The Benito Estenger

after stating the case, delivered the opinion of. the court.

"If the alleged transfer was colorable merely, and Messa was the owner of the vessel at the time of capture, did the District Court err in condemning the Benito, Estenger as lawful prize as enemy property ?

“Enemy property” is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distinguished from the common law. The general rule is that in war the citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions, and that political status determines the question of enemy ownership. And by the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal consequences. Prize cases, 2 Black, 635 , 674; The Sally, 8 Cranch, 382 , 384; Jecker v. Montgomery, 18 How. 110 ; The Peterhoff, 5 Wall. 28 ; The Flying Scud, 6 Wall. 263 .

Messa was a Spanish subject, residing at Santiago, and for years engaged in business there. His vessel had a Spanish crew and Spanish officers, and he testified that he was on board of her as supercargo. She had the Spanish flag in her lockers, though she was flying the British flag at the moment, under a transfer,, which, as presently to be seen, was colorable and invalid. There was evidence tending to show that Messa sympathized with the Cuban insurgents, but no proof that he was himself a Cuban rebel or that he had renounced his allegiance to Spain. The vessel carried to Manzanillo on this voyage a cargo of provisions, consisting principally of eleven hundred barrels of flour.

Manzanillo was a city of several thousand inhabitants and the first important place on the south Cuban coast between

The instructions of the Navy Department to “ Blockading • Vessels and Cruisers,” in the late war, included among articles

In The Commercen, 1 Wheat. 382 , 388, Mr. Justice Story said: “ By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. . . . If destiued for the ordinary use of life in the enemy’s country, they are not, in general, contraband; but it is otherwise if destined for military use.. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband.”

In The Jonge Margaretha, 1 C. Rob. 189 , 193, Sir William Scott discussed this question, and, after referring to many instances, concluded: “And I take the modern established rule to be this, that generally they are not contraband, but may become so under circumstances arising out of the «particular situation of the war, or the condition of the parties engaged in it.”

But while alluding to this subject by way of illustration we do not feel called on to consider under what particular circumstances, generally speaking, provisions may be held contraband of war, It is enough that in dealing with a vessel adjudicated to have béen an enemy vessel, the fact of trade with the enemy, especially in supplies necessary for the enemy’s forces, is of well nigh decisive importance.

In reply it is suggested that this cargo was intended for the Cuban insurgents, and a quotation is made from- a letter of the consul to the effect that he had been “ told privately by. the president of the local junta, who has performed valuable services for me, that the proceeds of this cargo are to be forwarded to the Cuban government and troops through the Cuban agent at Manzanillo.” The suggestion derives no support from the record, and the facts remain that the provisions were delivered to the Spanish government, and that the trade to this Spanish stronghold constituted, under the laws of war, illicit intercourse with the enemy.

This brings us. to consider the contention that Messa had

Nevertheless, the consul agreed to write the Admiral, and did write him June 23, that Messa offered to give certain information that might be valuable, and that- he proposed to be off Cape Cruz on June 30, when he could be picked up there and taken to the Admiral if desired; but the consul said : “You quite understand that in dealing with those people, one is always more or less liable to imposition. I therefore make no recommendation of Messa to you.” There was nothing to show that the voyage was undertaken on the strength of this letter or that it in any way contributed to the capture, nor that the Admiral intended to avail himself of the suggestion in regard to Messa.

The claimant asserted and the consul denied that protection to the voyage was extended by the latter. But we do not go at length into this matter because we think that no engagement with the United States nor any particular service to the United States was made out in that connection, and so far as appears the vessel was captured in the ordinary course of cruising duty at a time and under circumstances when her liability was not to be denied. Moreover, a United States

In The Joseph, 8 Cranch, 451 , the vessel was condemned for trading with the enemy, and it was held that she was not excused by the necessity of obtaining funds to pay the expenses of the ship, nor by the opinion of an American minister expressed to the master, that by undertaking the voyage he would violate no law of the United States. The court said that these considerations, “if founded in truth, present a case of peculiar hardship, yet they afford.no legal excuse which it is competent to this court to admit as the basis of its decision.” This is equally true of the case before us, for even if the circumstances may have justified liberal treatment, that cannot be permitted to influence our. decision. It belongs to another department of the Government to extend such amelioration as appears to be demanded in particular instances.

Neither the case of Les Cinq Freres, 4 Lebau’s Nouveau Code des Prises, 63, nor that, of The Maria, 6 C. Rob. 201 , cited by counsel, is in point. In the former, the Committee of Public Safety in the year three of the French calendar of the Revolution decreed the condemnation of Les Cinq Freres as an enemy’s vessel, and of her cargo although belonging to Frenchmen, but further decreed restitution of the cargo or its

Thus far we have proceeded on the assumption that the transfer of tHe Benito Estenger was merely colorable, and this, if so, furnished in itself ground for condemnation. A brief examination of the evidence, in the light of well-settled principles, will show that the assumption is correct.

Messa’s story of the transfer was that the steamer had been owned by G-allego, Messa and Company, and then by himself; that he was compelled to sell in order to get money to live on; that he made the sale for $40,000, for which, or a large amount of which, credit was given on an indebtedness of Messa to Beattie and Company, and that he was employed by Beattie to go on the vessel as his representative and business manager.

It appeared that Beattie applied to the customs and shipping office in Jamaica for a British register, lodged with him the bill of sale, and made a declaration of ownership before him as registrar of shipping, which documents were filed on June 9 and 14 respectively, and were in conformity with the requirements of British law. The depositions of the ship broker and his employés put the price at nine thousand pounds, and showed their belief that the sale was bona fide, founded on what passed between Messa and Beattie. They did not know what arrangements were made for the payment of the price' or how or in what shape the purchase money was paid. The accountant stated that after the sale Beattie went on board and took possession of the vessel, and informed the officers in charge that he had become the owner, gave orders regarding her, and informed witness that he had given Messa the position as supercargo.

There was considerable confusion on'the point as to who was master of the vessel after the transfer. Perez testified that he was, and as master he interposed the claim on behalf of Beattie. He also swore that Mr. Beattie “informed him

Beattie testified that he was a member of the firm of Beat-tie and Company, composed of himself and his brothers, all British subjects, and interested in' lands, sugar estates, mines and forests in the district of Manzanillo; that he had resided there for some years, returning to his parents’ home in England for several months at a time; that he concluded the purchase of the Benito Estenger from Messa on June 9, 1898; that she left Jamaica on her last voyage on June 23, bound for Manzanillo, and chartered by Flouriache, .a Cuban merchant, carrying a cargo of food stuffs sent for the purpose of trade ; that he bought the vessel for nine thousand pounds; but he declined to state of what the payment or payments of the purchase money consisted, although saying that the sale was Iona fide.

The consul testified that claimant, in conversation, while insisting that the transfer was absolute, admitted that it was effected for the purpose of protecting the vessel.

In short, the statements as to price were conflicting; the reason assigned for the sale was to get money to live on, and yet apparently no money passed, and Messa said that he received credit for a large part of the consideration on indebtedness to claimant’s firm; claimant himself refused to describe the payment or payments; the Spanish master and crew remained in charge; Messa went on ithe voyage as supercargo; the vessel continued in trade, which, in this instance at least, appeared to be plainly trade with the enemy; and, finally, it is said by claimant’s counsel in his printed brief: “ It will not be contended upon this appeal that all the interest of Mr.

The attempt to break the force of this admission by the contention that the change of flag was justifiable as made to avoid capture by the Spanish is no more than a reiteration of the argument that Messa was a Cuban rebel, and his vessel a Cuban vessel, which, as has been seen, we have been unable to concur in. If the transfer were invalid, she belonged to a Spanish subject, she was engaged in an illegal venture, and her owner cannot plead his fear of,Spanish aggression.

Transfers of vessels flagrante bello were originally held invalid, but the rule has been modified, and is thus given by Mr. Hall, who, after stating that in France “ their sale is forbidden, and they are declared to be prize in all cases in which they have been transferred to neutrals after the buyers could have knowledge of the outbreak of the war;” says: “In England and the United States, on the contrary, the right to purchase vessels is in principle admitted, they being in themselves legitimate objects of trade as fully as any other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinized, and the transfer is not held to be good if it is subjected to any condition or even tacit understanding by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revocation, or a right to its restoratioh at the conclusion of the war.” International- Law, (4th ed.) 525. And to the same effect is Mr. Justice Story in his Notes on the Principles and Practice of Prize Courts, (Pratt’s ed.) 63; 2 Wheat. App. 30: “ In respect to the transfers of enemies’ ships during the war, it is certain that purchases of them by neutrals are not, in general, illegal; but such purchases are lia- ' ble to great suspicion; and if good proof be not given of their validity by a bill of sale and payment of a reasonable consideration, it will materially impair the validity of a neutral

The Sechs Geschwistern, 4 C. Rob. 100 , is cited, in which Sir "William'Scott said: “This is the case of a ship, asserted to have been purchased of the enemy; a liberty which this country has not denied to neutral merchants, though by the regulation of France, it. is entirely forbidden. The rule which this country has been content to apply is, that property so transferred, must be bona fide and absolutely transferred ; that there must be a sale divesting the enemy of all further interest in it; and that anything tending to continue his interest, vitiates a contract of this description altogether.”

In The Jemmy, 4 C. Rob. 31 , the same eminent jurist observed: “This case has been admitted to farther proof, owing entirely to the suppression óf a circumstance, which if the court had known, it would not have permitted farther proof to have been introduced; namely, that the ship has been left in the trade, and under the management of her former owner. Wherever that fact appears, the court will hold it to be conclusive, because, from the evidentia rei, the strongest presumption necessarily arises, that it is merely a covered and pretended transfer. The presumption is so strong, that scarcely any proof can avail against it. It is a' rule which the court finds itself under the absolute necessity of maintaining. If the enemy could be permitted to make a transfer of the ship, and yet retain the management of it, as a neutral vessel, it would be impossible for the court to protect itself against frauds.”

And in The Omnibus, 6 C. Rob. 71 , he said: “ The court' has often had occasion to observe, that where a ship, asserted to have been transferred, is continued under the former agency and in the former habits of trade, not all the swearing in the world will convince it that it is a genuine transaction.”

.The rule was stated by Judge Cadwalader of the Eastern

So in The Baltiea, Spinks Prize Cases, 264, several vessels had been sold by a father, an enemy, to. his son, a neutral, immediately before the war, and only paid for in part, the remainder to be paid out of the future earnings thereof, and the Baltiea, which was one of them, was condemned on the ground of a continuance of the enemy’s interest.

In The Boglasie, Spinks Prize Oases, 104, Dr. Lushington held the onus jprobandi to be upon the claimant, and made these observations: “ With regard to documents of a formal nature, though when well authenticated they are to be duly appreciated, it does not follow that they are always of the greatest weight, because we know, without attributing blame to the authorities under which they issue, they are instruments often procured with extraordinary facility. What the court especially desires is, that testimony which bears less the appearance of formality, — evidence natural to the transaction, but which often carries with it a proof of its own genuineness; the court looks for that correspondence and other evidence which naturally attends the transaction, accompanies it, or follows it, and which, when it bears upon the face of it the aspect of sincerity, will always receive its due weight.”

In The Ernst Heroic, Spinks Prize Cases, 98, the sale was to neutrals of Mecklenburg shortly before the breaking out of war, and it was ruled that the onus of giving satisfactory proof of the sale was on the claimant, and without it the court could not restore even though it was not called on to pronounce affirmatively that the transfer was fictitious and fraudulent. In that case the vessel was condemned partly because of absence of proof of payment, Dr. Lushington saying: “We

To the point that the burden of proof wás on the claimant see also The Jenny, 5 Wall. 183 ; The Amiable Isabella, 6 Wheat. 1 ; The Lilia, 2 Cliff. 169 ; Story’s Prize Courts, 26.

We think that .the requirements of the law of prize were not satisfied by the proofs in regard to this transfer, and on all the evidence are of opinion that the court below was right in the conclusion at which it arrived.

Decree affirmed.

Me. Justice Shieas, Me. Justice White and Me. Justice Peokham dissented.