, directed and empowered 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 this act into effect."
30 Stat. 364.
April 26, the President issued a further proclamation, as
follows:
"Whereas, By an act of Congress, approved April 25, 1898, it is
declared that war exists, and that war has existed since the 21st
day of April, A.D. 1898, including said day, between the United
States of America and the Kingdom of Spain; and"
"Whereas, 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, it has already been announced
that the policy of this government will be not to resort to
privateering, but to adhere to the rules of the Declaration of
Paris:"
"Now therefore I, William McKinley, President of the United
States of America, by virtue of the power vested in me by the
Constitution and the laws, do hereby declare and proclaim:"
"1. The neutral flag covers enemy's goods, with the exception of
contraband of war."
"2. Neutral goods not contraband of war are not liable to
confiscation under the enemy's flag."
"3. Blockades, in order to be binding, must be effective."
"4. Spanish merchant vessels in any ports or places within the
United States shall be allowed till May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places, and
such Spanish merchant vessels, if met at sea, by any United States
ship, 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 apply to Spanish
vessels having on board any officer in the military or naval
service of the enemy, or any coal (except such as may be necessary
for the voyage), or any other article
Page 175 U. S. 360
prohibited or contraband of war, or any dispatch of or to the
Spanish government."
"5. 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, and any such vessel, if met at sea by any
United States ship, shall be permitted to continue her voyage to
any port not blockaded."
"6. The right of search is to be exercised with strict regard
for the rights of neutrals, and the voyages of mail steamers are
not to be interfered with except on the clearest grounds of
suspicion of a violation of law in respect of contraband or
blockade."
30 Stat. 1770.
The steamship
Pedro was built at Newcastle, England, in
1883, and, until 1887, sailed under British registry and the name
of the
Lilburn Tower. In the latter year, her name was
changed to the
Pedro, and she was transferred to La
Compania la Flecha, a Spanish corporation of Bilboa, Spain, and
registered at that port in its name, and, on October 4, 1887,
obtained a royal patent from the Crown of Spain, which was issued
to her as the property of the company. Thereafter she sailed under
the Spanish flag and was officered and manned by Spaniards, though
she was engaged in the transportation of cargo for hire as a
merchant vessel under the management of G. H. Fletcher &
Company of Liverpool. Her voyages began in Europe, where she took
cargo for Cuban ports, from which ports on discharge she proceeded
to ports of the United States, where she took cargo for a port of
discharge in Europe, the round trip occupying about three months.
Between March 20 and March 25, 1898, she took on board at Antwerp,
Belgium, some 2,000 tons of cargo for Havana, Santiago de Cuba, and
Cienfuegos, Cuba, of which 1,700 tons was rice, and the rest
hardware, empty bottles, paper, cement, and general cargo.
On March 18, 1898, she was chartered to the firm of Keyser &
Company, being described in the charter party as "now loading in
Antwerp for Cuba," to proceed to Pensacola, Florida,
Page 175 U. S. 361
or Ship Island, Mississippi, "with all convenient speed," to
loan a cargo of lumber for Rotterdam or Antwerp. The charter party
provided that,
"should the vessel not be in all respects ready for cargo at her
loading place on or before the 18th of May, 1898, charterers or
their agents have the option of cancelling this charter. If
required by charterers, lay days are not to commence at loading
port before the 5th of May, 1898."
Among the ship's papers was a bill of health issued by the
consul of the United States at Antwerp, March 24, which described
her as "engaged in Atlantic trade, and plies between Antwerp, Cuba,
and the United States." The bill of health concluded as
follows:
"I certify that the vessel has complied with the rules and
regulations made under the Act of February 15, 1893, and that the
vessel leaves this port bound for Pensacola, in the United States
of America, via Havana, Santiago, and Cienfuegos."
The steamer's freight list on the voyage to Cuban ports was
valued at about $7,000, stated to be barely sufficient to cover the
expenses of receiving, transporting, and delivering that cargo, and
the charter hire on the contemplated voyage from Pensacola or Ship
Island to Rotterdam would have been about $25,000.
The steamer arrived at Havana on April 17, and remained there
for five days, discharging about sixteen hundred tons of her cargo
and taking on some twenty tons of general merchandise for Santiago.
On April 22 at about half after three o'clock in the afternoon, she
left Havana for Santiago, and at six o'clock, when about fifteen
miles east of the Morro at the entrance of Havana harbor, and five
miles north of the Cuban coast, was captured by the cruiser
New
York, one of the blockading fleet, and sent to Key West in
charge of a prize crew. There she was libelled on April 23.
In due course, proofs
in preparatorio, which embraced
the ship's papers and the depositions of her master and first
officer, were taken. The master appeared in behalf of the owners
and made claim to the vessel, and moved the court for leave to take
further proofs, presenting with the motion his test affidavit. In
the affidavit it was alleged that, although a majority of the stock
of La Compania la Flecha was registered in
Page 175 U. S. 362
the names of Spanish subjects and only a minority in the names
of British subjects (members of the firm of G. H. Fletcher &
Company), one of the latter had possession of all the certificates
of stock, which, under the charter of the company, established the
ownership thereof, whereby he was the "sole beneficial owner of the
said steamer
Pedro." And further that the steamer was
transferred from the British to the Spanish registry solely for
commercial reasons,
"there being discriminations in favor of vessels carrying the
Spanish flag in respect of commerce with the colonies of Spain, in
consideration of dues paid by such steamers to the government of
Spain,"
but that it was the intention of the British stockholders to
withdraw her from the Spanish registry and from under the Spanish
flag and restore her to the British registry and the flag of Great
Britain whenever the trade might be disturbed. It was also alleged
that the steamer was insured
"against all perils and adventures, including the risks of war,
for her full value by underwriters of Lloyds, London, and by
insurance companies organized and existing under and pursuant to
the laws of Great Britain, and that, if the said vessel should be
condemned as prize by this Court, the loss will rest upon and be
borne by the said English underwriters."
The motion was denied, the cause heard on the pleadings and the
proofs taken
in preparatorio, and a decree of condemnation
entered. Subsequently the Secretary of the Navy elected to take the
vessel for the use of the United States pursuant to § 4624 of
the Revised Statutes. By order of court, she was duly appraised and
delivered to the Navy Department, and the amount of her appraised
value deposited with the Assistant Treasurer of the United States
at New York, subject to the order of the district court. From the
decree of condemnation, an appeal was prosecuted to this Court.
Page 175 U. S. 363
MR. CHIEF JUSTICE FULLER delivered the 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, 6, 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
Page 175 U. S. 364
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 statesmen 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 reached Key West on April 23
as a prize of war. The suggestion that she was thus brought 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,
Page 175 U. S. 365
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 F. 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, 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, 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
Page 175 U. S. 366
as to the vessel in the former case. And in
The
Springbok, 5 Wall. 1, 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, 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 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
Page 175 U. S. 367
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, supra, 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 equitable 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
Page 175 U. S. 368
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 on Prize Courts (Pratt's ed.) 60, 66, and cases
cited;
The
Friendschaft, 4 Wheat. 105;
The
Ariadne, 2 Wheat. 143;
The
Cheshire, 3 Wall. 231; 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.
Decree affirmed.
*
"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 tenth
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 dispatch 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."
MR. JUSTICE WHITE, with whom concur MR. JUSTICE BREWER, MR.
JUSTICE SHIRAS, and MR. JUSTICE PECKHAM, dissenting:
The
Pedro was a British-built ship, formerly owned and
registered in Great Britain. About nine years prior to the 22d day
of April, 1898, on which day the ship was captured, she was
transferred to a Spanish corporation, took a license from the
Spanish government, and thereafter sailed under the Spanish flag.
From the time when she thus became
Page 175 U. S. 369
a Spanish merchant vessel she followed a course of regular trade
by sailing from some port or ports in Europe to some port or ports
in the southern part of the United States, touching in so doing at
several places in the Island of Cuba. Voyages of this kind were
made for about nine years prior to the capture, the vessel usually
consuming about three months in both the outward and return voyage,
being thus able to make four trips each year between a European
port and a port in the United States. On these voyages, as
illustrated by the one on which she was engaged when captured, the
business secured for the Cuban ports was accessory to the main
object of the voyage, which was the procuring of a remunerative
cargo in the United States. Prior to the journey to the United
States upon which she was captured, the
Pedro had been
last at the port of New Orleans in January, 1898, at which time she
there paid the tonnage tax imposed by the act of Congress, the
payment then made being the fourth for the year beginning March 2,
1897, showing that, for the year prior to her capture, she had been
four times in a port of the United States and paid tonnage at such
ports.
The
Pedro, being in the port of Antwerp in March, 1898,
took cargo for Havana, Santiago, and Cienfuegos, in the Island of
Cuba. While the vessel was thus at Antwerp taking cargo for the
Cuban ports in question, she was, on the 18th of March, 1898,
through brokers at Liverpool, chartered by W. S. Keyser & Co.,
a firm of merchants established in Mobile and Pensacola, to proceed
to Pensacola or Ship Island in the United States, "with all
convenient speed," then to take cargo of lumber to be carried on
the return voyage to Rotterdam. The opening clause of the charter
described the vessel as now loading in Antwerp for Cuba, and the
contract contained the stipulations usual to such agreements. It
was provided that the charterers should not be obliged to commence
loading the ship at Pensacola or Ship Island before the 5th of May,
but that the loading should be completed in sixteen working days,
and that, if the vessel did not arrive at her point of destination
in the United States on or before the 18th day of May, 1898, the
charterers should have the
Page 175 U. S. 370
option of cancelling the contract. Although the vessel had a
capacity of about 5,000 tons measurement, the cargo which was taken
at Antwerp for the Cuban ports was only about 2,000 tons, less than
half her capacity, and the entire freight on such cargo did not
exceed $7,000, which was barely sufficient to meet the expense of
receiving, transporting, and delivering. On the other hand, the
freight on the lumber to be taken at either the port of Pensacola
or Ship Island at the rates fixed in the charter party, would have
amounted to about $25,000. The ship sailed on her voyage on the
25th of March, 1898. Before doing so, she took from the American
consul at the port of Antwerp a bill of health, as required by the
laws of the United States. In this bill of health the vessel was
described as one "engaged in Atlantic trade, and plies between
Antwerp, Cuba, and the United States," and the consul besides
certified that the
"vessel has complied with the rules and regulations made under
the act of February the 15th, 1893, and that the vessel leaves this
port bound for Pensacola in the United States of America, via
Havana, Santiago, and Cienfuegos."
She arrived at Havana on the 17th of April, 1898, and there
discharged about 1,600 tons of her cargo. On the 20th of April, she
received from the steamer
Alava, in the port of Havana,
about twenty tons of general cargo destined for Santiago which the
latter vessel had brought from European ports and desired to
tranship, the same never having been landed in Cuba. In the
afternoon of April the 22d, the steamer left Havana in continuance
of her voyage. On that morning, in execution of an order received
from the President, the American fleet left Key West for the Island
of Cuba, to establish and enforce a blockade of certain ports in
the Island of Cuba which had been proclaimed by the President. The
Pedro, some distance outside of the harbor of Havana, met
the American fleet, and was captured.
There is no just foundation, however, for the contention that,
in leaving the port of Havana, the vessel was violating the
blockade, for at the time of her sailing, the blockade had
Page 175 U. S. 371
not been established. Indeed, when the capture took place, the
fleet was on its way to Havana for the very purpose of initiating
the blockade ordered by the proclamation of the President. While it
is true that, subsequently to the 22d of April, Congress passed a
resolution declaring that war should be considered as having been
flagrant as of the date of the 21st of April, that it was not
conceived of known when the vessel sailed from Havana on the 22d
that a state of war existed, is also demonstrated by the proof,
which shows that, just prior to the sailing of the
Pedro
from the harbor of Havana, an American ship was allowed to depart
from that port, and that shortly after the
Pedro left, an
American steamer, which was likewise in the port of Havana, was
also permitted to leave.
Under this state of fact, it seems to me that the
Pedro
was within the exact requirements of the fifth article of the
proclamation of the President of the United States, and hence was
not subject to capture and condemnation. The article in question is
as follows:
"5. 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, and any such vessel, if met at sea by any
United States ship, shall be permitted to continue her voyage to
any port not blockaded."
The theory from which it is deduced that the
Pedro was
not a Spanish merchant vessel "which prior to April 21, 1898," had
"sailed from any foreign port, bound for any port or place in the
United States" is not by me understood. She assuredly sailed from
Antwerp prior to the 21st of April, 1898; she certainly was bound
for a port in the United States, since she was under a charter to
American citizens by the terms of which she was obliged "to proceed
with all convenient speed," so as to arrive at Pensacola or Ship
Island by May 5, 1898, where she was to take on an American cargo
to be carried to the port of Rotterdam. The vessel beyond question
took a bill of health from the American consul at Antwerp,
describing her as one engaged in Atlantic trade and plying
between
Page 175 U. S. 372
Europe and the United States, and the American consul certified
that she was leaving the port of Antwerp bound for Pensacola in the
United States, via Havana, Santiago, and Cienfuegos. Under these
conditions, she came, in my conception, not only within the letter
of the fifth article of the proclamation, but also within its plain
intent. The object of the proclamation was to relieve Spanish
merchant vessels coming in the regular course of a commercial
voyage to our ports from, without warning and without opportunity
of returning to a port of safety, being captured and condemned as
prize of war, in consequence of the breaking out of hostilities
subsequent to the inception of the voyage which the vessel was
engaged in prosecuting. In this respect, the proclamation was but a
practical execution of the enlightened policy by which civilized
countries, on the breaking out of hostilities, have relieved
merchant vessels coming to one or the other of the belligerent
countries from being subject to capture when, before the happening
of war, they had undertaken a lawful voyage in the prosecution of
purely commercial duties and relations. The scope of the
proclamation is shown by a consideration of the fourth and the
fifth clauses together, the one providing for the right of an
enemy's vessel found in a port of the United States at a time
covered by the clause to load cargo and depart without molestation,
even although bound to a port of the enemy, and the provision of
the fifth article which protects from seizure and condemnation the
merchant vessels of the enemy which had sailed bound for any port
of the United States prior to the period mentioned in the
proclamation.
But, it is said, when the
Pedro left Havana on the
afternoon of the 22d, she was not bound for Ship Island or
Pensacola in the United States, but was bound for Santiago;
therefore, she was on a voyage between two ports of the enemy, and
was not within the fifth article of the proclamation. This,
however, treats the voyage from Havana to Santiago as a new and
wholly independent one from that which commenced at Antwerp. It
disregards the fact that the vessel had sailed from Antwerp for
Pensacola or Ship Island via Havana and the other ports named; it
overlooks that the ship was under
Page 175 U. S. 373
express charter to American citizens when she left Antwerp to
proceed to Pensacola or Ship Island, and it further ignores the
certification by the consul already referred to. To treat the
voyage from Havana to Santiago as a new and independent one,
moreover, fails to give weight to the proof showing that the
touching at the Spanish ports in the Island of Cuba was merely
incidental to the main voyage from Antwerp to the United States. It
also does not apply the cumulative proof arising from the long and
regular course of business in which the ship had been engaged for
nine years prior to her capture in making regular trips from ports
in Europe to ports in the United States via designated ports in the
Island of Cuba. The decisions of this Court also, I think, refute
the contention that the ultimate termination of an outward voyage
may be disregarded in order to create a new voyage because of the
touching of a vessel at an intermediate port. The rule, consecrated
by the previous decisions of this Court, according to my
understanding, is that the real intention of a vessel as to her
outward-bound port is the determining factor in concluding whether,
in consequence of her voyage, she is or is not subject to capture
as lawful prize. In
The Joseph, 8
Cranch 451,
12 U. S. 455,
the vessel being a merchant vessel of the United States, with full
knowledge of the war (1812) between the United States and England,
carried a cargo from St. Petersburg to London. After discharging
the cargo at the latter point, she started in ballast for
New
York, her home port, and was captured and proceeded against
for the offense of trading with the enemy. The defense was that the
voyage had terminated on the arrival of the vessel in London, and
that from London to the United States she was on a new voyage, and
therefore not subject to capture and condemnation for an offense
committed on a previous voyage. The Court, through Mr. Justice
Washington, said (p.
12 U. S.
455):
"It is not denied that if she be taken during the same voyage in
which the offense was committed, though after it was committed, she
is considered as being still
in delicto, and subject to
confiscation; but it is contended that her voyage ended at London,
and that she was, on her return, embarked
Page 175 U. S. 374
on a new voyage. This position is directly contrary to the facts
in the case. The voyage was an entire one from the United States to
England, thence to the north of Europe, and thence directly or
indirectly to the United States. Even admit that the outward and
the homeward voyages could be separated, so as to render them two
distinct voyages, which is not conceded, still it cannot be denied
that the termini of the homeward voyage were St. Petersburg and the
United States. . . . It was, in short, a voyage from St. Petersburg
to the United States by way of London."
In
The
Circassian, 2 Wall. 135, a vessel sailing from one
neutral port directly to another port of the same character was
condemned because it was found that the real and ultimate
destination of the ship was a blockaded port in the United States.
In
The
Bermuda, 3 Wall. 551, a vessel with cargo from one
neutral port to another neutral port was condemned, as it was held
that the real object of the voyage was to transport contraband of
war by the vessel from one neutral port to the other, with the
object and purpose of continuing the transportation from the
neutral port, to which the vessel was consigned, into the United
States through the lines of a lawfully established blockade, the
court deciding that the real purpose and intent as to the ultimate
destination of the ship and its contraband cargo should control in
determining the legality of the capture. In speaking on the
subject, through Mr. Chief Justice Chase, the Court said (p.
70 U. S.
553):
"It makes no difference whether the destination to the rebel
port was ulterior or direct, nor could the question of destination
be affected by transhipment at Nassau, if transhipment was
intended, for that could not break the continuity of transportation
of the cargo. The interposition of a neutral port between neutral
departure and belligerent destination has always been a favorite
resort of contraband carriers and blockade-runners. But it never
avails them when the ultimate destination is ascertained. A
transportation from one point to another remains continuous so long
as intent remains unchanged, no matter what stoppages or
transhipment intervene. "
Page 175 U. S. 375
Applications of this doctrine are contained in the following
cases:
The Stephen
Hart, 3 Wall. 559;
The
Springbok, 5 Wall. 1;
The
Peterhoff, 5 Wall. 28. I do not understand that in
the opinion of the Court now announced, the cases just cited have
been overruled. They stand, therefore, and must be reconciled with
the decision made in this case. This being so, the doctrine, from
my point of view, may now be thus summed up. Where there is a
question as to the condemnation of a vessel as lawful prize, the
fact that, between her point of departure and her point of ultimate
destination, she has touched or unladen her cargo or a portion
thereof at an intermediary port will not be considered as breaking
the continuity of the voyage or as destroying the ulterior
destination, and therefore, if that destination be unlawful, the
voyage will be continuous from the point of departure to such
ulterior destination, and the vessel will consequently be
condemned. These rules are subject to the following exceptions:
where it becomes necessary to disregard the foregoing principles as
to ulterior destination, they will be given no weight, and the
voyage will be treated as having terminated at an intermediary
point, and consequently the vessel will be condemned because the
voyage was not continuous; the result being, in any event, to
subject the vessel to condemnation.
It is, however, urged, conceding that the ultimate destination
controls, and therefore that the stoppage at the intermediary port
was of no consequence, as under the charter party the
Pedro was bound to proceed to Pensacola, there to take on
a cargo, to be delivered at Rotterdam, even under the doctrine of
continuous voyage, her voyage must be treated as continuous from
Antwerp via Havana, etc., to Pensacola, thence to Rotterdam -- that
is to say, the continuous voyage, as manifested by the charter
party, was from Antwerp to Rotterdam via Pensacola; hence the ship
was never bound for the United States. But this obliterates the
manifest distinction between the outward and return voyage which is
apparent in the text of the fifth article of the proclamation.
Even conceding that from some points of view, the round voyage
-- that is, both the outward and return trip -- should be
Page 175 U. S. 376
considered as being continuous, such concession cannot in reason
be the test for determining whether under the proclamation the
vessel was bound for the United States. If it be held that both the
inward and the outward voyage are to be taken under the
proclamation as the criterion for determining whether a vessel was
bound for the United States, it would follow that the proclamation
had no relation whatever to any foreign ship, other than such a
ship bound to a port of the United States without the intention of
departing -- that is, with the intention of remaining in the port
of the United States. The proclamation, however, provides that the
vessels bound for the United States to which it refers
"shall be permitted to enter such port or place, and to
discharge her cargo, and afterwards forthwith to depart without
molestation, and any such vessel, if met at sea by any United
States ship, shall be permitted to continue her voyage to any port
not blockaded."
This plainly distinguishes between the voyage on which the
vessel is bound for the port of the United States and the voyage to
be undertaken by the vessel from the port of the United States to
which she is bound back to her homeward or some other neutral port.
To construe the proclamation so as to cause it to embrace only
vessels bound for the United States, without any purpose of
thereafter departing, would exclude from its operation the entire
class of vessels it was its purpose to protect from condemnation.
The error of such a consideration becomes to my mind plain,
especially when it is borne in mind that it is conceded on all
sides that the proclamation should receive a liberal construction
in favor of the public purpose which it embodies, and against the
liability of innocent and unwarned private property to capture and
condemnation.
It was strenuously argued at bar, and, as I understand the
opinion of the Court, it is now held, that the
Pedro was
not embraced within the fifth article of the proclamation because
she did not have cargo for the United States. The object of the
fifth clause of the proclamation, it was said, was to allow vessels
with cargo bound for the United States to be free from capture,
because it was the public policy of the United States, on the
outbreak of war, to encourage the bringing in
Page 175 U. S. 377
of cargo. The text of the proclamation does not, however,
support this contention. It declares that all vessels which "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. . .
." It does not say all vessels which have sailed with cargo, but
that all vessels shall be so permitted. True it is that the
proclamation also authorizes the vessel thus permitted to enter to
discharge her cargo. But the mere adding to the permission to enter
the right to discharge cargo cannot be taken as denying permission
to enter if there be no cargo to discharge. It cannot in any event
be said that the proclamation in plain terms confers the privilege
of safe entry only on vessels having cargo, and if it does not,
then construction is required, and the rule is that a liberal
construction must be applied in order to protect the innocent
private vessel from capture and condemnation. This supposed theory
of the desire to encourage the bringing in of cargo, upon which it
is assumed that the fifth article of the proclamation rests,
entirely discards, or at least ignores, the enlightened moral sense
which the proclamation embodies -- that is, the duty not to capture
without warning merchant vessels bound to our shores previous to
the outbreak of war -- and substitutes for it what to me seems the
sordid motive of a supposed gain to result from incoming cargo. In
other words, in its last analysis, the contention that the
proclamation contemplates only exempting a vessel from seizure
which has cargo for the United States really asserts that fair
dealing and justice are embodied in the proclamation only so far as
it was deemed that profit might be derived from being just, and no
further. Such an interpretation of the proclamation, however, is
refuted by its very terms, since its preamble declares that its
object was to mitigate the wrongs of war in accordance with the
practice pursued by enlightened and civilized nations. Aside from
these considerations, the supposed advantage to be derived from
allowing cargo to come in, when considered intrinsically, is
without force. Under this theory, two vessels would depart on the
same day from a foreign port, one bound to a port in the United
States, with
Page 175 U. S. 378
cargo, under a charter to foreign citizens to convey their goods
into this country, the second ship proceeding in ballast, under
charter to American citizens to proceed to the United States and
there take cargo. The argument is that the vessel chartered to the
foreigner and containing his goods in the execution of his contract
would be exempt from capture, while the vessel sailing in order to
carry out the contract made with and in favor of an American
citizen would be subject to capture. But this contention as to
cargo is not only in conflict with the text of the fifth article,
but is also at war with another provision of the proclamation --
that is, the fourth article. By that article, a Spanish vessel
found in a port of the United States, as therein stated, is not
only allowed to depart, but is also accorded the privilege of
taking on cargo and carrying it either to a neutral port or to a
port of the enemy, if not blockaded, up to a stated date, without
molestation. But the language conferring the privilege of loading
cargo contained in the fourth article, while really only
permissive, must be construed as imperative, if the permissive
privilege to discharge cargo in the fifth article be held an
imperative one, for no distinction can be drawn between the two.
The argument then comes to this -- that the public policy of the
proclamation deemed the coming in of cargo so important that it
provided for the capture of all vessels sailing for ports of the
United States prior to the commencement of war, if they did not
have cargo, and that the same public policy considered the taking
away of cargo from the United States so important that the
privilege given in the fourth article to Spanish merchant vessels
in our ports to depart could be availed of, provided only they took
cargo away from the United States. An interpretation which gives
rise to so unreasonable a contradiction seems to me to demonstrate
its own unsoundness.
But all the considerations which are relied on as justifying the
condemnation in this case seem to me to be fully answered by
authority. Both the fourth and fifth articles of the proclamation
of the President were almost word for word a reproduction of the
British order in council of March 29, 1854,
Page 175 U. S. 379
issued at the outbreak of the Crimean war. In order that the
identity of the two may be at once apparent they are both
reproduced in the margin.*
Under the order in council just alluded to, the
Argo, a
Russian vessel, and therefore a vessel of the enemy, sailed from
Havana for Matanzas, Cuba, there to take on cargo for
Page 175 U. S. 380
Great Britain. The departure of the vessel from Havana in
ballast was prior to the date fixed by the order in council. After
arriving at Matanzas, she there took on cargo, and sailed from that
port for Great Britain, subsequent to the date fixed in the order
in council. She was captured, and the question of her condemnation
was considered and decided by Dr. Lushington. It was held that the
vessel was protected by the order in council, and she was released.
Necessarily, under the facts stated, the ultimate end of the
outward voyage to Great Britain, and not the intermediary port at
which the Argo stopped, controlled -- otherwise she would have been
subject to condemnation. This follows as the order in terms only
protected Russian merchant vessels which had sailed prior to the
date of the order. As the sailing for Great Britain from Matanzas
was subsequent to the order, it necessarily results that the date
of sailing relied upon as protecting was the date of the sailing
from Havana, and not the subsequent departure from the intermediate
port. So also the case necessarily decided that the presence of
cargo was not essential to entitle the vessel to protection under
the order in council, since the vessel sailed in ballast from
Havana, and only departed from Matanzas, where the cargo was taken
on, after the date of the order, and therefore at a time and under
conditions which would not have protected her unless the antecedent
conditions existing at the time of the sailing had been considered
as determinative.
The language of Dr. Lushington in passing upon the case is to my
mind so persuasive of the issues which arise upon this record that
I quote from it. He said (Spinks Prize cases, p. 53)
"This vessel did sail from the Havannah prior to the date of the
order; she sailed from Mantanzas subsequently to the date of the
order. When she left the Havannah, she was in ballast, bound for
Cork, according to the charter party."
"It has been contended that this order in council contemplated
that the Russian vessel should have been laden at the date of the
order, but I find no words in the order that would justify my
putting so strict a construction upon it;
Page 175 U. S. 381
neither do I think that there are any words which impose the
necessity of not touching at or taking a cargo at some other port
than that where the voyage commenced. For instance, I apprehend
that a vessel might have taken in a part of her cargo from one
foreign port, having left that port prior to the 29th of March, and
taken in another part of the cargo at another foreign port
subsequently."
"The real meaning of the order in council, according to my view
of it, is that the vessel shall have sailed prior to the 29th of
March, on a voyage to end in Great Britain, and I am clearly of
opinion that this was one continuous voyage, the commencement of
which was at the Havannah, and that the sailing from the Havannah
prior to March the 29th is a substantial compliance with the terms
of the order."
Some stress was laid in argument, and seems to be given weight
in the opinion of the court to the language of Dr. Lushington
referring to the taking on of the cargo. But clearly, from the text
of his opinion, this language was used in relation to the argument
presented to him, which was that although a vessel sailing in
ballast, without cargo, prior to the date of the order in council,
was admittedly within its purview, the
Argo was not
covered by it because, subsequent to the proclamation, she took on
her cargo at an intermediate port. In meeting this argument, the
question of cargo was referred to, and the whole purport of the
order was summed up in language which I again quote. It was as
follows:
"The real meaning of the order of council, according to my view
of it, is that the vessel shall have sailed prior to the 29th of
March on a voyage to end in Great Britain, and I am clearly of
opinion that this was one continuous voyage, the commencement of
which was at the Havannah, and that the sailing from the Havannah
prior to March the 29th is a substantial compliance with the terms
of the order."
The sailing from Havana thus decided to have been sufficient, I
again remark, was in ballast and without cargo.
This construction of the order in council, I have said, should
be persuasive -- indeed, if it should not be held to have been
adopted and ratified by the reproduction in the proclamation
Page 175 U. S. 382
of the President of the very language of the order in council so
many years after that order had been thus construed by the British
admiralty tribunal.
Thinking that the condemnation of this ship under the
circumstances disclosed by the record will subject innocent private
property to condemnation without just cause, will deprive it of the
protection afforded by the proclamation of the President, which,
according to its terms, but carried out those commendable
principles of honesty and humanity enforced by all civilized
nations on the outbreak of war, I am constrained to dissent.
*
President's Proclamation of April 26, 1898 (30 U.S.
Statutes at Large, 1770).
"4. Spanish merchant vessels, in any ports or places within the
United States, shall be allowed till May 21, 1898, inclusive, for
loading their cargoes and departing from such ports or places, and
such Spanish merchant vessels, if met at sea by any United States
ship, 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 apply to Spanish
vessels having on board any officer in the military or naval
service of the enemy, or any coal (except such as may be necessary
for their voyage), or any other article prohibited or contraband of
war, or any dispatch of or to the Spanish government."
"5. 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, and any such vessel, if met at sea by
any United States ship, shall be permitted to continue her voyage
to any port not blockaded."
Order in Council, March 29, 1854 (Spinks, Prize cases,
Appendix, iii).
"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 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 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 dispatch of or to the Russian government."
"
* * * *"
"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."
