The Adula

• Citation: 89 F. 351
• Parties: THE ADULA.
• Decision Date: 13 August 1898
• Court: U.S. District Court — Southern District of Georgia

89 F. 351

THE ADULA.

United States District Court, S.D. Georgia, Eastern Division.

August 13, 1898

Garrard Meldrim & Newman and Everett P. Wheeler, for claimant.

Marion Erwin, U.S. Atty., and W. R. Leaken, Asst. U.S. Atty.

SPEER District Judge.

The Adula, British steamship, was on August 3, 1898, adjudged in the district court of the United States for the Southern district of Georgia prize to the United States cruiser Marblehead and other United States vessels of war taking part in her capture while she was attempting to run the blockade established at Guantanamo Bay. The proctors for the Atlas Steamship Company, her claimant, served the following notice on the United States attorney:

'Take notice that upon the return day of the rule fixing the time and place for the hearing of the motion to take further proofs in this cause at Mt. Airy, in the state of Georgia on the 9th day of August, 1898, at 4 p.m., we will read the affidavits of Robert Gemmell and W. Peploe Forwood, of which copies are herewith served upon you, and that upon said hearing we will move this honorable court for directions respecting the sale of the Adula, unless such directions shall previously have been given. We will also move this honorable court for an order staying the distribution of the net proceeds of the sale. And we will further apply, at the same time, for such other relief as may be just.'

On the hearing of this motion, the affidavit of Robert Gemmell was offered for the claimant. By virtue of this affidavit, and the annexed statement of W. Peploe Forwood, who is the agent of the Atlas Steamship Company in Jamaica, it was sought to open the decree of condemnation granted after hearing the evidence taken in preparatorio, and open the case for additional testimony.

The hearing upon the proceedings for condemnation was upon the evidence afforded by the examinations of the captured crew taken upon standing interrogatories, the ship's papers, and other evidence of a documentary character found upon the ship by the captors. This was done in conformity to the established rule in prize causes:

'These papers and examinations in preparatorio constitute the only evidence on which the cause is first heard. If on this evidence there be doubt or justice require it, the court may, in its discretion, order further proof. ' Ben. Adm. Sec. 612(a).

The rule is otherwise stated by Mr. Justice Story in the case of The Pizarro, 2 Wheat. 240:

'It is upon the ship's papers, and the examinations thus taken in preparatory, that the cause is in the first instance to be heard in the district court; and, upon such hearing, it is to judge whether the cause be of such doubt as to require further proof, and, if so, whether the claimant has entitled himself to the benefit of introducing it. If the court should deny such order when it ought to be granted, or allow it when it ought to be denied, and the objection be taken by the party, and appear upon the record, the appellate court can administer the proper relief.'

It is true, also, that, by the settled rule of prize courts:

'The onus probandi of a neutral interest rests on the claimant. This rule is tempered by another, the liberality of which will not be denied, that the evidence to acquit or condemn shall, in the first instance, come from the ship's papers and persons on board; and, where these are not satisfactory, if the claimant has not violated good faith, he shall be admitted to maintain his claim by further proof. But if, in the event, after full time and opportunity to adduce proofs, the claim is still left in uncertainty, and the neutrality of the property is not established beyond reasonable doubt, it is the invariable rule of prize courts to reject the claim, and to decree condemnation of the property. ' Mr. Justice Story in The Amiable Isabella, 6 Wheat. 77.

The charterer of the Adula on the voyage which resulted in her capture was Don Jose R. Solis. He testifies that he was a loyal subject of the queen regent of Spain. In answer to the first interrogatory, Don Jose testified: 'I now live at Manzanillo, on the south coast, in the province of Santiago de Cuba. I have lived there ten years next January. I am a subject and citizen of Spain, and I owe allegiance to Spain. I am married. My family and wife reside at Manzanillo. ' He further testified that he frequently went into the country 15 or 20 miles from the city; but, 'after Gen. Weyler came in the country,' he said, 'I could not go in the country any more, because I feared that Gen Weyler might suspect me of being an insurgent. ' Don Jose was in good standing with the Spanish government. The official card entitling him to travel as a loyal Spaniard was found in his possession, was signed by the municipal authorities at Manzanillo in 1897, and he himself testified that it was not necessary to obtain a new one. The Spanish consular authorities seem to have afforded him every facility for his operations, for as late as June 28, 1898, he received from the Spanish consul at Jamaica an indorsement of the bill of health obtained from the Jamaica authorities to enable him to prosecute this voyage. It is also in evidence that there was given to him on that day by the Spanish consul a passport authorizing him to take the Adula into the Spanish ports mentioned. He undertook to provide an efficient Spanish government pilot to conduct the ship safely into the ports of Manzanillo, Santiago, and Guantanamo. For this he was to pay for the vessel 100 per day for the first 10 days of the voyage, and after that 50 a day, until she should return to the wharf at Kingston. The charter contained this further significant provision: 'The company will give the option to the charterer for another similar voyage, on similar terms, provided the charterer gives the company twenty-four hours' notice after the arrival of the steamer at Kingston. ' It is moreover true that Yeats, who was captain of the Adula, testified: 'As I understood it, as well as I can remember, we were to go to any other ports that the charterer designated, and was not put down in the letter of instructions, if he wished to go there. As I said before, if he wanted me to go to any other port except those specified in the charter party, I was to go there. ' He further testified that, if the trip ran beyond ten days, there was a special agreement made between Capt. Forwood, the agent of the ship, and Mr. Solis, as to payment for this. In his answer to the thirty-ninth interrogatory, the captain of the ship also testified: 'The Adula's destination was to go to Guantanamo Bay for refugees, and then to Santiago and Manzanillo, and such other places that the charterer may desire to go to after we had visited these ports. ' It is true that Don Jose R. Solis denied this testimony, and testified as follows: 'If I was to state to the captain to go here, he would say, 'You have no right to direct me.' I did not have the right to direct them to any particular port. ' With this allegiance, and thus supported by Spanish authority, Don Jose chartered the Adula, and with this charter he left the harbor of Kingston, Jamaica, on the 28th day of June, 1898. With the Adula he steamed away towards Santiago, and when in sight of the blockading fleet sheered off to Guantanamo, in half a mile of the entrance, where he was hailed by the Vixen, brought to, and directed into the harbor, where the Marblehead and other war vessels were lying, and shortly thereafter was seized by order of Commander McCalla, of the Marblehead.

While it is true that the Adula was owned by British subjects, it appears from the testimony of Don Jose that for all the purposes of this voyage, having been chartered by a Spaniard she was a Spanish ship. The authorities on this subject are as abundant as conclusive. That great admiralty judge, Sir William Scott, afterwards Lord Stowell, in The Ranger, 6 C.Rob.Adm, 126, declared: 'If the owner will place his property under the absolute management and control of persons who are capable of lending it in this manner, to be made an instrument of fraud in the hands of the enemy, he must sustain the consequences of such misconduct on the part of his agent. ' In The Jonge Emilia, cited in 3 C.Rob.Adm. 52, a neutral vessel was condemned because she appeared to have been altogether in the hands of merchants who were enemies, and had been employed for seven voyages successively in the enemy's trade. In The Napoleon, Blatchf. Price Case. 296, reported in 17 Fed.Cas. 1153 (No. 10,012), it was held that, even though the claimant was a loyal citizen of high character and a resident merchant of the city of New York, opposed strongly to the purposes of the Confederates, yet when, by the acts of his agent, with whom his vessel had been left, she was placed in illicit employment, she must be condemned. It is true that, in the case last cited, the ship was actually in the use of an opposing belligerent; but in principle the authority is applicable, for here she was placed, as the court is satisfied from the testimony of the master and otherwise, in the absolute control of a Spanish subject, who was using her, as will presently appear, to run the blockade, if in the absence of blockading vessels, or by practicing upon the credulity of American commanders, he could do so with impunity. It is now sought by this motion, made long after Don Jose R. Solis had testified, to open the judgment of condemnation, and offer proof that while he originally, and before the people of Cuba were declared by joint resolution of congress to be free and independent, owed allegiance to the queen of Spain, yet that soon after the war broke out he left the island of Cuba, had taken no part in hostilities against the United States, nor been...