1. A case in prize heard on further proofs, though the
transcript disclosed no order for such proofs, it having been plain
from both parties' having joined in taking them that either there
was such an order or that the proofs were taken by consent.
2. A
bona fide purchase for a commercial purpose by a
neutral, in his own home port, of a ship of war of a belligerent
that had fled to such port in order to escape from enemy vessels in
pursuit, but which was
bona fide dismantled prior to the
sale and afterwards fitted up for the merchant service, does not
pass a title above the right of capture by the other
belligerent.
Appeal from the District Court for Massachusetts, condemning as
prize the steamship
Georgia, captured during the late
rebellion. The case, as derived from the evidence of all kinds
taken in the proceedings, was thus:
The vessel had been built, as it appeared, in the years
1862-1863 at Greenock, on the Clyde, as a war vessel for the
Confederate government, and called the
Japan, or if not
thus built, certainly passed into the hands of that government
early in the spring of 1863. On the 2d of April of that year, under
the guise of a trial trip, she steamed to an obscure French port
near Cherbourg, where she was joined by a small steamer with
armaments and a crew from Liverpool. This armament and crew were
immediately transferred to the
Japan, upon which the
Confederate Flag was hoisted, under the orders of Captain Maury,
who had on board a full complement of officers. Her name was then
changed to the
Georgia, and she set out from port on a
cruise against the commerce of the United States. After being thus
employed for more than a year -- having in the meantime captured
and burnt many vessels belonging to citizens of the United States
-- she returned and entered the port of Liverpool on the 2d of May,
1864, a Confederate vessel of war, with all her armament and
complement of officers and crew on board. At the time she thus
entered the port of Liverpool, the United States vessels of war
Kearsarge, Niagara, and
Sacramento were cruising
off the British and
Page 74 U. S. 33
French coasts in search of her, the
Alabama, and other
vessels of the rebel confederation. It was resolved at Liverpool
that she should be sold. It appeared that Captain Bulloch, an agent
of the Confederacy at the port, at first thought of selling her at
private sale, together with her full armament, but failing in that,
she was advertised for public sale the latter part of May and the
first of June. A certain Edward Bates, a British subject and a
merchant of Liverpool dealing not unfrequently in vessels,
attracted by the advertisements, entered into treaty about her. The
broker concerned in making a sale of her, testified that "Bates was
desirous of knowing what would buy the ship, but he wished the
armament excluded, as he did not want that." According to
the statement of Bates himself, it had occurred to him that with
her armament on board, he might have difficulty in procuring a
registry at the customs. All the guns, armament, and stores of that
description were taken out at Birkenhead, her dock when she first
entered the port at Liverpool. The vessel had been originally
strongly built, her deck especially, and this was strengthened by
supports and stanchions. Though now dismantled, the deck remained
as it was, the traces of pivot guns originally there still
remaining. The adaptation of the vessel to her new service cost, it
seemed, about �3,000. How long she remained in port before
she was dismantled was not distinctly in proof, though probably but
a few weeks. The sale to Bates was perfected on the 11th June,
1864, by his payment of �15,000, and a bill of sale of the
vessel from Bulloch, the agent of the Confederacy. He afterwards
fitted her up for the merchant service and chartered her to the
government of Portugal for a voyage to Lisbon, and thence to the
Portuguese settlements on the African coast. The testimony failed
to show any complicity whatever of Bates with the Confederate
purposes. But he had a general knowledge of the
Georgia's
career and history, testifying in his examination
"that he knew from common report that she had been employed as a
Confederate cruiser, but thought that if the United States
government had any objection to the sale, they or their officers
would have given
Page 74 U. S. 34
some public intimation of it, as the sale was advertised in the
most public manner."
The American minister at the Court of London, Mr. Adams, who was
cognizant of the vessel's history from the beginning and had kept
himself informed of all her movements and changes of ownership,
having, on the 14th March, 1863, called the attention of Earl
Russell the British Secretary for Foreign Affairs, to the rule of
public law, affirmed by the courts of Great Britain, which rendered
invalid the sale of belligerent armed ships to neutrals in time of
war, and insisting on its observance during the war of the
rebellion, and having remonstrated, on the 9th of May, 1864,
against the use made by the
Georgia of her Majesty's port
of Liverpool, informed him on the 7th of June following, and just
before the completion of the transfer to Bates, that the federal
government declined
"to recognize the validity of the sale of this armed vessel,
heretofore engaged in carrying on war against the people of the
United States, in a neutral port, and claimed the right of seizing
it wherever it may be found on the high seas."
Simultaneously with this note, Mr. Adams addressed a circular to
the commanders of the different war vessels of the United States,
cruising on seas over which the
Georgia was likely to pass
in going to Lisbon, informing them that in his opinion "she might
be made lawful prize whenever and under whatever colors she should
be found." [
Footnote 1] Leaving
Liverpool on the 8th August, 1864, the vessel was accordingly
captured by the United States ship of war
Niagara off the
coast of Portugal on the 15th following, and sent into New Bedford,
Massachusetts, for condemnation. A claim was interposed by Bates,
who afterwards, on the 31st January, 1865, filed a test affidavit
averring that he was the sole owner of the vessel, was a merchant
in Liverpool and a large owner of vessels, that he had fitted out
the
Georgia at Liverpool for sea and chartered her to
Page 74 U. S. 35
the Portuguese government for a voyage to Lisbon, and thence to
the Portuguese settlements on the coast of Africa, and that while
on her voyage to Lisbon in a peaceable manner, she was captured, as
already stated.
The proofs in the case were not confined to the documentary
evidence found on board the prize and to the answers to the
standing interrogatories in
preparatorio, but the case was
heard before the court below without restriction and without any
objection in it upon additional depositions and testimony,
although, so far as the printed transcript of the record before the
court showed, no order for further proof had been made. The counsel
of both government and claimant, however, had joined in taking the
additional testimony, and among the witnesses was Bates himself,
whose deposition with its exhibits occupied fifty-six pages out of
the one hundred and forty-seven which made the transcript.
The court below condemned the vessel.
Page 74 U. S. 38
MR. JUSTICE NELSON delivered the opinion of the Court.
It is insisted by the learned counsel for the claimant that all
the depositions in the record except those in
preparatorio
should be stricken out, or disregarded by the court on the appeal
for the reason that it does not appear that any order had been
granted on behalf of either party to take further proofs. But the
obvious answer to the objection is that it comes too late. It
should have been made in the court below. As both parties have
taken further proofs very much at large, bearing upon the legality
of the capture, without objection, the inference is unavoidable
that there must have been an order for the same or, if not, that
the depositions were taken by mutual consent. They were taken on
interrogatories and cross-interrogatories, in which the counsel
of
Page 74 U. S. 39
both parties joined, and, among other witnesses examined, is the
claimant himself, whose deposition, with the papers accompanying
it, fill more than one-third of the record.
As respects the vessel, we are satisfied upon the proofs that
the claimant purchased the
Georgia without any purpose of
permitting her to be again armed and equipped for the Confederate
service, and for the purpose, as avowed at the time, of converting
her into a merchant vessel. He had, however, full knowledge of her
antecedent character, of her armament and equipment as a vessel of
war of the Confederate navy, and of her depredations on the
commerce of the United States, and that after having been thus
employed by the enemies of this government upwards of a year, she
had suddenly entered the port of Liverpool with all her armament
and complement of officers and crew on board. He was not only aware
of all this, but, according to his own statement, it had occurred
to him that this condition of the vessel might afford an objection
to her registry at the customs, and before he perfected the sale,
he sought and obtained information from some of the officials that
no objection would be interposed. He did not apply to the
government on the subject.
The claimant states "that he knew from common report she [the
Georgia] had been employed as a Confederate cruiser, but I
thought," he says,
"if the United States government had any objection to the sale,
they or their officers would have given some public intimation of
it, as the sale was advertised in the most public manner."
If, instead of applying to an officer of the customs for
information, the claimant had applied to his government, he would
have learned that as early as March 14, 1863, Mr. Adams, our
minister in England, had called the attention of Lord Russell the
Foreign Secretary, to the rule of public law, as administered by
the highest judicial authorities of his government, which forbid
the purchase of ships of war belonging to the enemy by neutrals in
time of war, and had insisted that the rule should be observed and
enforced in the war
Page 74 U. S. 40
then pending between this government and the insurgent states.
And also that he had addressed a remonstrance to the British
government on the 9th of May, but a few days after the Georgia had
entered the port of Liverpool, against her being permitted to
remain longer in that port than the period specified in her
Majesty's proclamation. His own government could have advised him
of the responsibilities he assumed in making the purchase. Mr.
Adams, after receiving information of the purchase by the claimant,
in accordance with his views of public law above stated,
communicated with the commanders of our vessels cruising in the
Channel and expressed to them the opinion that notwithstanding the
purchase, the
Georgia might be made lawful prize whenever
and under whatever colors she should be found sailing on the high
seas.
The principle here assumed by Mr. Adams as a correct one, was
first adjudged by Sir William Scott in the case of
The
Minerva [
Footnote 2] in
the year 1807. The headnote of the case is: "Purchase of a ship of
war from an enemy whilst lying in a neutral port, to which it had
fled for refuge, is invalid." It was stated in that case by counsel
for the claimant that it was a transaction which could not be shown
to fall under any principle that had led to condemnation in that
court or in the Court of Appeal. And Sir William Scott observed, in
delivering his opinion, that he was not aware of any case in his
court or in the Court of Appeal in which the legality of such a
purchase had been recognized. He admitted there had been cases of
merchant vessels driven into ports out of which they could not
escape, and there sold, in which, after much discussion and some
hesitation of opinion, the validity of the purchase had been
sustained. But
"whether the purchase of a vessel of this description, built for
war and employed as such and now rendered incapable of acting as a
ship of war by the arms of the other belligerent and driven into a
neutral port for shelter -- whether the purchase of such a ship can
be allowed which shall enable the enemy so far to secure himself
from the disadvantage into which he
Page 74 U. S. 41
has fallen, as to have the value at least restored to him by a
neutral purchaser,"
he said, "was a question on which he would wait for the
authority of the superior court before he would admit the validity
of the transfer." He denied that a vessel under these circumstances
could come fairly within the range of commercial speculation.
It has been insisted in the argument here by the counsel for the
claimant that there were facts and circumstances in the case of
The Minerva, which went strongly to show that the sale was
collusive, and that at the time of the capture she was on her way
back to the enemy's port. This may be admitted. But the decision
was placed mainly and distinctly upon the illegality of the
purchase. And such has been the understanding of the profession and
of text writers both in England and in this country, and as still
higher evidence of the rule in England it has since been recognized
as settled law by the judicial committee of her Majesty's privy
council. In the recent learned and most valuable commentaries of
Mr. Phillimore (now Sir Robert Phillimore, Judge of the High Court
of Admiralty of England), U.S. on international law, he observes,
after stating the principles that govern the sale of enemies' ships
during war to neutrals: "But the right of purchase by neutrals
extends only to merchant ships of enemies, for the purchase of
ships of war belonging to enemies is held invalid." And Mr. T.
Pemberton Leigh, in delivering judgment of the Judicial Committee
and Lords of the Privy Council in the case of
The Baltica,
observes:
"A neutral, while war is imminent, or after it has commenced, is
at liberty to purchase either goods or ships (not being ships of
war), from either belligerent, and the purchase is valid whether
the subject of it be lying in a neutral port or in an enemy's
port."
Mr. Justice Story lays down the same distinction in his "Notes
on the Principles and Practice of Prize Courts," [
Footnote 3] -- a work that has been selected
by the British government for the use of its naval officers as the
best code of instruction in the prize law. [
Footnote 4] The same principle is found
Page 74 U. S. 42
in Wildman on International Rights in Time of War, a valuable
English work published in 1850, and in a still more recent work,
Hosack on the Rights of British and Neutral Commerce, published in
London in 1854, this question is referred to in connection with
sales of several Russian ships of war, which it was said had been
sold in the ports of the Mediterranean to neutral purchasers, for
the supposed purpose of defeating the belligerent rights of her
enemies in the Crimean War, and he very naturally concludes, from
the case of
The Minerva, that no doubt could exist as to
what would be the decision in case of a seizure. [
Footnote 5] This work was published before
the judgment of the Privy Council in the case of
The
Baltica, which was a Russian vessel, sold
imminente
bello; being, however, a merchant ship, the purchase was
upheld; but, as we have seen from the opinion in that case, if it
had been a ship of war, it would have been condemned. [
Footnote 6]
It has been suggested that, admitting the rule of law as above
stated, the purchase should still be upheld, as the
Georgia, in her then condition, was not a vessel of war,
but had been dismantled and all guns and munitions of war removed;
that she was purchased as a merchant vessel, and fitted up,
bona fide for the merchant service. But the answer to the
suggestion is that if this change in the equipment in the neutral
port and in the contemplated employment in future of the vessel
could have the effect to take her out of the rule and justify the
purchase, it would always be in the power of the belligerent to
evade it and render futile the reasons on which it is founded. The
rule is founded on the propriety and justice of taking away from
the belligerent not only the power of rescuing his vessel from
pressure and impending peril of capture by escaping into a neutral
port, but also to take away the facility which would otherwise
exist, by a collusive or even actual sale, of again rejoining the
naval force of the enemy. The removed armament of a vessel built
for war can be readily replaced,
Page 74 U. S. 43
and so can every other change be made, or equipment furnished
for effective and immediate service. The
Georgia may be
instanced in part illustration of this truth. Her deck remained the
same, from which the pivot guns and others had been taken; it had
been built originally strong in order to sustain the war armament,
and further strengthened by uprights and stanchions beneath. The
claimant states that the alterations, repairs, and outfit of the
vessel for the merchant service cost some �3000. Probably an
equal sum would have again fitted her for the replacement of her
original armament as a man of war.
The distinction between the purchase of vessels of war from the
belligerent, in time of war, by neutrals, in a neutral port, and of
merchant vessels, is founded on reason and justice. It prevents the
abuse of the neutral by partiality towards either belligerent, when
the vessels of the one are under pressure from the vessels of the
others, and removes the temptation to collusive or even actual
sales under the cover of which they may find their way back again
into the service of the enemy.
That the
Georgia, in the present case, entered the port
of Liverpool to escape from the vessels of the United States in
pursuit is manifest. The steam frigates
Kearsarge,
Niagara, and
Sacramento were cruising off the coast
of France and in the British Channel in search of this vessel and
others that had become notorious for their depredations on American
commerce. It was but a few days after the purchase of the
Georgia by the claimant the
Alabama was captured
in the Channel, after a short and brilliant action, by the
Kearsarge. The
Georgia was watched from the time
she entered the port of Liverpool and was seized as soon as she
left it.
The question in this case cannot arise under the French code,
as, according to that law, sales even of merchant vessels to a
neutral
flagrante bello are forbidden. And it is
understood that the same rule prevails in Russia. Their law in this
respect differs from the established English and American
adjudications on this subject.
It may not be inappropriate to remark that Lord Russell
Page 74 U. S. 44
advised Mr. Adams on the day the
Georgia left Liverpool
under the charter party to the Portuguese government, August 8,
1864, her Majesty's government had given directions that, "In
future, no ship of war of either belligerent shall be allowed to be
brought into any of her Majesty's ports for the purpose of being
dismantled or sold."
Decree affirmed.
[
Footnote 1]
Correspondence between Mr. Adams and Earl Russell and Mr. Adams
and Mr. Seward, communicated with the President's messages to the
first and second sessions of the Thirty-eighth Congress.
[
Footnote 2]
6 Robinson 397.
[
Footnote 3]
Page 63, Pratt's London edition.
[
Footnote 4]
See 11th Moore's Privy Council 145.
[
Footnote 5]
Page 82, note.
[
Footnote 6]
See also Lawrence's Wheaton, note 182, p. 561, and
The Etta, before Field, United States District Judge of
New Jersey.
