fBlll CARONDELET.
799
Ta:E CARONDELET.
UKITED STATES tI. THE CARONDELET
et ale
(Di8triet Oou't't, S. D. Nf/I{} York. Februarv 15, 1889.)
The steamer C., char,tered by the consul of the Dominican government to carry a cargo of arms to Samana, in the Dominican republic, deliverable, as per bill of lading, to the representatives of that government: was seized, with the cargo. for an alleged violation of the neutrnlity act, (section 5283, Re'9'. St.,) for being fitted out and armed to aid Hippolyte, who headed one of the warring factions in Hayti, against Legitime, the head of the opposing faction. Held, upon proof that the C. was designed only to 'transport the cargo to Samana; and that the arms were there deliverable to the Dominican govern· , ment, that both and cargo must :bellischarA"ed, the transaction being a , legitimate, commercialone.. ll. SAlI:E-AlDnirG WARnI:NG FACTIONS. ' It having been declared by the president of this country that Hayti is in a state of anarchy, and that Legitime. and Hippolyte. with their followers, were regarded as warring factions, neither of whom constituted any responsible government, semble, that neither neutral obligations, nor our statute, apply to such a case,'
1.
NEUTRALITY LAWS-CARRJAGEOF ARMS-COlOrEROIAL TRANSAOTION.
In Admiralty. Seizure for breach of neutrality laws. This libel was filed on the 6th of February, 1889, to obtain a judgment of CClndemnation and forfeiture of the steamer Carondelet and her cargo, for alleged violation of section 5283, Rev. St. U. S. The libel charged,thatthe steamer was loaded with cannon, arms, and ammtmition, and, other material of war, "with intent to enter into the service of a certain district and, people of Hayti, to"wit, certain rebels in insurrection against the organized and recognized government of the republic of Hayti, and to commit hostilities against the subjects, citizens, and property of that republic;" and that she was "fitted out and armed within this district with that intent." The steamer was seized by the marshal on the A.nswers were filed ohthe 8th of February, denying the alleged grounds of forfeiture, the New York & Texas Steam-Ship Company. by;Mallory & Co., their agents, claiming the steamer; and Leoncio Julia, as consul of the Dominican republic, claiming the cargo. The vessel was a freight steamer only, unfitted for warlike purposes. Before seizure she had cleared for Samana, a port of the Dominican republic. She had been- chartered by MI'. JUlia, as Gonsul, to transport her cargo of arms,to be delivered to the Dominican government at Samana; and bills ofladihg were delivered by the steamer, making cargo delivera.. ble there to the representatives of the' Dominican government. For the libelant it was claimed that the arms were designed to aid the Hippolyte faction in Hayti, as against Legititrie;and that they were not intended to go to Samana. By cOllsentthe trial was commenced on the 9th,· but on that day ,counsel for the governmerit not being in readiness, an adjournment was bad uritil'the 12th,and the cause was heard on that and' the- following day.' .
800 Stephen A. Walker, U. S. Atty., and Abram J. AOS8, Asst. U. S. Atty. McFarland. Boardman PlaU,for the claimants. BROWN, J., (after 8tating the faci$ as abovfJ.) Section 5283 of the Revised Statutes, under which the Carondelet and her cargo were seized, provides for the forfeiture of any vessel that, "within the limits of the United States," is "fitted out and armed," or attempted to be fitted out and armed, with the "intent that such vessel shall be employed in the service of any prince or state, or of nny colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace." The libel charges the fitting out and arming of this vessel with the intent to be employed "in the service of a district and people of Hayti, to-wit, of certain rebels, to commit hostilities against the subjects, citizens, and property of the recognized governmment of the republic of Hayti, with which the United States are at peace." A doubt arises at the threshold whether the statute above cited has any application to a mere struggle between contending factions, neither of which is recognized by our government. The case sought to be proved by the libelants is that the vessel and arms were designed to aid Hippolyte as against Legitime in the struggle for supremacy now going on in Hayti. It is not a case even of an insurrection against a recognized power. In August, 1888, the existing government in Hayti was overthrown, the president being deposed and banished. As stated in ident Cleveland's message of December 3, 1888, the country has since then been in a state of anarchy, in which there is a struggle of warring factions, neither of which is recognized by the United States as constituting any responsible government. Section 5283 is designed, in general, to secure our neutrality between foreign belligerent powers. But there 'can be no obligation of neutrality except towards some recognized state or power, dejure or defacto. Ntlutrality presupposes at leastiwo belligerents; and, as respects any recognition of belligerency, i. e., of belligerent rights, the judiciary must follow the executive. To fall within the statute, the vessel must. be intended to be employed in the service of one foreign prince, state, colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of another, with which the United States "are at United States can hardly be said to be "at peace," in the sense of the statute, with a faction which they are unwilling to recognize as a government; nor could the cruising, or committing of hostilities, against such a mere faction well be said to be cOmmitting hostilities' against the "subjects, citizens, or property or a district or people," within the meaning of the statute. So, on the other hand, -a vessel, in entering the service of the opposite faction of Hippolyte, could hardly be said to enter the service of a foreign" prince or state, or -of a colony, district, or people," unless our goYarnment had recognized Hippolyte's faction as at least constituting a belligerent, which it does not appear to have done. In the view of the president's message, neither
THE CARONDELET.
801
the party of Legitime that of IJippolyte.copstitQtes the "Republic of Hayti," or represents the government, or a district, or the people of Hayti. The words "colony, district, or people" in section 5283, come from the act of April 10, 1818. by,which those words were added as an amendIllent to the act of June 5, 1794. Section 3 of the act of 1794, like the first rule of the Geneva arbitration under the treaty of 'Washington of 1871, mentions only a state or prince. 3 Whart. Intern. Dig. § 402a. The English foreign enlistment act is much broader. The intent of the amendment of 1818 doubtless was to extend the statute to cases of colonies or districts engage,d in revolutionary struggles, many of which were then in progress between Spain and her dependencies. The struggle in Hayti is not for independence, or separation, nor between different districts or people; but between warring "factions" only, so far as our gov- . ernment h!ts reco 6nized them. The statute is a highly criminal and penal one; it is not to be enlarged by construction beyond the fair import of its terms. I do not find it necessary, however, to decide upon this point, as the libel ,must be dismissed for other reasons. The Carondelet was not intended "to cruise or commit hostilities" against anyone. She was neither fitted, nor adapted, nor intended for such uses. She was chartered by Mr. Julia, the consul of the Dominican government at this port, to carry a cargo of arms and munitions of war to Samana, a Dominican port, for delivery there to the Dominican government. Her charter is in evidence, as well as her bills of lading, which state that the arms are to be so delivered. She has cleared for .Bamana in the ordinary way. Mr. Julia has testified that the cargo was bonght by him for his government,. and by its orders. One of the firm of Hartley & Graham, by whom a considerable part of the cargo was supplied, testifies to the same effect; and also that his firm has a running account with the Dominican government, and has been accustomed to sell them arms largely for the past 15 years. These ar(;l marks of a simple and legitimate commercial transaction. The consul, as a commercial officer, was an appropriate agent for such a transaction by the Dominican government. . On the other hand, it is said that this is but a false pretense, and a pretext for an indirect mode of aiding Hippolyte against Legitime; that the arms ,are to be Pllid for by Hippolyte's agents; that either on the high seas or at Samana the arms are to be transferred to the steamer Madrid, ,now fitting up for warlike uses at this port, and nearly ready to sail; that the Madrid, thus armed, is to join Hippolyte's forces; and that the Carondelet is a mere tender to this enterprise. Beyond the fact that the Madrid is now undergoing repair and strength. eningfor naval uses, the evidence wholly fails to sustain these charges. There is nothing in the evidence that goes beyond mere suspicion, or the possibility that the arms after arrival at Samana may be employed in aid of Hippolyte. If so, it can only be through the direct acts of the Dominican government. Mere suspicion or possibility would be,in8Qfficient" even if the consignee were not the Dominican government itv.37F.no.14-51
FEDERAL REroR'rER,
vol. 37.
self. . La:wrul traffic canrtot'justly be interfered with suspicion; much less, vessels and· cargoes condemned. Commercialiransactions by neutral nations in contl.!lband of war, according to the long-established doctrine of this be remembered, are as legitimate arid 'free as traffic in any other description of merchandise, subject only to the riskof capture by the belligerents. A vessel, by merely engaging in bona fide contraband trade, does not violate the statute, or our neutral obligations, even if the trade he in armed vessels. The Bermuda, 3 Wall. 514, 551-555; The Sattti8sima Trinidad, 7 Wheat. 283, 340; The Florida,· 4' Ben. 452; U. S. 'v. 'l'wo Hundred and Fourteen Bo:r,es Arrn8, 20 Fed. Rep. 54; S·Whart. Intern: Dig. 509-517; Ex parte (Jhava88e, 4 De Gex, J. & S. 655. If there were reasonable· grounds to suspect that the Madrid is not signed to gti t(}Samana, to be delivered there in completion of a contract of sale to the Dominican republic; but to go direct to Hippolyte, taking her armament, by a preconcerted·· arrangement, from the Carondelet· on the high seas; in that case, whether the Carondelet could 'or could not be . refused a clearance under section 5290, the Madrid, according to the cases of The MetearrmdThe MaryN. Htlgan, 18 Fed. Rep. 538, might be seized and forfeited under sectioh528S; but not the Carondelet; for the latter, upon the facts assumed,would not be designed "to ciruisebr commit hostilities"against anyone, but only to complete the arming of the Madrid, which is not a ground for forfeiting the Carondelet. She might be captured by the belligerents,but would not come within bur statute. There is no evidence, however, of any such design, even as respects the Ma.drid; According to the evidence, she is to be delivered to the Dominican government at Samana, on- payment of the unpaid balance of the which is more than half of the cost, including the cost of the alterations. .. The suitagaitist the Carondelet, therefore, necessarily fails; and, that failing; thieforfeiture of the arms falls also; since the statute forfeits the latter onl,Y'when the vessel for which they are procured is found liable to forfeiture. When it appears that the transaction is an official one in behalf of ari iridependent govermnent, with which our own government is at peace, and that governrilent is the bona fide consignee at one of its own ports, it must require a "ery clear case to justify arrest and 'condemnation, even if it could be 'lawfully done at all, whatever the ulterior purpose of that government, might be. It is no part of the'design of Our statute to enforce neutrality upon other states. There is no need of any statute of neutrality for such a purpOse, nor appropriateness in such an applicationof it, since every recognized power is presumed to be responsible for what it does, and for what it permits to be done within its own jurisdiction. When tOe arming is on the high seas, through another vessel, proof that (both were dispatched from our ports as parts ofa concerted scheme matle here, is justly held proof of "an attempt, within the limits of our jurisdiction, to fit out and arm" the vessel with intent to and hence within the statute. That construction is commit ... .
-, ; 'HARDMAN V.BRETT. '
803
necessary to ltvoideasy and' .maIiifest·evasionsofneutritlity'; for arm, ing on .tbehigh:seas iii not an act within the limits of any otherjurisdiction. No other sta.te has any powerl control, or responsibility:. in the matter,; butour own ports become in such cases the real base Of hostile operations. It is otherwise when the arming is designed to be in a foreign port,. and under.the observation, the control, and the responsibility of another government. That is not an attempt here to fit out and ami the vessel, but only' an attempt to send her to a foreign port for arming. The statute does notinclude that, and ought not to be extended to such a case. There is no precedent, and no sufficient reason for it. Still more should a bona fide delivery to an independent government be deemed to end the adventure, so far as our merchants are concerned. Subsequent acts, under the authority or permission of that government, are too remote for the operation of our statute. And where such a bonafide delivery alone is the design of the owner and sbipper, the adventure is commercial only, and there is no violation ()f section 5283, whether the articles are contraband, or are vessels armed or unarmed. The libel is dismissed.·
HARDMAN
et 01.
'V. BRETT.
«h"'I'cuit(Jourt, 8. D. New York.
February 6, 1889.)
CARRlltRB-OP GOOD8-L1ABILl'rY FOR Loss-BET-OPF.
A common who has brought suit. against a wrong-doer to recover for the destruction Qf goods which had been intrusted to him for transportation. and has recovered for their amount, is liable to the owner of the A'oods for the sum recovered. and cannot recoup against the claim the expenses incurred in the litigation with the wrong-doer.
S.
MARINE INSURANCE-SUBROGATION.
Plaintiffs insured a cargo of lumber on a schooner. of which defendant was the managing owner. By a collision with a steam-ship, in which a court of the libel of defendant. decided both vessels in fault, the cargo was lost. The court also held that both parties were liable for the full value of the cargo. and that the steam-ship was liable to the schooner for one-half the damage done to the latter. These sums were paid, under order of court, to defendant's proctor. who, after deducting his fees, paid the residue to defendant. Held. that plaintiffs, who had succeeded to the rights of the owner, could recover the full amount paid to the proctor. without deduction of proe' tor's fees and expenses of litigation.
At Law. , Action by Hardman and others to recover of one Brett a sum of money received by him as the value of a cargo of lumber lost at sea, which. plaintiffs had underwritten. Trial by the court without a jury. J. Lr.riMJMn Ward, for plaintiffs. Wm. W. Goodrich, for defendant. WALLACE, J. The plaintiffs are underwriters, who had insured a cargo oflumbershipped.in JIDy, 1878, on the schoonerS.B. Hume, which