If the position which I have assumed in my letter to Captain Paulding be
correct, this government has no right to make seizures, and, as I am
unable to correspond with the authorities here in relation to the
matter, I respectfully ask to be informed as to what course I shall
pursue under the circumstances.
Hon. William H. Seward,
Secretary of State, Washington, D. C.
Mr. Hovey to Captain Paulding.
Legation of the United
States,
Lima,
April 21, 1866.
Sir: I have duly considered the
circumstances under which you deemed it your duty to take possession
of the American ship Odessa.
Having examined the ship’s papers, I herewith return them, with my
opinion as to your future action in the case. As appears upon the
papers, the Odessa is an American-built ship,
[Page 634]
sailing under an American register.
She cleared from the port of Montevideo on the 21st December, 1865,
under a charter-party made 29th of November, 1865, between Albert B.
Nickles, captain of the Odessa, and Samuel Blixen, merchant, of
Montevideo, by whom she was chartered to carry 400 tons coals and
300 tons wine, biscuit, beef, pork, rice, beans, sugar, coffee,
&c., to the offing of the port of Valparaiso.
On the 10th of April, 1866, she was regularly cleared at the port of
Callao, and sailed thence for the Chincha islands.
From your statement made to me verbally, and from copies of your
correspondence with the intendente of the Chincha islands, it
further appears that on the—of April you seized the Odessa at the
Chinchas in behalf of the United States, for an alleged violation of
the neutrality laws existing between the United States government
and that of Chili.
You stated to me that the captain of the Odessa admitted to you that,
by order of an agent of the ship’s charterer, he delivered his cargo
in the offing of the port of Valparaiso, on board of a vessel
belonging to the marine of Spain, with which country Chili was at
war.
After seizing the vessel you communicate the fact to the intendente
at the Chincha islands, and apprise him of your intention to tow the
captured ship to the port of Callao, and to deliver her there to the
United States authorities.
In reply, the intendente informs you that he has not been officially
advised by superior authority, and requests you to take such action
as you may think needful, as well with the Odessa as with other
vessels suspected of the alleged offence.
Whereupon you bring the vessel to Callao for delivery to the United
States authorities, and submit the papers and statements to me for
my advice or action.
My opinion, in view of the facts, is as follows as to the question of
liability of seizure of vessel and cargo, and the penalty incurred
by the captain when delivering contraband goods:
It is a general principle as. settled in the United States, that
“neutrals may lawfully sell at home to a belligerent purchaser, or
themselves carry to belligerent powers, contraband articles, subject
to the right of seizure in transitu.” (I
Kent, p. 142.)
The cargo only is liable to seizure and
confiscation, unless the carrying has been connected with
aggravating and malignant circumstances, among which false
destination and false papers are considered the most heinous, in
which case the ship herself can be confiscated by the belligerent
party injured. But, by treaty with Chili, it is stipulated that the
contraband articles on board do not affect the ship. (I Kent, page
143, and note B; and Woolsey, p. 308, § 183.)
The general rule is, that “contraband articles must be taken in delictu and actual prosecution of the
voyage to any port, and the proceeds of the voyage cannot be
seized.” (Wheaton, International Law, p. 809)
The doctrine of the United States on the subject has always been the
same as that of Great Britain, namely, that neutral governments are
under no obligation to stop a contraband trade between their
subjects and a belligerent power, and that the only penalty of such
a trade is the liability of contraband shipments to be captured on
the high seas by the injured belligerent.
This opinion is based upon the supposition that the cargo delivered
by the Odessa was of contraband material.
I have examined our treaty with Chili of May 16, 1832, and with Peru
of July 26, 1851. In neither can I find that coals or provisions are
specified as contraband of war, and in both it is directly
stipulated that vessels carrying contraband shall not be forfeited.
In article 23, treaty with Peru, and article 16 of that with Chili,
both treaties expressly provide that all articles other than those
enumerated as contraband shall not be subject to seizure or
confiscation.
In view of these facts I would recommend that the Odessa be released,
and, together with her papers, (which I enclose,) be delivered to
her captain.
I have the honor to be your obedient servant,
Captain Leonard Paulding,
Commanding United States Steamer
Wateree.
