V

THE STEAMSHIP STYRIA, Antonio G. 2. No duty to reship a lot of sulphur properly

THE STEAMSHIP STYRIA, Antonio G. Argued and Submitted November 22, 25,

afterwards relanded at the port of shipment | other telegram directing him "to discharge because it had become contraband of war. whole cargo as quickly as possible." The The facts were substantially undisputed, and were as follows:

The Styria was an Austrian steamship, owned by the Austro-Americana Steamship Company, and Burrill & Sons of Glasgow were her managing agents. She sailed April 16, 1898, with some cargo, from Trieste via Sicilian ports for New York, and on April 21 reached Port Empedocle, Sicily, her second loading port. Her master began at once to load on board the sulphur in question, and by April 24 it was all on board, bills of lading therefor (containing the provisions copied in the margint) had been signed, and the vessel cleared from the custom-house, and ready to proceed on her voyage to Messina and Palermo for a cargo of fruit, and thence to New York.

In the meantime, unknown to the master, war had broken out between the United States and Spain. On April 20, Congress joint re passed, and the President approved, the resolution recognizing the freedom and

independence of Cul Cuba, and demanding that the government of Spain relinquish its authority in the island and withdraw its land and naval forces. 30 Stat. at L. 738. On the same day the Spanish minister in Washington demanded and received his passports. [3]On April 21, the American *minister at Madrid was informed that the diplomatic relations between the two governments were broken off, and he left that same day. On April 22, the first overt act of war, the cap ture of the Spanish merchant steamship, the Buena Ventura, was committed. The Buena Ventura, 175 U. S. 384, sub nom. The Buena Ventura v. United States, 44 L. ed. 206, 20 Sup. Ct. Rep. 148. On April 25, Congress passed an act declaring that war had existed since April 21. 30 Stat. at L. 364, chap. 189. On April 23, the Queen Regent of Spain issued a decree announcing the existence of war with the United States; authorizing the Royal Navy, "in order to capture the enemy's ships, to confiscate the enemy's merchandise under their own flag. and contraband of war under any flag," to exercise the right of search on the high seas and in the territorial waters of the enemy: including, under the denomination of contraband, "powder, sulphur, saltpetre, dynamite, and every kind of explosive;" and charging the Minister of State and the Min ister of Marine with the fulfilment of this

decree.

On April 23, the master of the Styria reStyria ceived a telegram from Burrill & Sons, her managing agents, directing. him not to sail until further orders; and on April 25 an

To be delivered at the port of New York, "restraints of princes and rulers or people" and other specified perils "excepted; with liberty (In event of steamer putting back to this, or Into any other port, or otherwise being prevented from any cause from commencing or proceeding in the ordinary course of her voytage) to ship or transship the goods by any other steamer."

"In case of blockade or interdict of the port of discharge, or if, without such blockade or interdict, the master shall consider it unsafe, for

master had by this time learned that war
existed, and that sulphur was contraband.
He knew that his course would take him
within a few miles of the Spanish coast, in
order to sight the lighthouses; and he had
seen in an Italian newspaper that Spanish
men-of-war were looking for contraband
goods, and that a sulphur ship had been
taken. In obedience to the instructions
from the managing agents, as well as be
cause he saw in the newspapers that the
sulphur was contraband of war and he con-
sidered it unsafe to carry it, the master be-
gan to reland the sulphur at Port Empe
docle on April 27, and had it all unloaded
and warehoused by May 7. At the begin-
ning of the unloading on April 27, he gave
notice in writing to the shippers, and to the
consignees named in the bills of lading, that
"on finding risky my passage to New York
with the actual sulphur cargo, for facts of
war," he was discharging the cargo for the
account and risk of the shippers, "under
care of the mercantile agent, Mr. William

Peirce, depositing the same in the "ware-[4]
houses of Mr. Zenobia Urso here, and, if
these are not sufficient, in the warehouses of
the British consulate, faculty which I have
in force in the bills of lading." On the
same day he gave notice in writing to the
Austrian consul at Girgenti "that, by order
of the representative of my owners, for facts
of war," he was discharging and warehouse-
ing the sulphur from the Styria, for whom
it might concern; and also gave notice in
writing, through the Austrian consul, to the
director general of the customs at Girgenti,
that, having loaded the sulphur on the Sty-
ria, "and sulphur being declared contraband
of war, war actually existing between Spain
and the United States of America, in behalf
of the present laws, I deem it in the inter-
est of all whom it might concern to dis-
charge the whole sulphur here on receiving
the necessary permit from the customs;"
and asking that duties might be remitted on
reshipment. On April 30 and May 2, the
shippers of the sulphur protested against
the unloading; and on May 3 and 5, respect-
ively, the master replied that he, "in dis-
charging the goods, acted as was his right,
and in the best interest of the goods, which
is confirmed by the fact, published in the
papers, and discussed in the Italian Parlia-
ment, that sulphur had been declared con-
traband of war by one of the belligerent pow-
ers." And at the conclusion of the unload-
ing, on May 7, the master gave notice to
the shippers that, as soon as they paid the
expense incurred on their account, the sul-
any reason, to enter or discharge cargo there,
he is to have option of landing the goods at
any other port which he may consider safe, at
shipper's risk and expense, and on the goods
being placed in charge of any mercantile agent
or of British consul, and a letter being put into
the postoffice, addressed to the shipper and con-
signee,. If named, stating the landing and with
whom deposited, the goods to be at the ship-
per's risk and expense, and the master and own-
ers discharged from all responsibility."

phur would be delivered to them; and to the consignees that the sulphur was lying in the warehouses at Port Empedocle, at the risk and expense of whom it might concern.

The exportation of sulphur is one of the principal industries of the island of Sicily, and immediately after the declaration of war Sicilian merchants urged the Italian government to request Spain to exempt it from the list of contraband. The Giornale di Sicilia, a newspaper of Palermo, each is sue of which had a double date, and was read by the master of the Styria on the day of its publication, contained, according to the translations in the record, the following information on the subject: On April 24

ative to the free navigation of cargoes of sulphur."

The Giornale di Sicilia of May 5-6, 1898, contained, under *the heading "Sulphur is [6] not War Contraband," the following: "From the Minister of Agriculture, Industry, and Commerce, the following telegram has been sent: 'Chamber of Commerce, Palermo: I inform the Chamber of Commerce, for the useful information of merchants, that by the decree of April 23d of the Spanish government are considered, as contra-, band of war, arms, projectiles, fuses, powder, sulphur, nitre, dynamite, explosives, uniforms, ornaments, saddles, engines for ships, derricks, screws, boilers, and all that

25, 1898, it was stated that the merchants is necessary for the construction, repair, of Messina had requested their deputy in and armament of men of war. I would also

state that, in consequence of our request, the Spanish government has given notice to the commanders of its vessels to let sulphur pass free.

"The Minister, Coeco Ortu.'"

The master also testified that on the evening of May 7 he saw a notice from the Austrian consul, saying that there had been a communication from the prefect that it was agreed between Spain and Italy that the Spanish ships had instructions to let sulphur go free; but "it was not given officially, only a matter of verbal arrangement, Of course, the verbal arrangement you can't believe."

[5]the Italian Parliament to urge the government to induce Spain to exclude sulphur from being considered contraband of war; and that the deputy had been assured that the Minister for Foreign Affairs would telegraph to the Italian ambassador in Madrid to obtain what was required from the Spanish authorities. On April 26-27, it was stated that Spain included sulphur in the list of contraband of war, and that the Italian Council of Ministers had decided to induce Spain to revoke its decision. On April 27-28, it was stated that an Italian deputy had asked the Minister of Foreign Affairs in Parliament whether sulphur had been excluded from the list of contraband of war. On April 29-30, it was stated that the Spanish government had not yet pronounced itself upon the Italian demand to exclude sulphur from the list of contraband of war; that the Italian ambassador had been promised an immediate decision; that the Spanish Minister of Marine seemed decidedly adverse to the demand; but that it was hoped it would be conceded. The paper of May 1-2 contained, under date of May 1, from an anonymous correspondent at Rome, these statements: "Although the official advice tion confirms to us that the exportation of

has not yet arrived, I assure you absolutely

Early in the morning of May 8, the master sailed, without the sulphur, to Palermo, and thence to Messina, took on board at each place a cargo of fruit, and on June 3 arrived at New York. Soon after the arrival there, these libels were filed.

The Giornale di Sicilia of May 7-8, 18981 (which did not reach the master before he sailed from Port Empedocle), contained, under the heading "The Exportation of Sulphur may be continued," the following: "The Prefettura also with its communicasulphur, notwithstanding the Spanish-Am

that the Spanish government has deter- erican war, may continue. Indeed, the Span

mined to exclude sulphur from the list of contraband of war. The Popolo Romano, confirming my information, says that the relative decree is imminent which has been provoked by the insistence of our ambassador in Madrid, who obtained from Sagasta that he should unite the Council of Ministers, in which, notwithstanding the opposition of the Minister of Marine, the opinion prevailed to exclude sulphur from contraband." The Official Gazette will publish the decision regarding sulphur. Meantime the Spanish government has already ordered the commanders of its ships to allow sulphur to pass free." The paper of May 3-4 contained, under date of May 3, from its Roman correspondent, this statement: "The Department of Foreign Affairs decided not to publish in the Official Gazette the Spanish government's decision regarding the exclusion of sulphur from contraband of war. But the Minister of the Interior sent a circular to all the prefects in Sicily, informing them of the orders rel

ish government has officially declared, in the circular to the commandants of their ships, that sulphur is not to be considered as contraband of war. An official and public declaration is lacking, but there is no doubt that sulphur will pass freely."

1

On May 10, 1898, the Foreign Office in London, answering a telegram from Burrill & Sons, wrote them: "Spanish government state that decree already issued cannot be altered, but that *as temporary measure [7] Naval Departments have been ordered not to treat sulphur as contraband of war. They

lay stress on the fact that the measure is temporary only."

It appeared from inquiries made by the Foreign Office in London, and by the American Embassy in Italy, in June and July, 1898. that the actual state of facts was as follows: The Spanish Minister for Foreign

at

Affairs verbally stated to the Italian ambassador at Madrid, on April 29, 1898, and to the British ambassador Madrid, on May 6, 1898, that while the decree of April 23 could not be altered.