Deposition the purser.

passports. I replied, no.
board for our voyage had
legal to the prize master.
not including in the documents two Spanish bills of health,
one from Port au Prince and one from Cape Haytien,
which we found in opening our papers, although they had
not been demanded. Not having any value for us, I said
to the steward to destroy them on our arrival at Charles-
ton, as we often do with papers that are useless to us.
The regular expedition only counts from the last port,
which was Puerto Plata, and I refused to take it from our
agent for Porto Rico. I swear that at my examination I
did not think of this, and it is only on my return from
signing that the steward recalled it to me. I never sought
to disguise the truth, since I wish to advise you of it as
soon as possible."

The papers-documents-on been delivered up proper and This is absolutely the truth,

66

of On the 5th of August the purser answered the inter-
rogatories, and testified that papers were given him by the
consignees of the steamer at Port au Prince in a box at the
time of sailing, and he found in the box one manifest of
freight in ballast, and it was the same thing at Cape Hay-
tien. At Puerto Plata the agent of the company came on
board on their arrival there, and "the captain told him
that there was no Spanish clearance; there was no need of
it, and it was not taken." The captain said to the agent
"it was not necessary, because we are not going to San
Juan, being notified of the blockade." When we arrive
in a port we put up a placard of the date of departure and
the time of sailing and the destination, and it was put up
by my personal order from the captain that we sailed for
St. Thomas directly, and it was fixed up in the night of
the 15th of July.
We were to start on the morn-
ing of the 16th, at 6 o'clock in the morning, the captain
saying he did not want to fall into the hands of the Amer-
ican cruisers during the night. The night before our
arrival in Charleston, the doctor says to me, 'I have a bill
of health, Spanish account, from Cape Haytien and Port
au Prince,' and I told him I would speak to the captain
and ask him what to do with these papers that I had
found in assorting my papers-these papers in the pigeon
holes. I told the captain that morning, and he told me
that we had better destroy them, because we don't want
them; that it is not our expedition, and that a true expo-
sition is valuable only for the last port to the Spanish
port."

the captain as to

On the 5th the captain was permitted to testify, in Testimony of explanation, saying, among other things: "The reason missing papers. that we did not give up the two bills of health is because they did not form a part of the clearance of our ship for our itinerary, and they were left in the pigeon holes where they were. It was at the time of our arrival at the quarantine at Charleston that the purser spoke to me of them, and I told him that they were good for nothing and to tear them up. The captain wishes to add that he did not remember the instance the other day about the destruction of the papers, that he has just told us about, and that he never had any intention to disguise anything or to deceive."

Counsel for the Government insist that the intention of the Olinde to run the blockade is necessarily to be inferred from the possession of these bills of health and their alleged concealment and destruction. Doubtless the spoliation of papers, and, though to a less degree, their concealment, is theoretically a serious offense, and authorizes the presumption of an intention to suppress incriminating evidence though this is not an irrebutable presumption.

tion and conceal

In The Pizarro, 2 Wheat. 227, 241, the rule is thus stated The Pizarro. by Mr. Justice Story: "Concealment, or even spoliation of papers is not of itself a sufficient ground for condemna-Story on spoliation in a prize court. It is, undoubtedly, a very awaken-ment of papers. ing circumstance, calculated to excite the vigilance, and to justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity or superior force; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile; if the cause labor under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply."

It should be remembered that the first deposition of the captain was given in answer to standing interrogatories, and not under an oral examination; that the statute (R. S. § 4622) forbade the witness "to see the interrogatories, documents, or papers, or to consult counsel, or with any persons interested, without special authority from the court;" that he was born and had always lived in France,

and was apparently not conversant with our language; indeed, he protested, as "neither understanding nor speaking English," "against all interpretation or translation contrary to my thought;" that the deposition having been reread to him the day after it was taken, he detected its want of fullness, and immediately wrote the prize commissioners on the subject with a view to correction; and that it was after this, and not before, that the purser testified. Transactions of this sort constitute in themselves no condemnation, ground for condemnation, but are evidence, more or less the existence of convincing, of the existence of such ground; yet, taking the evidence in this case together, we are not prepared to hold that the explanation as to how these bills came to be received on board, neglected when the papers were surrendered, and finally torn up, was not sufficient to obviate any decisive inference of objectionable intention.

Spoliation of papers in itself is no ground for

but evidence of

such ground.

The Government further insisted that the Olinde Rodrigues refused to obey the signal from the New Orleans to heave to and stop instantly, and turned only after she had fired, and that this conclusively established an intention to violate the blockade. The theory of the Government is that the French ship purposely held on so as to get under the protection of the batteries of San Juan.

It is impossible to deny that the testimony of Captain Folger, the commander of the New Orleans, and of his officers, was extremely strong and persuasive to establish that the Olinde Rodrigues when brought to, was intentionally heading for San Juan, and pursuing her course in such a manner as to draw the blockading cruiser in range of the enemies' batteries, and yet we must consider it in view of the evidence on behalf of the captured ship, and of the undisputed facts tending to render it improbable that any design of attempting to violate the blockade was entertained. The Olinde Rodrigues had neither passengers nor cargo for San Juan; in committing the offense, she would take the risk of capture or of being shut up in that port; she was a merchantman engaged in her regular business and carrying the mails; she was owned by a widely known and reputable company; her regular course, though interrupted by the blockade of that port, led directly by it, and not far from it; and the testimony of her captain and officers denied any intention to commit a breach.

The evidence of evil intent must be clear and convincing before a merchant ship belonging to citizens of a

friendly nation will be condemned. And on a careful review of the entire evidence, we think we are not compelled to proceed to that extremity.

But, on the other hand, we are bound to say that, taking all the circumstances together and giving due weight to the evidence on behalf of the captors, probable cause for making the capture undoubtedly existed; and the case disclosed does not commend this vessel to the favorable con sideration of the court.

for capture exists circum

Probable cause exists where there are circumstances Probable cause sufficient to warrant suspicion though it may turn out when stances warrant that the facts are not sufficient to warrant condemnation. suspicion. And whether they are or not cannot be determined unless the customary proceedings of prize are instituted and enforced.

*

This vessel had gone into San Juan on July 4, although the captain had heard of the blockade at St. Thomas, but he says he had not been officially notified of it; he telegraphed to the consul at San Juan to know, and was answered that they had received no official notice from Washington that the port was blockaded; he also heard while in San Juan that "it would be blockaded some future time, but that was not officially." The vessel was boarded and warned by the Yosemite on July 5, and the warning entered on her log. This imposed upon her the duty to avoid approaching San Juan, on her return, so nearly as to give just cause of suspicion, yet she so shaped her course as inevitably to invite it.

When the New Orleans succeeded the Yosemite her commander was informed of the facts by his predecessor, and knew that whatever the right of the Olinde Rodrigues to be in those waters, she could not lawfully place herself so near the interdicted port as to be able to break the blockade with impunity. But when he sighted her the ship was on a course to all appearance directly into that port, and steadily pursuing it. And when he signaled, the Olinde Rodrigues apparently did not obey, but seemingly persisted on her course, and that course would in a few moments have placed her within the range of the guns of Morro and of the shore batteries. In fact, when the shot was fired she was within the range of the Morro's guns. The evidence is overwhelming that she did not change her course until after the shot was fired, even though she may have stopped as soon as she saw the signal.

Résumé.

Judgment.

The turning point into the Culebra or Virgin Passage was perhaps forty miles to the eastward, and while she could have passed the port of San Juan on the course she was on, it would have been within a very short distance. The disregard of her duty to shun the port and not approach it was so flagrant that the intention to break the blockade was to be presumed though we do not hold that that was a presumption de jure.

The ship's log was not produced until three hours after she was boarded, and it now appears that the papers furnished the boarding officer, "said to be all the ship's papers," did not include two Spanish bills of health in which San Juan was entered as the vessel's destination. These were destroyed after the ship reached Charleston, and were, therefore, in the ship's possession when the other papers were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent? Or that their destruction tended to make a case of "strong and vehement suspicion?"

The entire record considered, we are of the opinion that restitution of the Olinde Rodrigues should be awarded, without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship.

The decree of the District Court will be so modified, and As modified affirmed. MR. JUSTICE MCKENNA dissented on the ground that the evidence justified condemnation.

CASE OF THE PEDRO.

[Vol. 175, United States Reports, p. 354. Decided December 11, 1899. Mr. CHIEF JUSTICE FULLER delivered the opinion of the court.]

This was 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

Cuba, approved joint resolution:

April 20, 1898.

"First. That the people of the Island of Cuba are, and of right ought to be, free and independent