THE BENITO ESTENGER, 176 U. S. 568 (1900)

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U.S. Supreme Court

The Benito Estenger, 176 U.S. 568 (1900)

The Benito Estenger

No. 192.

Argued January 11-12, 1900

Decided March 5, 1900

176 U.S. 568


The general rule is that, in time of war, the citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions, and that political status determines the question of enemy ownership.

By the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal consequences.

Provisions are not, in general, deemed contraband, but they may become so if destined for the army or navy of the enemy, or his ports of naval or military equipment.

In dealing with a vessel asserted to be an enemy vessel, the fact of trade with the enemy in supplies necessary for the enemy's forces is of decisive importance.

Page 176 U. S. 569

Individual acts of friendship cannot change political status where there is no open adherence to the opposite cause and former allegiance remains apparently unchanged.

A consul has no authority, by reason of his official station, to grant exemption from capture to an enemy vessel, and this vessel was not entitled to protection by reason of any engagement with the United States.

In cases of peculiar hardship or calling for liberal treatment, it is not for the courts, but for another department of the government, to extend such amelioration as the particular instance may demand.

Transfers of vessels flagrante bello cannot be sustained if subjected to any condition by which the vendor retains an interest in the vessel or its profits, a control over it, or a right to its restoration at the close of the war.

The burden of proof in respect of the validity of such transfers is on the claimant, and the Court holds, as to the transfer in this case, that the requirements of the law of prize were not satisfied by the proofs.

The Benito Estenger was captured by the U.S.S. Hornet on June 27, 1898, off Cape Cruz on the south side of the Island of Cuba, and was brought into the port of Key West and duly libelled on July 2. The depositions in preparatorio of Badamero Perez, Edwin Cole, and Enrique de Messa were taken, and thereafter and on July 27, a claim was interposed by Perez as master of the steamer on behalf of Arthur Elliott Beattie, a British subject, as owner, supported by test affidavits of himself and de Messa. The cause was preliminarily heard on the libel, the depositions in preparatorio and the test affidavits, and sixty days given for further proofs. Accordingly, the depositions of the claimant and sundry others were taken on behalf of the claimant, and the testimony of the consul of the United States at Kingston on behalf of the captor . The cause coming on for final hearing, the court entered a decree December 7, 1898, condemning the vessel as lawful prize as enemy property and ordering her to be sold in accordance with law. Claimant thereupon appealed, and assigned errors to the effect in substance that the court erred in failing to hold that the Benito Estenger was a British merchant ship, duly documented and entitled to the protection of the British flag, and lawfully owned and registered by a subject domiciled in Great Britain, and also in holding that the Benito Estenger was lawful prize of war inasmuch as she was engaged on a voyage in

Page 176 U. S. 570

behalf of the local Cuban junta in Kingston, allies of the United States, and when captured was in the service of the United States, and employed in friendly offices to the forces of the United States. The vessel, prior to June 9, 1898, was the property of Enrique de Messa, of the firm of Gallego, de Messa & Company, subjects of Spain and residents of Cuba. On that day, a bill of sale was made by de Messa to the claimant, Beattie, a British subject, and, on compliance with the requirements of the British law governing registration, was registered as a British vessel in the port of Kingston, Jamaica. The vessel had been engaged in trading with the Island of Cuba, and more particularly between Kingston and Montego, Jamaica, and Manzanillo, Cuba. She left Kingston on the 23d of June, and proceeded with a cargo of flour, rice, cornmeal, and coffee to Manzanillo, where the cargo was discharged. She cleared from Manzanillo at 2 o'clock A.M., June 27, for Montego, and then for Kingston, and was captured at half-past five of that day off Cape Cruz. The principal question was as to the ownership of the vessel and the legality of the alleged transfer, but other collateral questions were raised in respect of the alleged Cuban sympathies of de Messa; service on behalf of the Cuban insurgents in the United States, and the relation of the United States consul to the transactions which preceded the seizure. It was argued that the vessels of Cuban insurgents and other adherents could not be deemed property of the enemies of the United States; that this capture could not be sustained on the ground that the vessel was such property; that the conduct of de Messa in his sale to Beattie was lawful, justifiable, and the only means of protecting the vessel as neutral property from Spanish seizure, and finally that this Court could and should do justice by ordering restitution, under all the circumstances of the case.

Page 176 U. S. 571

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