F. W. Seward to Mr. Hovey.
Sir: I have to acknowledge the receipt of your despatch No. 16, of the 21st April, 1866, enclosing a copy of your letter of the same date to Captain Paulding, of the steamer Wateree, in relation to the capture of the ship Odessa.
Your recommendation to Captain Paulding to release the Odessa is approved. Whatever might be the liability of the cargo of that vessel to seizure as contraband of war, or of the ship itself to confiscation by the authorities of Peru or of Chili, it is not the province of our navy to interfere with either.
I think that in discussing the questions whether the cargo was contraband, or the ship confiscable, you have fallen into an error in your references to our former treaties with Peru and Chili. Both of them have expired by notice given, in accordance with their provisions in that respect. The questions, therefore, stand upon the general principles of international law.
It appears from your statement that the Odessa, a registered American vessel, was cleared from Montevideo on the 21st of December last, when a Spanish fleet was hovering upon the coast of Chili, then and now in a state of war with Spain, under a charter by a merchant of Montevideo to carry 400 tons of coal, and 300 tons of wine, biscuit, beef, pork, rice, beans, sugar, coffee, &c., to the offing of the port of Valparaiso, and that the cargo was delivered, by direction of an agent of the ship’s charterer, in the offing of Valparaiso, on board of a [Page 642] vessel belonging to the marine of Spain. It does not appear by whom the cargo was owned, nor to what extent, if any, it was the produce of the United States.
The question raised upon these facts is not simply whether the cargo, in whole or in part, comes within the description of articles generally contraband of war. They appear to involve the right of a neutral, without liability to confiscation of ship or cargo, to carry supplies to the naval forces of one belligerent cruising with hostile aims upon the coast of another, or blockading its ports. In the case of the Commercer, (1 Wheaton R., 387,) which was a Swedish vessel seized for carrying provisions to an army of Great Britain (with whom we were then at war) operating in Spain, the Supreme Court of the United States observed, that by the modern law of nations, provisions were not generally contraband, but they might become so on account of the particular situation of the war, or on account of their destination; that if they were destined for the ordinary use of life in the enemy’s country, they were not contraband, but that it was otherwise if destined for the army or navy of the enemy, or for his ports of military or naval equipment. In delivering the opinion of the court, Judge Story said: “Would it be contended that a neutral might lawfully transport provisions for the British fleet and army while it lay at Bordeaux preparing for an expedition to the United States? Would it be contended that he might lawfully supply a British fleet stationed on our coast? We presume that two opinions could not be entertained on such questions, and yet, though the cases put are strong, we do not know that the assistance is more material than might be supplied under cover of a neutral destination like the present.”
In such a case as the present may well turn out to be, upon our imperfect information of it, we are not prepared to say that Chili or Peru (her ally against Spain) would not be warranted in forfeiting the vessel, though seized after it had accomplished its purpose in giving direct aid to the hostile armament.
If a vessel shall be seized under such circumstances as are indicated in the judgment against the Commercer, we may perhaps find it to be our duty to await the decision of the prize courts of the belligerent captors before we determine to offer remonstrances.
I am, sir, your obedient servant,
Alvin P. Hovey, Esq., &c., &c., &c.