THE PETERHOFF.

(Supreme Court of the United States, 1866. 5 Wall. 28, 18 L. Ed. 564.) Mr. Chief Justice CHASE.40 * * * The classification of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes.

Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege.

A considerable portion of the cargo of the Peterhoff was of the third class, and need not be further referred to. A large portion, perhaps, was of the second class, but is not proved, as we think, to have

although, as will appear, they, or at any rate some of them, might have been disposed of on narrower grounds. *

"For about one hundred and fifty years at least the law of prize has contained two settled rules, one which refuses to recognize transfers of the ownership of movables afloat from an enemy transferor to a neutral transferee, when unaccompanied by actual delivery of the goods; and the other, which condemns as if contraband any goods which, though not condemnable in themselves, belong or are deemed to belong when captured to the same owner as other cargo in the same vessel, which cargo itself is liable to condemnation as contraband.

串

"Their Lordships are fully aware that some continental jurists have criticized the rule of infection adversely, and that continental Prize Courts have not always accepted it, though it has long been adopted in the United States and more recently in Japan. They are, however, bound by the decisions of their predecessors, which, consistent as they are, it is too late to overrule and impracticable to distinguish. They would observe that, valuable as the opinions of learned and distinguished writers must always be, as aids to a full and exact comprehension of a systematic law of nations, Prize Courts must always attach chief importance to the current of decisions, and the more the field is covered by decided cases the less becomes the authority of commentators and jurists.

"When once it is found that, at the time of the seizure, the same person was owner of goods on board and embarked in the same transaction or transit. of which the ulterior destination involved their condemnation, and of goods bound for a neutral port without any ulterior destination, neither the captor nor the court is called on to investigate his mercantile operations as to these other parcels-an inquiry complex and remote, in which the claimant has all the information, and the captor all the disadvantage-but these goods also are involved in the condemnation."

40 The statement of facts is omitted and only that part of the opinion is given relating to contraband and its classification.

been actually destined to belligerent use, and cannot therefore be treated as contraband. Another portion was, in our judgment, of the first class, or, if of the second, destined directly to the rebel military service. This portion of the cargo consisted of the cases of artillery harness, and of articles described in the invoices as "men's army bluchers," "artillery boots," and "government regulation gray blankets." These goods come fairly under the description of goods primarily and ordinarily used for military purposes in time of war. They make part of the necessary equipment of an army.

It is true that even these goods, if really intended for sale in the market of Matamoras, would be free of liability; for contraband may be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles, at least, were destined for the use of the rebel forces then occupying Brownsville, and other places in the vicinity.

And contraband merchandise is subject to a different rule in respect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not.

The trade of neutrals with belligerents in articles not contraband is absolutely free, unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character, destined in fact to a state in rebellion, or for the use of the rebel military forces, were liable to capture, though primarily destined to Matamoras.

We are obliged to conclude that the portion of the cargo which we have characterized as contraband must be condemned. And it is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chancellor Kent, thus: "Contraband articles are infectious, as it is called, and contaminate the whole cargo belonging to the same owners, and the invoice of any particular article is not usually admitted, to exempt it from general confiscation."

So much of the cargo of the Peterhoff, therefore, as actually belonged to the owner of the artillery harness, and the other contraband goods, must be also condemned.

SECTION 5.-DESTINATION

I. CONTINUOUS VOYAGE 41

THE WILLIAM.

(Lords on Appeal in Prize Cases, 1806. 5 C. Rob. 385.)

This was a question on the continuity of a voyage in the colonial trade of the enemy, brought by appeal from the Vice Admiralty Court at Halifax, where the ship and cargo, taken on a destination to Bilboa in Spain, and claimed on behalf of Messrs. W. & N. Hooper of Marblehead in the state of Massachusetts, had been condemned 17th July, 1800.

It appeared in evidence that the ship had gone to Martinique, where the outward cargo was disposed of; that she then proceeded to Laguira, and took on board a cargo of cocoa, the property of the owners, which was brought to Marblehead on the 29th May, and unladen; that the ship was then cleaned and slightly repaired, and again took on board the chief part of the former cargo, with some sugars brought from the Havana in other ships, and purchased by the owners, and sailed, on or before the 7th June, upon a destination to Bilboa. Among the papers was a certificate from the collector of the customs, "that this vessel had entered and landed a cargo of cocoa, belonging to Messrs. W. & N. Hooper, and that the duties had been secured agreeable to law, and that the said cargo had been reshipped on board this vessel, bound for Bilboa; and that her cargo, consisting of cocoa, sugar, and fish, was the property of the said W. & N. Hooper."

On the 7th May, 1804, the cause came on to be heard before the Lords of Appeal, upon the original evidence, when the case was argued on the principle of continuity, and the application of that principle to the circumstances of the present case, by the King's Advocate and the Attorney General, on the part of the captor, and by Mr. Dallas and Dr. Arnold, on the part of the appellant. The Lords "pronounced for the appeal, reversed the sentence appealed from, and retained the principal cause, therein admitted the claim for the ship and cargo, pronounced the said cargo, except seventy hogsheads of cocoa and five bags of cocoa, to have belonged as claimed, and dismissed the bail given in the court below to answer the appeal in respect thereto; but directed farther proof to be made of the importation of the said cocoa into, and exportation from, the port of Marblehead, in America, and the payment of duties thereon, within nine months."

41 See Charles B. Elliott's Doctrine of Continuous Voyages, 1 American Journal of International Law (1907) 61; Lester H. Woolsey's Early Cases on the Doctrine of Continuous Voyages, Id. IV 823 (1910).

In obedience to that decree farther proof was exhibited, consisting of sundry documents.

On this proof the cause was farther argued; and, on the 11th March, 1806, the judgment of the Court of Appeal was delivered by the Right Honorable Sir William Grant, Master of the Rolls, in the following terms:

Sir WILLIAM GRANT.42 The question in this case is, whether that part of the cargo which has been the subject of further proof, and which, it is admitted, was, at the time of the capture, going to Spain, is to be considered as coming directly from Laguira, within the meaning of his Majesty's instructions. According to our understanding of the law, it is only from those instructions that neutrals derive any right of carrying on with the colonies of our enemies, in time of war, a trade from which they were excluded in time of peace. The instructions had not permitted the direct trade between the hostile colony and its mother country, but had, on the contrary, ordered all vessels engaged in it to be brought in for lawful adjudication; and what the present claimants accordingly maintain, is not that they could carry the produce of Laguira directly to Spain; but that they were not so carrying the cargo in question, inasmuch as the voyage in which it was taken was a voyage from North America, and not directly from a colony of Spain.

What then, with reference to this subject, is to be considered as a direct voyage from one place to another? Nobody has ever supposed that a mere deviation from the straightest and shortest course, in which the voyage could be performed, would change its denomination, and make it cease to be a direct one within the intendment of the instructions. Nothing can depend on the degree or the direction of the deviation, whether it be of more or fewer leagues, whether towards the coast of Africa, or towards that of America. Neither will it be contended that the point from which the commencement of a voyage is to be reckoned changes as often as the ship stops in the course of it; nor will it the more change, because a party may choose arbitrarily by the ship's papers, or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of shifting the cargo from the ship to the shore, and from the shore back again into the ship, does not necessarily amount to the termination of one voyage and the commencement of another. It may be wholly unconnected with any purpose of importation into the place where it is done. Supposing the landing to be merely for the purpose of airing or drying the goods, or of repairing the ship, would any man think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to

42 Part of the opinion is omitted.

begin at some other place than that of the original lading, and that he, therefore, lands the cargo purely and solely for the purpose of enabling himself to affirm, that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment, notwithstanding the attempt to give it the appearance of having begun from a different place?

The truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction, that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have been ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence, to show the purpose for which the acts were done; but if the evasive purpose be admitted or proved, we can never be bound to accept as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended, and the colourable importation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same; but there is this difference between them. The landing of the cargo, the entry at the custom-house, and the payment of such duties. as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of the owner cannot be effected without them. But in a fictitious importation they are mere voluntary ceremonies, which have no natural connection whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage which he has resolved to continue, the appearance of being broken by an importation, which he has resolved not really to make.

Now, what is the case immediately before us? The cargo in question was taken on board at Laguira. It was at the time of the capture proceeding to Spain; but the ship had touched at an American port. The cargo was landed and entered at the custom-house, and a bond was given for duties to the amount of 1,239 dollars. The cargo was re-shipped, and a debenture for 1,211 dollars by way of drawback was obtained. All this passed in the course of a few days. The vessel arrived at Marblehead on the 29th of May; on that day the bond for securing the duties was given. On the 30th and 31st the goods were landed, weighed, and packed. The permit to ship them is dated the 1st of June, and on the 3d of June the vessel is cleared out as laden, and ready to proceed to sea. We are frequently obliged to collect the purpose from the circumstances of the transaction.