The enclosed memorandum or report on the case, which has been prepared by
my direction, after taking into consideration not only your despatch No.
196, but also the whole of your previous correspondence with this
department upon the same subject, will, with the instructions hitherto
given you, govern your future proceedings in the conduct of the case as
it at present stands, and it is sincerely hoped that you will be
enabled, by adopting the suggestions made in the report now transmitted
you, to bring the question to a successful and amicable termination.
Your despatch No. 198, of the 27th ultimo, has likewise been received,
and for which you have my thanks.
Memorandum as to the case of the steamer
Washington, condemned, in the first instance, by the supreme
court of Ecuador as lawful prize of war.
The parties complaining of the detention and use by the Ecuadorian
government of the Washington are American citizens long domiciled in
its territory, and owning less than one-half of the vessel, the
remaining interest being owned by native citizens of Ecuador.
The vessel is employed not in maritime commerce, but in an internal
river traffic, and is therefore peculiarly subject to the municipal
law of Ecuador.
The steamer was admittedly engaged in hostility to Ecuador, and was
captured in actual fight.
Her condemnation is based on these facts, and, if correct,
establishes a title which relates to the time of the capture.
We may dismiss all consideration of the use of the steamer,
intermediate the capture and condemnation. If the latter is valid,
it justifies that use; if not, the claimants are entitled to the
value of the vessel when converted.
So we may dismiss all consideration of the delay in bringing on the
trial and decision. If there was any wrong in this, it is merged in
the greater one.
Upon the conceded facts thus far stated the propriety of the
condemnation admits of no serious question.
It is said, however, that restitution to the owners should have been
decreed because the Washington passed into the hostile service by
the barratry of her master; and second, that the seizure and
employment of her by the insurgents were piratical.
It is not denied that the master of the Washington was in conspiraçy
with the revolutionists, to whom he voluntarily surrendered her.
Assuming that the owners of the steamer were guiltless of any
complicity with the master, the question is, how does his conduct,
criminal, both as respects the Ecuadorian government and the owners,
affect the rights of the latter?
It is doubtless true that the owners of a ship are often held
responsible for offences committed by the master against belligerent
rights, so as to involve the forfeiture of the vessel, and sometimes
even personal damages in addition, although they neither commanded
nor knew of them.
I think, however, that such cases will be found to have in them this
element, viz: that the acts were such as the master could have
supposed himself to be doing in the course of his general
employment, and in the interest of his owners. The abandonment of
the ship to the pirates, or to mere insurgents, can hardly be
brought into this category. Then these are maritime instances, and it seems to me there is such a
difference between the very large authority and discretion
necessarily intrusted to the master of a sea-going vessel, and that
which suffices for short river voyages, as to justify a
corresponding distinction in the liability of the owners for his
acts. At sea, out of reach of his owners and of courts, he may be
taken to represent them in a much ampler sense than on a river.
I am bound to say, however, that this view of the case does not
strike me as so irresistible that I could characterize an opposite
determination by any judicial tribunal as manifesting such flagrant
disregard of law and justice as to lose its title to respect and
submission.
Let us suppose that we had permitted a steamer owned about half by
English residents of Baltimore, and commanded by such a resident, to
ply between that port and City Point at the time of the outbreak of
the late rebellion; the steamer to have been surrendered by him to
rebels in the James river; to have been armed by them, and to have
captured one of our small cruisers in the Potomac; to have been
subsequently captured by us and brought before a prize court. The
evidence wholly failing to inculpate the owners, who intervene and
ask a restitution of the vessel, the court may be supposed to
say:
Public policy requires that those who intrust a steamer, capable of
the mischief which this has wrought, with the power to put her into
a position to do that mischief, should be answerable for the
consequences of his acts, though not contemplated or approved by
them. True, we find no evidence of their complicity, and this act,
as it turns out, was manifestly opposed to their interests; but if
the captain was acting in conformity with their secret instructions,
or with their real, though unexpected, desire, it would always be a
matter of the greatest ease to conceal the proofs. A consideration
of the general interest, in having a plain rule capable of ready
practical application, must override that of occasional hardship to
the innocent.
Would such a decision be so manifestly outrageous as to authorize
Great Britain to declare that it could not have proceeded from error, but must have been dictated by
interest, malice, or wilful disregard of universal principles of
justice? I think not.
I attribute no consequence whatever to the fact that the Ecuadorian
government denounced the seizure as piratical, nor does it seem important to inquire whether,
in truth, it was piratical, either under the municipal law or the
law of nations. It was a naval operation for a political
insurrection. That it so overstepped the limits which nations
prescribe to themselves in the prosecution of war as to be piratical also, does not seem to me so to
restrict the rights which the capturing government may assert in its
discretion, or waive in its generosity.
This, I think, disposes of any question under article 10 of our
treaty with Ecuador; that must, I think, be understood to refer to
cases of simple piracy, unconnected with insurrection or
belligerency in any form.
[Page 456]
I understand the rule to be that before a nation intervenes in behalf
of its citizens domiciled abroad, whose rights have been passed upon
by a judicial tribunal, it is required: 1st. That he should have
defended those rights himself, and done what
was in his power to enlighten the court; 2d. That he should
prosecute the case through all the appellate tribunals to that of
last resort, so that it may appear that no further remedy is left to
him in the courts; 3d. That the final decision should be not merely
erroneous, but so flagrant as to shock the moral sense, and beget
the conviction that the court cannot be supposed to have acted from
mistake of judgment, but have wilfully disregarded plain rights.
Our citizens who go to reside under foreign jurisdictions, go there
to take such law and such modes of administering it as are dealt to
native subjects, however imperfect they may be, except in such
countries as China, Japan, &c., where special treaties relieve
them of the obligation.
In this case there is no pretence that the injustice alleged is aimed
at American citizens, as such, for a majority of the owners of the
Washington are Ecuadorians.
On the whole, I think that our minister should desist from further
discussion until, after final judgment in the court of last resort,
he has reported its decision and the reasons it may assign, and has
received such instructions as the case may then seem to require.
If it were practicable to advise the American owners of the
Washington, I should recommend them to offer
to the Ecuadorian government the same salvage (one-third of the
value) which that government offered for the recapture of its war
ship captured by the Washington, and ask restitution on those terms
before the prize court had reviewed the judgment in the first
instance. It is unreasonable (dismissing all
question of legal right) that the government should bear the expense
of restoring to the owners a ship of which they had been deprived
by their own agent. The salvage is,
probably, quite insufficient to reimburse Ecuador for the expenses
to which it has been subjected.
Approved.
