The Paquete Habana and The Lola
.....SUPREME COURT OF THE UNITED STATES
......175 US 677, 20 S.Ct. 290, 44 L. Ed. 320 (1900)

Author's Note: The American press attributed the sinking of the USS Maine to a bomb planted aboard it by Spanish forces, while the warship was at anchor in Havana, Cuba. During the ensuing Spanish-American War of 1898, US vessels patrolled Cuban waters to monitor activities which might aid Spain. The US Navy seized two coastal fishing vessels near the coast of Cuba. One was The Paquete Habana. The other was The Lola.

The prize courts of nations at war typically assess the lawfulness of the military seizure of a foreign vessel. A "prize" is a captured enemy or neutral vessel, suspected of carrying materials to aid the enemy. The trial judge examined US domestic law to determine the validity of the seizure, based on presidential executive decrees regarding the Law of Prize. The issue for the court to decide was whether the US should return these fishing vessels and their cargoes to their owners and crew members who were entitled to a percentage of the catch. The intermediate court upheld the trial judge's approval of the US seizure of these coastal fishing vessels. The US Supreme Court majority opinion (below) surveyed how other nations answered such questions when a seizure allegedly violated the Law of Nations.

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. 

Notes & Questions
1. The Paquete Habana case analyzed the following issues relating to principles of Customary International Law:
.....(a) In what way was International Law deemed to be a part of the law of the United States?
.....(b) Which international custom was applied to this dispute?
.....(c) How did the judicial decision maker determine the existence of that custom?

2. The dissenting members of the Court minimized the impact of customary practice, based on what the US President may say in future executive orders about the applicability of International Law to the conduct of naval blockades. These judges would not have applied the exemption from capture under international custom, because the President had the power to order other admirals not to conduct a war in accordance with International Law. Which was more credible–the Court's majority or dissenting opinion?