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Court's Opinion: Justice Gray delivered the
majority opinion of the Court:
These are two appeals from decrees of the district court of the
United States for the southern district of Florida condemning
two fishing vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana,
and regularly engaged in fishing on the coast of Cuba; sailed
under the Spanish flag; was owned by a Spanish subject of Cuban
birth, living in the city of Havana; was commanded by a subject
of Spain, also residing in Havana; and her master and crew had
no interest in the vessel, but were entitled to shares, amounting
in all to two thirds, of her catch, the other third belonging
to her owner. Her cargo consisted of fresh fish, caught by her
crew from the sea, put on board as they were caught, and kept
and sold alive. Until stopped by the blockading squadron she
had no knowledge of the existence of the war or of any blockade.
She had no arms or ammunition on board, and made no attempt to
run the blockade after she knew of its existence, nor any resistance
at the time of the capture.
Both the fishing vessels were brought by their captors into
Key West. A libel [the plaintiff's complaint asked] for the condemnation
of each vessel and her cargo as prize of war [permitting the
capture at sea of enemy property] was there filed on April 27,
1898; a claim was interposed by her master on behalf of himself
and the other members of the crew, and of her owner; evidence
was taken, showing the facts above stated; and on May 30, 1898,
a final decree of condemnation and sale was entered, "the
court not being satisfied that, as a matter of law, without any
ordinance, treaty, or proclamation, fishing vessels of this class
are exempt from seizure."
We are then brought to the consideration of the question whether,
upon the facts appearing in these records, the fishing smacks
were subject to capture by the armed vessels of the United States
during the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law,
coast fishing vessels, pursuing their vocation of catching and
bringing in fresh fish, have been recognized as exempt, with
their cargoes and crews, from capture as prize of war.
This doctrine, however, has been earnestly contested at the
bar; and no complete collection of the instances illustrating
it is to be found, so far as we are aware, in a single published
work, although many are referred to and discussed by the writers
on international law.
It is therefore worth the while to trace the history of the
rule, from the earliest accessible sources, through the increasing
recognition of it, with occasional setbacks, to what we may now
justly consider as its final establishment in our own country
and generally throughout the civilized world.
[The Court next discussed the history of the custom allegedly
exempting coastal fishers from capture in this scenario. This
analysis commenced with King Henry IV's orders to his admirals
in 1403 and then examined the relevant practices of France, Holland,
Prussia, and the US.]
Since the English orders in [the] council of 1806 and 1810
. . . in favor of fishing vessels employed in catching and bringing
to market fresh fish, no instance has been found in which the
exemption from capture of private coast fishing vessels honestly
pursuing their peaceful industry has been denied by England or
by any other nation. And the Empire of Japan (the last state
admitted into the rank of civilized nations), by an ordinance
promulgated at the beginning of its war with China in August,
1894, established prize courts, and ordained that "the following
enemy's vessels are exempt from detention," including in
the exemption "boats engaged in coast fisheries," as
well as "ships engaged exclusively on a voyage of scientific
discovery, philanthropy, or religious mission." Takahashi,
International Law, 11, 178.
International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction
as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience
have made themselves peculiarly well acquainted with the subjects
of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the
law ought to be, but for trustworthy evidence of what the law
really is.
This review of the precedents and authorities on the subject
appears to us abundantly to demonstrate that at the present day,
by the general consent of the civilized nations of the world,
and independently of any express treaty or other public act,
it is an established rule of international law, founded on considerations
of humanity to a poor and industrious order of men, and of the
mutual convenience of belligerent states, that coast fishing
vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching
and bringing in fresh fish, are exempt from capture as prize
of war.
The exemption, of course, does not apply to coast fishermen
or their vessels if employed for a warlike purpose, or in such
a way as to give aid or information to the enemy; nor when military
or naval operations create a necessity to which all private interests
must give way.
On April 26, 1898, the [US] President issued another proclamation
which, after reciting the existence of the war as declared by
Congress, contained this further recital: "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." This recital was followed by specific declarations
of certain rules for the conduct of the war by sea, [although]
making no mention of fishing vessels. 30 Stat. at L. 1770. But
the proclamation clearly manifests the general policy of the
government to conduct the war in accordance with the principles
of international law sanctioned by the recent practice of nations.
[The case then summarized the US admiral's argument in
support of his seizure of The Paquete Habana and The Lola. The
sailors of the two seized vessels were members of the naval military
reserves of Spain and were capable artillerymen. The majority
of the Court concentrated, however, on the existence of a general
custom against the capture of such vessels.]
The two vessels and their cargoes were condemned by the district
court as prize of war; the vessels were sold under its decrees;
and it does not appear what became of the fresh fish of which
their cargoes consisted.
Upon the facts proved in either case [involving the vessels Paquete
Habana and Lola], it is the duty of this court, sitting as the
highest prize court of the United States, and administering the
law of nations, to declare and adjudge that the capture was unlawful
and without probable cause; and it is therefore, in each case–
Ordered, that the decree of the District Court be reversed,
and the proceeds of the sale of the vessel, together with the
proceeds of any sale of her cargo, be restored to the claimant
[captain and crew], with damages and costs.
[The relevant portion of the dissenting opinion of three
Supreme Court justices who heard this case follows. They would
have affirmed the seizure under the US Law of Prize because the
custom relied on by the majority was not binding on the US: The
President could decide not to use the international rules of
war at any time. It also was not as clear to the dissenters that
this custom of exempting coastal fishers had the degree of international
recognition accorded it by the majority.]
[We are] unable to conclude that there is any such established
international rule, or that this court can properly revise action
which must be treated as having been taken in the ordinary exercise
of discretion in the conduct of war.
It cannot be maintained "that modern usage constitutes
a rule which acts directly upon the thing itself by its own force,
and not through the sovereign power" [quoting from Brown
below]. That position was disallowed in Brown v. United States,
and Chief Justice Marshall said:
.....This usage is a guide which
the sovereign follows or abandons at his will. The rule, like
other precepts of morality, of humanity, and even of wisdom,
is addressed to the judgment of the sovereign; and although it
cannot be disregarded by him without obloquy, yet it may be disregarded.
The rule is in its nature flexible. It is subject to infinite
modification. It is not an immutable rule of law, but depends
on political considerations which may continually vary.
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