# The Pedro

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## Dissenting Opinion

    White
United States Supreme Court
175 U.S. 354
The Prdro
Argued: November 2, 3, 1899. --- Decided: December 11, 1899
[ This is an appeal from a decree of the district court of the United States for the southern district of Florida condemning the steamer Pedro as lawful prize of war on a libel filed April 23, 1898.
April 20, 1898, the President approved the following joint resolution:
'First. That the people of the island of Cuba are, and of right ought to be, free and independent.
'Second. That it is the duty of the United States to demand, and the government of the United States does hereby demand, that the government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.
'Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several states, to such extent as may be necessary to carry these resolutions into effect.
'Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.' 30 Stat. at L. 738.
On the same day, the minister of Spain to the United States requested and obtained his passports; the text of the resolution was cabled to the minister of the United States at Madrid; and the Secretary of States by separate despatch directed him to communicate the resolution to the government of Spain with the formal demand of the United States therein made, and the notification that in the absence of a response by April 23 the President would proceed without further notice to use the power and authority enjoined and conferred upon him.
April 21 the minister of the United States at Madrid acknowledged the receipt of the Secretary's despatch that morning, but saying that before he had communicated it he had been notified by the minister of foreign affairs of Spain that diplomatic relations were broken off between the two countries, and that he had accordingly asked for his passports. The letter from the minister of foreign affairs of Spain referred to was as follows:
'In compliance with a painful duty I have the honor to inform Your Excellency that the President, having approved a resolution of both Chambers of the United States, which, in denying the legitimate sovereignty of Spain and threatening an immediate armed intervention in Cuba, is equivalent to an evident declaration of war, the government of His Majesty has ordered its minister in Washington to withdraw without loss of time from the North American territory, with all the personnel of the legation. By this act the diplomatic relations which previously existed between the two countries are broken off, all official communications between their respective representatives ceasing, and I hasten to communicate this to Your Excellency in order that on your part you may make such dispositions as seem suitable. I beg Your Excellency to acknowledge the receipt of this note at such time as you deem proper, and I avail myself of this opportunity to reiterate to you the assurances of my distinguished consideration.'
The Secretary of the Navy at once gave instructions to the commander in chief of the North Atlantic squadron to 'immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west; also, if in your opinion your force warrants, the port of Cienfuegos, on the south side of the island. . . . It is believed that this blockade will cut off Havana almost entirely from receiving supplies from the outside. . . . The department does not wish the defenses of Havana to be bombarded or attacked by your squadron.'
April 22 Admiral Sampson, in command, instituted the blockade, and on that day the President issued the following proclamation:
'Whereas, by a joint resolution passed by the Congress and approved April 20, 1898, and communicated to the government of Spain, it was demanded that said government at once relinquish its authority and government in the island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters; and the President of the United States was directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several states to such extent as might be necessary to carry said resolution into effect; and
'Whereas, in carrying into effect said resolution, the President of the United States deems it necessary to set on foot and maintain a blockade of the north coast of Cuba, including all ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the south coast of Cuba:
'Now, therefore, I, William McKinley, President of the United States, in order to enforce the said resolution, do hereby declare and proclaim that the United States of America have instituted, and will maintain, a blockade of the north, coast of Cuba, including ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the south coast of Cuba, aforesaid, in pursuance of the laws of the United States and the law of nations applicable to such cases. An efficient force will be posted so as to prevent the entrance and exit of vessels from the ports aforesaid. Any neutral vessel approaching any of said ports, or attempting to leave the same, without notice or knowledge of the establishment of such blockade, will be duly warned by the commander of the blockading forces, who will indorse on her register the fact, and the date, of such warning, where such indorsement was made; and if the same vessel shall again attempt to enter any blockaded port, she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize as may be deemed advisable.
'Neutral vessels lying in any of said ports at the time of the establishment of such blockade will be allowed thirty days to issue therefrom.' 30 Stat. at L. 1769.
April 23 the Queen Regent of Spain issued a decree, in which, among other things, it was stated:
'Art. I. The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries.
'Art. II. A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart.'
April 25, in response to a message from the President, Congress passed the following act, which was thereupon duly and at once approved:
'First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain.
'Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several states, to such extent as may be necessary to carry this act into effect.' 30 Stat. at L. 364.
April 26 the President issued a further proclamation, as follows:
'Whereas, By an act of Congress, approved April 25, 1898, it is declared that war exists, and that war has existed since the 21st day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain; and
'Whereas, It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of this government will be, not to resort to privateering, but to adhere to the rules of the Declaration of Paris:
'Now, therefore, I, William McKinley, President of the United States of America, by virtue of the power vested in me by the Constitution and the laws, do hereby declare and proclaim:
'1. The neutral flag covers enemy's goods, with the exception of contraband of war.
'2. Neutral goods, not contraband of war, are not liable to confiscation under the enemy's flag.
'3. Blockades in order to be binding must be effective.
'4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till 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, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein 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 the voyage), or any other article prohibited or contraband of war, or any despatch of or to the Spanish government.
'5. Any Spanish merchant vessel, which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.
'6. The right of search is to be exercised with strict regard for the rights of neutrals, and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade.' 30 Stat. at L. 1770.
The steamship Pedro was built at Newcastle, England, in 1883, and, until 1887, sailed under British registry and the name of the Lilburn Tower. In the latter year her name was changed to the Pedro, and she was transferred to La Compania la Flecha, a Spanish corporation of Bilboa, Spain, and registered at that port in its name, and, on October 4, 1887, obtained a royal patent from the Crown of Spain, which was issued to her as the property of the company. Thereafter she sailed under the Spanish flag and was officered and manned by Spaniards, though she was engaged in the transportation of cargo for hire as a merchant vessel under the management of G. H. Fletcher & Company of Liverpool. Her voyages began in Europe, where she took cargo for Cuban ports, from which ports on discharge she proceeded to ports of the United States, where she took cargo for a port of discharge in Europe, the round trip occupying about three months. Between March 20 and March 25, 1898, she took on board at Antwerp, Belgium, some 2,000 tons of cargo for Havana, Santiago de Cuba, and Cienfuegos, Cuba, of which 1,700 tons was rice, and the rest hardware, empty bottles, paper, cement, and general cargo.
On March 18, 1898, she was chartered to the firm of Keyser & Company, being described in the charter party as 'now loading in Antwerp for Cuba,' to proceed to Pensacola, Florida, or Ship Island, Mississippi, 'with all convenient speed,' to loan a cargo of lumber for Rotterdam or Antwerp. The charter party provided that 'should the vessel not be in all respects ready for cargo at her loading place on or before the 18th of May, 1898, charterers or their agents have the option of canceling this charter. If required by charterers, lay days are not to commence at loading port before the 5th of May, 1898.' Among the ship's papers was a bill of health issued by the consul of the United States at Antwerp, March 24, which described her as 'engaged in Atlantic trade, and plies between Antwerp, Cuba, and the United States.' The bill of health concluded as follows: 'I certify that the vessel has complied with the rules and regulations made under the act of February 15, 1893, and that the vessel leaves this port bound for Pensacola, in the United States of America, via Havana, Santiago, and Cienfuegos.' The steamer's freight list on the voyage to Cuban ports was valued at about $7,000, stated to be barely sufficient to cover the expenses of receiving, transporting, and delivering that cargo; and the charter hire on the contemplated voyage from Pensacola or Ship Island to Rotterdam would have been about $25,000.
The steamer arrived at Havana on April 17, and remained there for five days, discharging about 1600 tons of her cargo, and taking on some 20 tons of general merchandise for Santiago. On April 22, at about half after 3 o'clock in the afternoon, she left Havana for Santiago, and at 6 o'clock, when about 15 miles east of the Morro, at the entrance of Havana harbor, and 5 miles north of the Cuban coast, was captured by the cruiser New York, one of the blockading fleet, and sent to Key West in charge of a prize crew. There she was libelled on April 23.
In due course, proofs in preparatorio, which embraced the ship's papers and the depositions of her master and first officer, were taken. The master appeared in behalf of the owners and made claim to the vessel, and moved the court for leave to take further proofs, presenting with the motion his test affidavit. In the affidavit it was alleged that, although a majority of the stock of La Compania la Flecha was registered in the names of Spanish subjects and only a minority in the names of British subjects (members of the firm of G. H. Fletcher & Company), one of the latter had possession of all the certificates of stock, which, under the charter of the company, established the ownership thereof, whereby he was the 'sole beneficial owner of the said steamer Pedro.' And further that the steamer was transferred from the British to the Spanish registry solely for commercial reasons, 'there being discriminations in favor of vessels carrying the Spanish flag in respect of commerce with the colonies of Spain, in consideration of dues paid by such steamers to the government of Spain,' but that it was the intention of the British stockholders to withdraw her from the Spanish registry and from under the Spanish flag, and restore her to the British registry and the flag of Great Britain whenever the trade might be disturbed. It was also alleged that the steamer was insured 'against all perils and adventures, including the risks of war, for her full value by underwriters of Lloyds, London, and by insurance companies organized and existing under and pursuant to the laws of Great Britain, and that if the said vessel should be condemned as prize by this court the loss will rest upon and be borne by the said English underwriters.'
The motion was denied, the cause heard on the pleadings and the proofs taken in preparatorio, and a decree of condemnation entered. Subsequently the Secretary of the Navy elected to take the vessel for the use of the United States pursuant to § 4624 of the Revised Statutes. By order of court she was duly appraised and delivered to the Navy Department, and the amount of her appraised value deposited with the Assistant Treasurer of the United States, at New York, subject to the order of the district court. From the decree of condemnation an appeal was prosecuted to this court.
Mr. Wilhelmus Mynderse for appellant.
Messrs. James H. Hayden, Joseph K. McCammon, and Assistant Attorney General Hoyt for captors.
Mr. Chief Justice Fuller delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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