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High CotmT of Admiralty of Great Britain. 1807.

6 C. Eobinson, 430.

This was a case . . . of an American vessel that had been

ostensibly chartered by a merchant at Lisbon, 'Ho proceed in

ballast to Macao, and there to take a cargo to America," but

which had been afterwards, by his directions, fitted up for the

reception of three military officers of distinction, and two per-

sons in civil departments in the government of Batavia, who

had come from Holland to take their passage to Batavia, under

the appointment of the Government of Holland. There were also

on board a lady, and some persons in the capacity of servants,

making in the whole seventeen passengers. . . .

Sir "W. Scott [Lord Stowell]. — This is the case of an ad-


mitted American vessel ; but the title to restitution is impugned,

on the ground of its having been employed, at the time of the

capture, in the service of the enemy, in transporting military

persons first to Macao, and ultimately to Batavia. That a vessel

326 CASES ON INTERNATIONAL LAW.

hired by the enemy for the conveyance of military persons, is to

be considered as a transport subject to condemnation, has been

in a recent case held by this court, and on other occasions. Whai

is the number of military persons that shall constitute such a

case, it may be difficult to define. In the former case there were

many, in the present there are much fewer in number; but I

accede to what has been observed in argument, that number alone

is an insignificant circumstance in the considerations, on which


the principle of law on this subject is built ; since fewer persons

of high quality and character may be of more importance, than

a much greater number of persons of lower condition. To send

out one veteran general of France to take the command of the

forces of Batavia, might be a much more noxious act than the

conveyance of a whole regiment. The consequences of such as-

sistance are greater; and therefore it is what the Belligerent

has a stronger right to prevent and punish. In this instance the

military persons are three, and there are besides, two other per-

sons wbo were going to be employed in civil capacities in the gov-

ernment of Batavia. Whether the principle would apply to them

alone, I do not feel it necessary to determine. I am not aware


of any case in which that question has been agitated; but it

appears to me on principle to be but reasonable that, whenever

it is of sufiicient importance to the enemy, that such persons

should be sent out on the public service, at the public expence, it

should afford equal ground of forfeiture against the vessel, that

may be let out for a purpose so intimately connected with the

hostile operations.

It has been argued, that the master was ignorant of the char-

acter of the service on which he was engaged, and that, in order

to support the penalty, it would be necessary that there should

be some proof of delinquency in him, or his owner. But, I con-

ceive, that is not necessary ; it will be sufficient if there is an in-

jury arising to the belligerent from the employment in which


the vessel is found. In the case of the Swedish vessel there was

no mens rea in the owner, or in any other person acting under his

authority. The master was an involuntary agent, acting under

compulsion, put upon him by the officers of the French Govern-

ment, and, so far as intention alone is considered, perfectly in-

nocent. In the same manner in cases of bona fide ignorance,

there may be no actual delinquency, but if the service is injuri-

ous, that will be sufficient to give the belligerent a right to pre-

vent the thing from being done, or at least repeated, by enforcing

the penalty of confiscation. If imposition has been practiced,

THE OROZEMBO. 327

it operates as force ; and if redress in the way of indemnification

is to be sought against any person, it must be against those, who


have, by means either of compulsion or deceit, exposed the

property to danger. If, therefore, it was the most innocent case

on the part of the master, if there was nothing whatever to affect

him with privity, the whole amount of this argument would be,

that he must seek his redress against the freighter; otherwise

such opportunities of conveyance would be constantly used,

and it would be almost impossible in the greater number of cases

to prove the knowledge, and privity, of the immediate offender.

It has been argued throughout, as if the ignorance of the

master alone would be sufficient to exempt the property of the

owner from confiscation. But may there not be other persons,

besides the master, whose knowledge and privity would carry with
it the same consequences? Suppose the owner himself had

knowledge of the engagement, would not that produce the mens

rea, if such a thing is necessary? or if those who had been em-

ployed to act for the owner, had thought fit to engage the ship

in a service of this nature, keeping the master in profound ignor-

ance, would it not be just as effectual, if the mens rea is neces-

sary, that it should reside in those persons, as in the owner?

The observations which I shall have occasion to make on the re-

maining parts of this case will, perhaps, appear to justify such

a supposition, either that the owner himself, or those who acted

for him in Lisbon or in Holland, were connusant of the nature

of the whole transaction. But I will first state distinctly, that the

principle on which I determine this case is, that the carrying


military persons to the colony of an enemy, who are there to take

on them the exercise of their military functions, will lead to con-

demnation, and that the Court is not to scan with minute arith-

metic the number of persons that are so carried. If it has ap-

peared to be of sufficient importance to the Government of the

enemy to send them, it must be enough to put the adverse Govern-

ment on the exercise of their right of prevention ; and the igno-

rance of the master can afford no ground of exculpation in favour

of the owner, who must seek his remedy in cases of deception, as

well as of force, against those who have imposed upon him. . . .

I have no hesitation in pronouncing that this vessel is liable to be

considered as a transport, let out in the service of the Govern-

ment of Holland, and that it is as such subject to condemnation.


Note. — Accord: The Friendship (1807), 6 C. Bobinson, 420; The

Manouba (1913), Scott, The Hague Court Beports, 341. A vessel under

charter of the enemy for the carriage of belligerent persons may be con-

328 CASES ON INTERNATIONAL LAW.

demned even though at the time of seizure no such persons are on board,

The Carolina (1802), 4 C, Kobinson, 256. For unfavorable criticism of

this case see Hall, 677»., and Westlake, II, 302.

THE ATALANTA.

High Coxjet of Admiealtt of Great Britain. 1808.

6 C. Eobinson, 440.

This was a case of a Bremen ship and cargo, captured on a

voyage from Batavia to Bremen, on the 14th of July, 1807, hav-


ing come last from the Isle of France; where a packet, contain-

ing dispatches from the Government of the Isle of France to the

Minister of Marine, at Paris, was taken on board by the master,

and one of the supercargoes, and was afterwards found concealed,

in the possession of the second supercargo, under circumstances

detailed in the judgment.

Sir W. Scott [Lord Sto well]. . . . I feel myself bound to

pronounce, that there were papers received on board, as public

dispatches, and knowingly by those who are the agents of the

proprietors; . . . and that the fact of a fraudulent con-

cealment and suppression is most satisfactorily demonstrated.

The question then is, what are the legal consequences attaching

on such a criminal act ? for that it is criminal and most noxious


is scarcely denied. What might be the consequences of a simple

transmission of dispatches, I am not called upon by the necessi-

ties of the present case to decide, because I have already pro-

nounced this to be a fraudulent case. That the simple carrying

of dispatches, between the colonies and the mother country of the

enemy, is a service highly injurious to the other Belligerent, is

most obvious. In the present state of the world, in the hostilities

of European powers, it is an object of great importance to pre-

serve the connection between the mother country and her col-

onies ; and to interrupt that connection, on the part of the other

Belligerent, is one of the most energetic operations of war. The

importance of keeping up that connection, for the concentration

of troops, and for various military purposes, is manifest ; and I


may add, for the supply of civil assistance also, and support,

because the infliction of civil distress, for the purpose of com-

pelling a surrender, forms no inconsiderable part of the opera-

tions of war. It is not to be argued, therefore, that the im-

portance of these dispatches might relate only to the civil wants

THE ATALANTA. ' 329

of the colony, and that it is necessary to shew a military tendency ;

because the object of compelling a surrender being a measure of

war, whatever is conducive to that event must also be considered,

in the contemplation of law, as an object of hostility, although

not produced by operations strictly military. How is this in-

tercourse with the mother country kept up, in time of peace ? by


ships of war, or by packets in the service of the state. If a war

intervenes, and the other Belligerent prevails to interrupt that

communication, any person stepping in to lend himself to effect

the same purpose, under the privilege of an ostensible neutral

character, does, in fact, place himself in the service of the enemy-

state, and is justly to be considered in that character. Nor let it

be supposed, that it is an act of light and casual importance.

The consequence of such a service is indefinite, infinitely beyond

the effect of any contraband that can be conveyed. The carrying

of two or three cargoes of stores is necessarily an assistance of a

limited nature; but in the transmission of dispatches may be

conveyed the entire plan of a campaign, that may defeat all the

projects of the other Belligerent in that quarter of the world.


It is true, as it has been said, that one ball might take off a

Charles the Xllth, and might produce the most disastrous effects

in a campaign; but that is a consequence so remote and acci-

dental, that in the contemplation of human events, it is a sort of

evanescent quantity of which no account is taken ; and the prac-

tice has been accordingly, that it is in considerable quantities

only that the offence of contraband is contemplated. The case

of dispatches is very different ; it is impossible to limit a letter

to so small a size, as not to be capable of producing the most im-

portant consequences in the operations of the enemy: It is a

service therefore which, in whatever degree it exists, can only be

considered in one character, as an act of the most noxious and

hostile nature. ... I have the direct authority of the Su-


I)erior Court for pronouncing that the carrying of dispatches

of the enemy brings on the confiscation of the vehicle so employed.

It is said, that this is more than is done even in cases of con-

traband ; and it is true, with respect to the very lenient practice

of this country, which, in this matter recedes very much from

the correct principle of the law of nations, which authorizes the

penalty of confiscation. . . . This Country, which, how-

ever much its practice may be misrepresented by foreign writers,

and sometimes by our own, has always administered the law of

nations with lenity, adopts a more indulgent rule, inflicting on

the ship only a forfeiture of freight in ordinary cases of contra-

330 CASES ON INTERNATIONAL LAW.


band. But the offence of carrying dispatches is, it has been

observed, greater. To talk of the confiscation of the noxious

article, the dispatches, which constitutes the penalty in contra-

band, would be ridiculous. There would be no freight dependent

on it, and therefore the same precise penalty cannot, in the na-

ture of things, be applied. It becomes absolutely necessary, as

well as just, to resort to some other measure of confiscation, which

can be no other than that of the vehicle.

Then comes the other question, whether the penalty is not also

to be extended further, to the cargo, being the property of the

same proprietors — not merely oh c&ntinentiam delicti, but like-

wise because the representatives of the owners of the cargo, are

directly involved in the knowledge and conduct of this guilty


transaction ? On the circumstances of the present case I have to

observe, that the offence is as much the act of those who are the

constituted agents of the cargo, as of the master, who is the agent

of the ship. The general rule of law is, that where a party has

been guilty of an interposition in the war, and is taken in delicto,

he is not entitled to the aid of the Court, to obtain the restitu-

tion of any part of his property involved in the same transaction.

It is said, that the term "interposition in the war" is a very

general term and not to be loosely applied. I am of opinion,

that this is an aggravated case of active interposition in the

service of the enemy, concerted and continued in fraud and

marked with every species of malignant conduct. In such a

case I feel myself bound, not only by the general rule, oh con-
tinentiam delicti, but by the direct participation of guilt in the

agents of the cargo. Their own immediate conduct not only

excludes all favourable distinction, but makes them pre-emi-

nently the object of just punishment. The conclusion therefore

is, that I must pronounce the ship and cargo subject to con-

demnation. . . .

Note. — A neutral vessel carrying prisoners without the consent of both

belligerents is treated as a commissioned cartel ship trading with or serv-

ing one of the belligerents in violation of the duty which it owes to the other,

The Brig Betsey (1913), 49 Ct. CI. 125. The fact that the unneutral

service was rendered in ignorance of the existence of war does not excuse

an offender who is brought before a prize court of his own country, The
Zambesi (New South Wales, 1914), 1 Br. & Col, P. C. 358. If a vessel

which is engaged in an unlawful voyage is captured while rendering un-

neutral service a plea of duress or compulsion will not be accepted, The

Catherina Maria (1809), Edwards, 337, The Seyerstadt (1813), 1 Dodson,

241; but a vessel engaged in a lawful voyage which is compelled by force

majeure to render unneutral service is innocent of wrong, The Pontoporos

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