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3.

A Spanish vessel seized as a prize on April 22, 1898, when there was probable cause for the seizure, but which was exempted from seizure and condemnation by the subsequent proclamation of April 26, is not entitled to damages or costs on restitution.

[No. 106.]

Argued November 1, 2, 1899. Decided
cember 11, 1899.

er coal, the charter party giving the vessel the liberty to stop at any port on the voyage for coal, then to proceed to Rotterdam. After leaving port at Ship Island she proceeded on her voyage to Norfolk, and about halfpast seven o'clock on the morning of April 22, while proceeding close to the Florida reefs, was captured as stated. She made no De-resistance at the time of her capture, there were no military or naval officers on board of her, and she carried no arms or munitions The evidence is undisputed that the vessel, when captured, was proceeding on her voyage to Norfolk.

APPEAL from a decree of the District
Court of the United States for the
Southern District of Florida condemning a
vessel as a prize. Reversed.

See same case below, 87 Fed. Rep. 927.

Statement by Mr. Justice Peckham: {385] *During the late war between the United States and Spain, and on May 27, 1898, the district court of the United States for the southern district of Florida condemned the steamship Buena Ventura as lawful prize of war, on the ground "that the said steamship Buena Ventura was enemy's property, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure." It was thereupon ordered that the vessel "be condemned and forfeited to the United States as lawful prize of war; but, it appearing that the cargo of said steamer was the property of neutrals and not contraband and subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimant or the true and lawful owners thereof."

of

war.

Previous to sailing from Ship Island she was furnished with a bill of health, in which it was stated that she was now "ready to depart from the port of Pascagoula, Mississippi [which is the customs port of Ship Island], for Norfolk, Virginia, and other places beyond the sea." Her manifest showed ed "Coast Manifest," and after a description of the cargo it continues: "Permission is hereby granted to said vessel to proceed from this port to Norfolk, in the district of Norfolk and state of Virginia, to lade bunker coal;" and it was signed and sealed by the deputy collector of Pascagoula, district of Pearl river, Mississippi, on April 14, 1898, and the fees therefor paid.

that she was bound for Norfolk. It is head

The ship's clearance was for Norfolk, and contained the same permission to proceed there to lade bunker coal.

There was no evidence which tended to throw any suspicion as to the destination of the vessel.

After obtaining all of her papers in the regular way, and having cleared at the custom house on April 14, 1898, she was detained at Ship Island by low water until between 8 and 9 o'clock, A. M. of April 19, 1898, when she sailed over the bar and proceeded on her

voyage.

In the test affidavit of the master he swore

that at all times before the ship's seizure he and all of his officers were ignorant that war existed between Spain and the United States, and the vessel at the time of her capture was following the ordinary course of her voyage.

The vessel was captured on April 22, 1898, 8 or 9 miles from Sand Key light, on the Florida coast, by the United States ship of war Nashville, under the command of a line officer of the United States Navy, was brought into the port of Key West for adjudication, and was condemned upon the answers, given by the master and mate of the steamship, to standing interrogatories in preparatorio, and upon the documents seized on board the ship by the captors. This evidence showed that the steamship was a Spanish vessel engaged exclusively in the carry*The various proceedings of Congress, proc-[387] ing of cargoes, and that at the time of her lamations of the President, letters of the Seccapture she was making a voyage under a retary of State, and other public documents charter party which had been concluded in connected with occurrences leading up to the Liverpool on March 23, 1898, between the breaking out of hostilities between this counagents of the owners and the agents of the try and Spain are contained in this record, charterers. By this charter party the steam-but are also set forth at sufficient length in ship was described as "now ready to leave Cuba;" and it was agreed upon therein that the vessel should with all convenient speed proceed to Ship Island, Mississippi, and there take on a cargo of lumber, and proceed therewith, as customary, to Rotterdam. The vessel was to be at her loading place and ready for cargo on or before the 10th of April, and if she were not, the charterers had the option of canceling the charter. Pursuant to this charter party the ship left Cuba and arrived at Ship Island about the 31st of March, and between that time and the 19th of April she had taken on her cargo, and on 386 the latter day had sailed from Ship Island bound for Norfolk, Virginia, to take in bunk

the statement of facts contained in the report of the case of The Pedro, ante, p. 195, and it is unnecessary, therefore, to repeat

them.

After a hearing the district court, on the 27th of May, 1898, condemned the vessel (87 Fed. Rep. 927), which was sold under the final decree of the court, and her proceeds deposited to abide the event of an appeal, which was then taken on the part of the

claimant.

Mr. J. Parker Kirlin argued the cause, and Messrs. Convers & Kirlin filed a brief, for appellant:

The proclamation should be construed with

due regard to our traditional policy towards | chant vessel in the peaceful prosecution of the question of the exemption of private property at sea from capture during war. Every marine capture is at the peril of the captors, who must show just grounds for the detention or condemnation of the ship or be liable for damages.

The Resolution, 2 Dall. 1, sub nom. Miller V. The Resolution, 1 L. ed. 263; The Grand Sachem, Dall. 333, sub nom. Del Col v. Arnold, 1 L. ed. 625; The Charming Betsy, 2 Cranch, 64, sub nom. Murray v. The Charming Betsy, 2 L. ed. 208; Maley v. Shattuck, 3 Cranch, 458, 2 L. ed. 498; The Amiable Nancy, 3 Wheat. 546, 4 L. ed. 456; British Consul v. Thompson, Bee, 142, Fed. Cas. No. 1,899.

Without a declaration it seems that war does not begin until some blow is struck or some shot fired.

1 Halleck, Int. Law, Baker's ed. p. 525: Owen, Declaration of War, pp. 12, 36, 37; Hall, Int. Law, 4th ed. pp. 63, 392; Takahashi, International Law during Chino-Japanose War, pp. 9, 39; The Teutonia, L. R. 4

P. C. 171.

In order to prevent a forfeiture, the court will regard parts of a day.

Combe v. Pitt, 3 Burr. 1423; Burgess v. Salmon, 97 U. S. 381, 24 L. ed. 1104.

It was not in accordance with international usage to attempt to make the Buena Ventura hostile by firing upon her.

Takahashi, International Law during the Chino-Japanese War, pp. 9, 39.

The subsequent declaration of war by Congress, on April 25th, which recites that war had existed from and including April 21st, should not be given retroactive effect so as to justify the capture of private property which, otherwise, would not have been subject to seizure.

1 Halleck, Int. Law, Baker's ed. p. 542. Assistant Attorney General Hoyt argued the cause and, with Messrs. Joseph K. McCammon and James H. Hayden, filed a brief for the United States and the captors:

Exemptions founded upon the proclamation should be express or deducible by clear and necessary inference, and where in a natural signification of the words the meaning is plain and there is nothing to interpret, an "interpretation" is not allowable; and the introduction of a different and enlarged meaning and the extension of the exemptions to cases not covered nor intended to be cov

ered, may not be permitted under the doctrines of prize law and well-settled principles of all law relating to statutory construction. 2 Vattel, chap. 17, § 262; Doggett v. Flor. ida R. Co. 99 U. S. 72, 25 L. ed. 301; Thornley v. United States, 113 U. S. 310, 28 L. ed. 999, 5 Sup. Ct. Rep. 491; Lake County v. Rollins, 130 U. S. 662, 32 L. ed. 1060, 9 Sup. Ct. Rep. 651; The Phoenix, 1 Spinks, Prize Cas. 306; The Argo, 1 Spinks, Prize Cas. 375.

Messrs George A. King and William B. King filed a further brief for certain captors.

[387] *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court: The Buena Ventura was a Spanish mer

her voyage to Norfolk, Virginia, from Ship Island, in the state of Mississippi, when, on the morning of April 22, 1898, she was captured as lawful prize of war, of the exist ence of which, up to the moment of capture, all her officers were ignorant. She was not violating any blockade, carried neither contraband of war nor any officer in the military or naval service of the enemy, nor any de spatch of or to the Spanish government, and attempted no resistance when captured.

The facts regarding this vessel place her within that class *which this government has[388] always desired to treat with great liberality. It is, as we think, historically accurate to say that this government has always been, in its views, among the most advanced of the governments of the world in favor of miti gating, as to all noncombatants, the hardships and horrors of war. To accomplish that object it has always advocated those rules which would in most cases do away with the right to capture the private property of an enemy on the high seas. ton, Int. Law Dig. § 342. The refusal of this government to agree to the Declaration of Paris was founded in part upon the refusal of the other governments to agree to the proposition exempting private property, not contraband, from capture upon the sea.

3 Whar

It being plain that merchant vessels of the enemy carrying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out, would, in accordance with the later practice of civilized nations, be the subject of liberal treatment by the Executive, it is necessary when his proclamation treatment of merchant vessels, to put upon has been issued, which lays down rules for the words used therein the most liberal and extensive interpretation of which they are capable; and where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued, ought to be adopted.

This is the doctrine of the English courts, Cases, 1, 5 Spinks, Eccl. & Adm. Rep. 306, as exemplified in The Phoenix, Spinks Prize and The Argo, Spinks Prize Cases, p. 52, doctrine which this court believes to be prop1 Spinks, Eccl. & Adm. Rep. 375. It is the

er and correct.

tive we must look to the words which he

To ascertain the intention of the Execu

uses.

If the language is plain and clear, and the meaning not open to discussion, there is an end of the matter. If, however, such is not the case, and interpretation or construction must be resorted to for the purpose of ascertaining the precise meaning of the text, it is our duty with reference to this public instrument to make it as broad in its exemptions as is reasonably possible.

*If inferences must be drawn therefrom in[389] order to render certain the limitations intended, those inferences should be, so far as is possible, in favor of the claimant in behalf of the owners of the vessel.

The language to justify an exemption of which were in such ports on the day when the the vessel must, it is true, be found in the proclamation was issued, April 26. Or it proclamation; yet if such language fail to might be held (in accordance with the deci state with entire clearness the full extent sion of the district court) to include those and scope of such exemption, thereby making that were in such ports on the 21st of April, it necessary that some interpretation there-the day that war commenced, as Congress deof should be given, it is proper to refer to clared. Or it might be construed so as to the prior views of the Executive Depart- include, not alone those vessels that were in ment of the government as evidence of its port on that day, but also those that had policy regarding the subject. This is not sailed therefrom on any day up to and infor the purpose of enlarging the natural and cluding the 21st of May, the last day of exordinary meaning of the words used in the emption, and were, when captured, continuproclamation, but for the purpose of thereby ing their voyage, without regard to the parthrowing some light upon the intention of ticular date of their departure from port, the Executive in issuing the instrument, and whether immediately before or subsequently also to aid in the interpretation of the lan-to the commencement of the war or the issuguage employed therein, where the extent oring of the proclamation.

scope of that language is not otherwise en- The district judge, before whom several tirely plain and clear. A reference to the cases were tried together, held that the date views that have heretofore been announced by of the commencement of the war (April 21) the Executive Department is made in 3 was the date intended by the Executive; that Wharton, supra, and it will be found that as the proclamation of the 22d of April gave they are in entire accord with the most lib-thirty days to neutral vessels found in blockeral spirit for the treatment of noncombat-aded ports, it was but reasonable to consider ant vessels of the enemy.

We come now to the construction of the instrument. It will be seen that Congress on the 25th of April, 1898, declared war against Spain, and in the declaration it is stated that war had existed since the 21st of April preceding. The President on the 26th of April issued his proclamation regarding the principles to be followed in the prosecution of the war. It is dated the day it was issued. The fourth clause thereof may for convenience be here reproduced, as follows:

that the same number of days, commencing
at the outbreak of the war, should be al-
lowed so as to bring it to the 21st of May,
the day named; that although a retrospective
effect is not usually given to statutes, yet[391]
the question always is, What was the inten-
tion of the legislature?

He also said that "the intention of the Executive was to fully recognize the recent practice of civilized nations, and not to sanction or permit the seizure of the vessels of the enemy within the harbors of the United States at the time of the commencement of the war, or to permit them to escape from ports to be seized immediately upon entering upon the high seas." (See preamble to proclamation.)

In The Buena Ventura, the case at bar, the district judge held that her case "clearly does not come within the language of the proclamation."

"4. Spanish merchant vessels in any ports or places within the United States shall be allowed until 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, upon examination of their papers, it shall appear that their cargoes It is true the proclamation did not in so were taken on board before the expiration of many words provide that vessels which had the above term: Provided, that nothing here-loaded in a port of the United States and 390]in 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 despatch of or to the Spanish government."

What is included by the words "Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places?" At what time must these Spanish vessels be "in any ports or places within the United States," in order to be exempt from capture? The time is not stated in the proclamation, and therefore the intention of the Executive as to the time must be inferred. It is a case for construction or interpretation of the language employed.

That language is open to several possible constructions. It might be said that in describing Spanish merchant vessels in any vorts, etc., it was meant to include only those 75 U. S. U. S., Book 44.

sailed therefrom before the commencement of the war should be entitled to continue their voyage, but we think that those vessels are clearly within the intention of the proclama tion under the liberal construction we are bound to give to that document.

An intention to include vessels of this class in the exemption from capture seems to us a necessary consequence of the language used in the proclamation when interpreted according to the known views of this government on the subject and which it is to be presumed were the views of the Executive. The vessel when captured had violated no law. She had sailed from Ship Island after having obtained written permission, in accordance with the laws of the United States, to proceed to Norfolk in Virginia, and the permission had been signed by the deputy collector of the port and the fees therefor paid by the ship. She had a cargo of lumber, loaded but a short time before the commencement of the war, and she left the port but forty-eight hours prior to that event. The

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language of the proclamation certainly does | weeks from the date hereof, for loading their not preclude the exemption of this vessel, cargoes and departing from such ports of and it is not an unnatural or forced construc- places," etc. The claim of exemption was tion of the fourth clause to say that it in-made on the ground that the vessel had been cludes this case.

The omission of any date in this clause, upon which the vessel must be in a port of [392]the United States, and prior to which the exemption would not be allowed, is certainly very strong evidence that such a date was not material, so long as the loading and departure from our ports were accomplished before the expiration of May 21. It is also evident from the language used that the material concern was to fix a time in the future, prior to the expiration of which vessels of the character named might sail from our ports and be exempt from capture. The particular time at which the loading of cargoes and sailing from our ports should be accomplished was obviously unimportant, provided it was prior to the time specified. Whether it was before or after the commencement of the war, would be entirely immaterial. This seems to us to be the intention of the Executive, derived from reading the fourth clause with reference to the general rules of interpretation already spoken of, and we think there is no language in the proclamation which precludes the giving effect to such intention. Its purpose was to protect innocent merchantmen of the enemy who had been trading in our ports from capture, provided they sailed from such ports before a certain named time in the future, and that purpose would be wholly unaffected by the fact of a sailing prior to the war. That fact was immaterial to the scheme of the proclamation, gathered from all its language.

We do not assert that the clause would apply to a vessel which had left a port of the United States prior to the commencement of the war, and had arrived at a foreign port and there discharged her cargo, and had then left for another foreign port prior to May 21. The instructions to United States ships, contained in the fourth clause, to permit the vessels "to continue their voyage," would limit the operation of the clause to those vessels that were still on their original voyage from the United States, and had taken on board their cargo (if any they had) at a port of the United States before the expiration of the term mentioned. The exemption would probably not apply to such a case as The Phoenix, Spinks Prize Cases, 1, 1 Spinks, Ecol. & Adm. Rep. 306. That case arose out of the English order in council, made at the commencement of the Crimean war. The vessel had sailed from an English [393]port in the middle of *February, 1854, with a cargo, bound for Copenhagen, and having reached that port and discharged her cargo by the middle of March, she had sailed therefrom on the 10th of April, bound to a foreign port, and was captured on the 12th of April, while proceeding on such voyage. The order in council was dated the 29th of March, 1854, and provided that "Russian merchant vessels, in any ports or places within her Majesty's dominions, shall be allowed until the 10th day of May next, six

in an English port, and although she sailed therefrom in the middle of February to Copenhagen and had there discharged her cargo, before the order in council was promulgated, yet it was still urged that she was entitled to exemption from capture. The court held the claim was not well founded, and that it could not by any latitude of construction hold a vessel to have been in an English port on the 29th of March, which on that day was lying in the port of Copenhagen, having at that time discharged the cargo which she had taken from the English port. It is true the court took the view that the vessel must at all events have been in an English port on the 29th of March in order to obtain exemption, and if not there on that day, the vessel did not come within the terms of the order and was not exempt from capture. From the language of the opinion in that case it would seem, not only that a vessel departing the day before the 29th of March would not come within the exemp tion, but that a vessel arriving the day after the 29th, and departing before the 10th of May following, would also fail to do so; that the vessel must have been in an English port on the very day named, and if it departed the day before or arrived the day after, it was not covered by the order.

The French government also, on the outbreak of the Crimean war, decreed a delay of six weeks, beginning on the date of the decree, to Russian merchant vessels in which to leave French ports. Russia issued the same kind of a decree, and other nations have at times made the same provisions. It is *claimed that they confine the exemption to[394] vessels that are actually within the ports of the nation at the date of issuing the decree or order.

We are not inclined to put so narrow a construction upon the language used in this proclamation. The interpretation which we have given to it, while it may be more liberal than the other, is still one which may properly be indulged in.

If this vessel, instead of sailing on the 19th, had not sailed until the 21st of April. the court below says she would have been exempt from capture. In truth, she was from her character and her actual employment just as much the subject of liberal treatment, and was as equitably entitled to an exemption when sailing on the 19th, as she would have been had she waited until the 21st. No fact had occurred since her sailing which altered her case in principle from the case of a vessel which had been in port on, though sailing after, the 21st. To attribute an intention on the part of the Executive to exempt a vessel if she sailed on or after the 21st of April, and before the 21st of May, and to refuse such exemption to a vessel in precisely the same situation, only sailing before the 21st, would, as we think, be without reasonable justification. It may safely be affirmed that he never had any such distine

The CHIEF JUSTICE and Mr. Justice Gray and Mr. Justice McKenna dissented.

tion in mind and never intended it to exist. | custody and preservation up to the time of There is nothing in the nature of the two her sale, and it is so ordered. cases calling for a difference in their treatment. They both alike called for precisely the same rule, and if there be language in the clause or proclamation from which an inference can be drawn favorable to the exemption, and none which precludes it, we are bound to hold that the exemption is given. We think the language of the proclamation does permit the inference, and that there is none which precludes it.

We are aware of no adjudications of our own court as to the meaning to be given to words similar to those contained in the proclamation, and it may be that a step in advance is now taken upon this subject. Where, however, the words are reasonably capable of an interpretation which shall include a vessel of this description in the exemption from capture, we are not adverse to adopting it, even though this court may be the first to do so. If the Executive should 395jhereafter be inclined to take the other view, the language of his proclamation could be so altered as to leave no doubt of that intention, and it would be the duty of this court to be guided and controlled by it.

Deciding as we do in regard to the fourth clause, it becomes unnecessary to examine the other grounds for a reversal discussed at the bar.

*THEOPHILUS KING, Adverse Claimant,[396]
and the Lippitt Woolen Company, Al-
leged Trustee, Plffs. in Err.,

v.

JOHN A. CROSS et al.

(See S. C. Reporter's ed. 396-408.) Garnishment of debt due to nonresident creditor-due process of law-effect of insolvency proceedings in other state-when insolvent devested of title.

1.

2.

3.

A garnishment of a resident debtor to reach a debt due to a nonresident defendant who has no property subject to the jurisdiction of the court does not deprive him of property without due process of law.

An insolvent is not devested of all control over his assets, under the Massachusetts law, from the mere fact of the filing of the petition in insolvency; but this, in a voluntary proceeding, takes place only from the time of the first publication of the notice of issuing the warrant.

The question of costs then arises. We had occasion in The Olinde Rodrigues, 174 U. S. 510, 43 L. ed. 1065, 19 Sup. Ct. Rep. 851, to examine that question in relation to the existence of probable cause for making the capture. In that case it was held that such probable cause did exist, and although the facts therein proved did not commend the vessel to the favorable consideration of the court, yet upon a careful review of the en- Argued October 12, 1899. tire evidence we held that we were not compelled to proceed to the extremity of con

The provision of the Massachusetts statute retroactively vacating attachments does not control attachments levied in other states at a time when, under the Massachusetts insolvent law, the insolvent had not, by operation of law, been deprived of the dominion and control over his credits.

demning the vessel. Restitution was there- IN

fore awarded, but without damages. Payment of the costs and expenses incident to her custody and preservation, and of all costs in the case except the fees of counsel, were imposed upon the ship.

[No. 28.]

ber 11, 1899.

Decided Decem

N ERROR to the Supreme Court of the State of Rhode Island to review a decision sustaining the lien of trustee process in that state to reach a debt due to a resident of Massachusetts against proceedings under the Massachusetts insolvent law. Affirmed. See same case below, 19 R. I. 220, 33 Atl. 147.

Statement by Mr. Justice White:

The firm of Brown, Steese, & Clarke, established in Boston, on the 12th day of August,

NOTE. The effect of the decision in this case and in Chicago, R. I. & P. R. Co. v. Sturm, 174 U. S. 710, 43 L. ed. 1144, 19 Sup. Ct. Rep. 797, on the authority of which the principal case depends, is virtually to settle a long standing conflict between the state courts as to the situs of a debt for the purpose of garnishment. The majority of the cases are in harmony with the

In this case, but for the proclamation of April 26, the ship would have been liable to seizure and condemnation as enemy property. At the time of seizure, however (April 22), that proclamation had not been issued, and hence there was probable cause for her seizure, although the vessel was herself entirely without fault. The subsequent issuing of the proclamation covering the case of a vessel situated as was this one took away the right to condemn which otherwise would have existed. Thus, at the time of seizure, both parties, the capturing and the captured ship, were without fault, and while we reverse the judgment of condemnation and award restitution, we think it should be without damages or costs in favor of the ves-lington & M. River R. Co. v. Thompson, 31 Kan. sel captured. The ship having been sold, the moneys arising from the sale must be paid to the claimant, without the deduction of any costs arising in the proceeding, but after deducting the expenses properly incident to her

doctrine announced by the United States Su-
preme Court, that a debt is subject to garnish-
ment at the residence of the debtor. See Bur-

180. 47 Am. Rep. 497, 1 Pac. 622; Morgan v.
Neville, 74 Pa. 52; Mobile & O. R. Co. v. Barn-
hill, 91 Tenn. 395, 19 S. W. 21; Campbell v.
Home Ins. Co. 1 S. C. N. S. 158; Hannibal &
St. J. R. Co. v. Crane, 102 Ill. 249, 40 Am.
Rep. 581; Glover v. Wells, 40 Ill. App. 350;

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