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this was not to be expected in taking the | taken." The captain said to the agent "it was depositions in preparatorio, and particularly not necessary because we are not going to as it was not the captain's own cablegram, San Juan, being notified of the blockade." but that of the agent at Cape Haytien. There "When we arrive in a port we put up a plais nothing in the evidence to the contrary, card of the date of departure and the time and under the liberality of the rules of evi- of sailing and the destination, and it was put dence in the administration of the civil law, up by my personal order from the captain that we must take this as we find it, and, as it we sailed from St. Thomas directly, and it stands, the argument that a temptation was was fixed up in the night of the 15th of July. held out is answered by the evidence that it We were to start on the morning of was resisted. the 16th, at 6 o'clock in the morning, the captain saying he did not want to fall into the hands of the American cruisers during the night. The night before our arrival in Charleston, the doctor says to me, 'I have a bill of health, Spanish account, from Cape Haytien and Port au Prince,' and I told him I would speak to the captain and ask him what to do with these papers that I had found in assorting my papers-these papers in the pigeon holes. I told the captain that morning, and he told me that we had better destroy them, because we don't want them; that it is not our expedition, and that a true exposition is valuable only for the last port to the Spanish port."

526] Such being the situation and the evidence of the ship's officers being explicit that the vessel was on her way to St. Thomas and had no intention of running into San Juan, the decree in her favor must be affirmed on the merits, unless the record elsewhere furnishes evidence sufficient to overcome the conclusion reasonably deducible from the facts above stated.

Among the papers delivered to the prize master were certain bills of health, five of them by consuls of France, namely, July 9, from St. More, Haiti, giving the ship's destination as Havre, with intermediate ports; July 11, from Gonaives, Haiti, giving no destination; July 13, from Port au Prince; July 14, from Cape Haytien; July 15, from Puerto Plata, all naming Havre as the destination: and three by consuls of Denmark, July 13, from Port au Prince, July 14, from Cape Haytien, and July 15 from Puerto Plata, all naming St. Thomas as the destination. When the captain testified August 2, in answer to the standing interrogatories, he said nothing about any Spanish bills of health. The deposition was reread to the captain, August 3, and on the next day, August 4, he wrote to the prize commissioners desiring to correct it, saying: "I fear I have badly interpreted several questions. I was asked if I had destroyed any papers on board or passports. I replied, no. The papers-documents on board for our voyage had been delivered up proper and legal to the prize master. This is absolutely the truth, not including in the documents two Spanish bills of health, one from Port au Prince and one from Cape Haytien, which we found in opening our papers, although they had not been demanded. Not having any value for us, I said to the steward to destroy them on our arrival at Charleston, as we often do with papers that are useless to us. The regular expedition only counts from the last port, which was Puerto Plata, and I refused to take it from our agent for Porto Rico. I swear that at my examination I did not think of this, and it is only on my return from sign. ing that the steward recalled it to me. I never sought to disguise the truth, since I wish to advise you of it as soon as possible." On the 5th of August the purser answered [527]the interrogatories, and testified that papers were given him by the consignees of the steamer at Port au Prince in a box at the time of sailing, and he found in the box one manifest of freight in ballast, and it was the same thing at Cape Haytien. At Puerto Plata the agent of the company came on board on their arrival there, and "the captain told him that there was no Spanish clearance: there was no need of it; and it was not

On the 5th the captain was permitted to testify, in explanation, saying, among other things: "The reason that we did not give up the two bills of health is because they did not form a part of the clearance of our ship for our itinerary, and they were left in the pigeon holes where they were. It was at the time of our arrival at the quarantine at Charleston that the purser spoke to me of them, and I told him that they were good for nothing and to tear them up. The captain wishes to add that he did not remember the instance the other day about the destruction of papers that he has just told us about and that he never had any intention to disguise anything or to deceive."

Counsel for the government insist that the 528] intention of the Olinde to run the blockade is necessarily to be inferred from the possession of these bills of health and their alleged concealment and destruction. Doubtless the spoliation of papers, and, though to a less degree, their concealment, is theoretically a serious offense, and authorizes the presumption of an intention to suppress incriminating evidence though this is not an irrebuttable presumption.

In The Pizarro, 2 Wheat. 227, 241 [4: 226, 229], the rule is thus stated by Mr. Justice Story: "Concealment, or even spoliation of papers, is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and to justify the suspicions, of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile; if the cause labour under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarion tion, it is made the ground of a denial of far

ther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply."

It should be remembered that the first deposition of the captain was given in answer to standing interrogatories, and not under an oral examination; that the statute (R. S. § 4622) forbade the witness "to see the interrogatories, documents, or papers, or to consult with counsel, or with any persons interested, without special authority from the court", that he was born and had always lived in France, and was apparently not conversant with our language; indeed, he protested, as "neither understanding nor speaking English," "against all interpretation or translation contrary to my thought;" that the deposition having been read to him the day after it was taken, he detected its want of fullness, and immediately wrote the prize commissioners on the subject with a view to [529] correction; and that it was after this, and not before, that the purser testified.

Transactions of this sort constitute in themselves no ground for condemnation, but are evidence, more or less convincing, of the existence of such ground; yet, taking the evidence in this case together, we are not prepared to hold that the explanation as to how these bills came to be received on board, neg lected when the papers were surrendered, and finally torn up, was not sufficient to obviate any decisive inference of objectionable

intention.

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The log of the Olinde Rodrigues states: "6.30, noticed the heights of San Juan. At 7.20, took the bearings of the fortress at 45 degrees, eight miles and one-half crosswise. Noticed, at 7.50, a man-of-war. At 8.10, she signalled 'J. W.,' ["heave to and stop instantly"]. I went towards it and made ar rangements in order to receive the whale boat which is sent to us."

In a communication to the Ambassador of France at Washington, written July 17, and purporting to give a full account of the matter, the captain said that he "was some time before seeing her signal, on account of the distance and of the sun. Suspecting what she wanted, I hoisted the 'perceived' and stopped.'

He testified that he turned his vessel to the warship before the gun was fired, which was at 8.12, but on this point the evidence is strongly to the contrary. We are inclined to think that some allowance should be made for imperfect recollection in the rapid passage of events. The Olinde Rodrigues was comparatively a slow sailer (ten to twelve knots), and if the captain stopped on seeing the signal, and turned towards the war ship with reasonable promptness, a settled purpose to defy the signal ought not to be im-[530] Orleans just before, just after, or just as the puted, whether she started towards the New

shot was fired.

ment is, however, that the Olinde Rodrigues The stress of the contention of the governJuan at the time her progress was arrested. was on a course directly into the port of San It is extremely difficult to be precise in such a matter, as her course to reach St. Thomas necessarily passed in face of San Juan. The captain attached to his explanatory affidavit a sketch, "showing the usual route and the actual route which he was taking at the time of the capture, with the position of the capturing ship and his own ship," as follows:

174 U. S.

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port, and about 9 miles from shore, about 9 miles from Morro. They judged the distance in passing as they do from all points."

But it appears from the entries of the sec-| Juan, about 7 or 8 miles eastward of the ond officer on the log of the Olinde Rodrigues that the ship was from one to five o'clock in the morning of July 17 on the course (as corrected), S. 69 E., and that from six to eight o'clock the course was S. 72 E.

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The second officer said that "they were 9 miles from San Juan after having passed the port of San Juan and gone 4 miles east of it."

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This testimony strikingly confirms Cap-mitted "that south 69 is the proper course tain Folger's candid expression of opinion beforehand for the Culebra Passage" (the that though the master of the Olinde Rod- passage through which to reach St. Thomrigues may have been going in and out of as), but contested that the French vessel that port for years, he did not measure the was making that course. distances, but "would run so far down the coast and order them to steer to a certain point to head in.”

The commander of the New Orleans ad

Lieutenant Rooney, the navigator of the New Orleans, laid down the positions upon a chart as follows:

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[533] *The point C. is seven and two-thirds miles | one of them would be to pass about twelve from Morro, bearing S. W., and five miles miles north of the harbor of San Juan, and from point D., the intersection of a line that there was nothing impracticable in a drawn west with north and south ne vessel reaching Culebra Point, with a view through Morro. D. is five and two-thirds of going to St. Thomas, on a course of S. 69 miles from Morro. The range of Morro guns E. from midnight to 5 o'clock, and a change was six and one-half miles, and the range of at 5 o'clock to S. 73 E. He also testified the shore batteries, three miles east of Morro, that a vessel bound for San Juan on an ordialso six and one-half miles. According to nary commercial voyage would have been this plat, the Olinde Rodrigues was slightly nearer the shore than where the Olinde Rodwithin the range of the Morro guns, but not rigues was when she was captured, and that within the range of the shore batteries. The it was probable that if she intended to go New Orleans when she fired was close to the to San Juan and avoid the New Orleans she range of the shore batteries and something would have hugged the shore and not been over a mile outside of the extreme range of out at sea. the Morro guns.

when sailing on a proper course for St. Thomas, would be drawing to the south, and that the New Orleans was to the north of her, in which case, obviously, the nearer the vessels approached the more open would the masts of the Olinde Rodrigues appear. But the clear preponderance was that the captured ship was to the west of a north and south line drawn through Morro, and running nearly south just before or when the New Orleans fired.

Some of the evidence, in short, had a tenAnd it is urged that the conclusion is in-dency to show that the Olinde Rodrigues, evitable that the French ship intended to run into the port and to draw the pursuing cruiser within the range of the Spanish guns. If her being in the neighborhood were not satisfactorily explained; if she persistently ignored the signal of the cruiser; and if her course was a course into the port of San Juan and not a proper course to reach St. Thomas, then the conclusion may be admitted; but it is not denied that she was in the neighborhood in the discharge of her duty, and we have already seen that she may be consistently regarded as not having defied the signal.

On the part of the captors, the witnesses concurred that the Olinde Rodrigues's course was laid for the port of San Juan, while on her behalf this was denied, except so far as her course for St. Thomas took her near the blockaded port. In addition to the witnesses from the New Orleans the telegraph operator on the Morro testified that the Olinde Rodrigues was coming directly toward the Morro, but changed her course when the shot was fired.

It is impossible to deny that the testimony of Captain Folger, the commander of the New Orleans, and of his officers, was extremely strong and persuasive to establish that the Olinde Rodrigues, when brought to, was in-[535] tentionally heading for San Juan, and pursuing her course in such a manner as to draw the blockading cruiser in range of the enemies' batteries, and yet we must consider it in view of the evidence on behalf of the captured ship, and of the undisputed facts tending to render it improbable that any design of attempting to violate the blockade was entertained. The Olinde Rodrigues had neither passengers nor cargo for San Juan; in committing the offense, she would take the risk of capture or of being shut up in that port; she was a merchantman engaged in her regular business and carrying the mails; she was owned by a widely known and reputable company; her regular course, though interrupted by the blockade of that port, led directly by it, and not far from it; and the testimony of her captain and officers denied any intention to commit a breach.

The evidence of evil intent must be clear and convincing before a merchant ship belonging to citizens of a friendly nation will be condemned. And on a careful review of the entire evidence, we think we are not compelled to proceed to that extremity.

A principal reason given by the witnesses for concluding that the Olinde Rodrigues was making for San Juan was that her masts, as seen from the deck of the New Orleans, were open, thus indicating that she was sailing south or toward the port of San Juan. It was admitted that this would not necessarily be so unless the New Orleans was on the same line east and west with the other vessel, or, [534]in other words, if the *New Orleans were to the north of the Olinde Rodrigues, the latter's masts might appear open without necessarily indicating that she was sailing south, or towards the land. Lieutenant Rooney did not see her until after she was captured. He is positive as to the approximate position of the New Orleans early in the morning before the Olinde Rodrigues was But, on the other hand, we are bound to sighted, which had not occurred when he say that, taking all the circumstances towent below at 7.30, and he is positive as together and giving due weight to the evidence the position of the New Orleans after the capture. He places the position of the New Orleans at 6.50, when the last bearing observation was taken, at fifteen miles north of the coast and of the Morro. At nine o'clock bearings were again taken, and she was about seven and two-thirds miles from the Morro. Lieutenant Rooney explained in his testimony the proper courses for a vessel sailing to St. Thomas, and stated that several courses might be properly steered, that

on behalf of the captors, probable cause for
making the capture undoubtedly existed;
and the case disclosed does not commend this
vessel to the favorable consideration of the
court.

Probable cause exists where there are cir-
cumstances sufficient to warrant suspicion
though it may turn out that the facts are
not sufficient to warrant condemnation.
And whether they are or not cannot be de-
termined unless the customary proceedings

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