United States v. Itata , 49 F. 646 ( 1892 )

Ross, District Judge.

These cases wore tried and submitted together upon the evidence introduced in the case of U. S. v. Trumbull, 48 Fed. Rep. 99, so far as the same is applicable, and upon certain additional depositions. The additional testimony does not alter the facts shown in the Trumbull Case further than that it shows that the Itata, before leaving Chili for California, discharged the four small cannon, together with the ammunition therefor, she had theretofore carried, and that the soldiers she took on board did not exceed 12 in number, and were taken on board, not to he used as soldiers, but for passing coal and as stokers. It further shows that when the Itata came into the waters of the United States she had on board less than her usual complement of men, and but one small brass gun, used as a signal gun, eight or ten old muskets, and one small iron gun, for which there was no ammunition. The additional depositions, which include the testimony of two of tho officers of the United States cruiser Charleston, still more clearly show, what was before made sufficiently apparent, that in no just sense could the Itata be regarded as a ship of war at the time she came within the waters of the United States, or at any time while she remained within those waters. My views in respect to the ease are sufficiently stated in the opinion delivered in the Trumbull Case, and reported in 48 Fed. Rep. 99, to which I adhere. It is enough now to state the facts I find from the evidence in the present case, together with the legal conclusions, which are as follows:

In January of 1891 the steam-ship Itata was an ordinary merchant vessel. .Early in that month she was captured in the harbor of Valparaiso, Chili, by tho people then known as the “Congressional Party,” and who were then engaged in an effort to overthrow the then established and recognized government of Chili, of which Balmaceda was the head. The Itata was by the Congressional party put in command of one of its officers, and was used in their undertaking as a transport to convey troops, provisions, and munitions of war, and also as an hospital ship, and one in which to confine prisoners. Four small cannon were also put upon her decks, and she carried a jack and pennant. Some time prior to the following April one Trumbull came to the United States as an agent of the Congressional party, and about the month of April went to the city of Now York, and there bought, from one of the large mercantile firms of that city dealing in such matters, 5,000 riñes, and 2,000,000 cartridges therefor, with the intention and for the purpose of sending them 'to the Congressional party in Chili, for use in their effort to overthrow the Balmacedan government. The sale and purchase of the arms and ammunition were made in the usual course of trade. Trumbull caused them to be shipped by rail to San Francisco, and engaged one Burt' to accompany them, which he did. Arrangements had been made by Trumbull with his principals in Chili by which they were to send a vessel to the United States to get the arms and ammunition, and convey them to Chili for the use of the Congressional party there. The Itata was dispatched by that party for that purpose, and was accompanied as far as Cape San Lucas by the Esmeralda, a war ship then in the service of the Congressional party. Before leaving Chili, the Itata discharged the four small cannon, with the ammunition therefor, that she had theretofore carried, but she retained one small brass gun, which she had always carried and used as a signal gun, and also eight or ten old. muskets, and one small iron cannon, for which there was no ammunition. At one of the Chilian ports the Itata took on board some soldiers, with their arms, not exceeding 12 in number; but they were taken, not to be used as soldiers, but for passing coal and as stokers. At San Lucas the captain of the Esmeralda took command of the Itata, and the captain of the latter was left there in command of the Esmeralda. The Itata then proceeded to San Diego, really in command of the Esmeralda’s captain, but ostensibly in command of another, who represented to the customs officers at that port that she was an ordinary merchantman, and was bound to some port on the northern coast. Before coining into the port of San Diego, or into the waters of the United States, the Itata hauled down her jack and pennant; the brass and iron cannon were removed from her deck and stowed in her hold, as were also the arms of the soldiers she carried; and their uniforms, as well as those of the officers, were removed, and all appeared in civilians’ dress. At that port she laid in stores of coal and provisions, all of which were bought in the open market, and some of which were marked “Esmeralda.” Meanwhile Trumbull had chartered a schooner, called the Robert and Minnie, in San Francisco, to take the arms and ammunition from there to a point in this judicial district, then expected to be near the island of Catalina, where she could meet the Itata, and deliver them on board of her, to be conveyed to Chili for the purposes already stated. The schooner Robert and Minnie accordingly took on board the arms and ammunition at the port of San Francisco, and, in charge of Burt, proceeded to the neighborhood of Catalina island, where she expected to meet the Itata. In the mean time the suspicion of some of the officers of the United States that the neutrality laws were being violated was aroused, and the marshal of this district was directed by the attorney general to detain the Itata, if such was found to be the case; and, acting upon those and certain instructions from the district attorney of this judicial district, he went on board the ship at San Diego, and put a keeper in charge of her, and then went in search of the Robert and Minnie, which lie (lid not find in the waters of the United States. Communication was, however, had between the Itata and the schooner, and a point near San Clemente island was fixed upon as the place of meeting for the purpose of transferring the arms and ammunition from the schooner to the ship. Accordingly, the Itata, on the 6 th day of May, 1891, without obtaining clearance papers, and against the protest of the person left on board and in charge of her by the marshal, weighed anchor, and steamed out, of the harbor of San Diego, with him on board, to meet the Robert and Minnie and receive the arms and ammunition. The marshal’s keeper was. however, put, ashore at Point Ballast, before leaving the harbor. While steaming out of it, one or both of the Data’s cannon wore brought on deck, and some of the soldiers on board of her appeared in uniform. On the 9th of May the Itata and Robert and Minnie carne together, about a mile and a half southerly of San Clemente island, in this judicial district, and there the arms and ammunition in question were taken from the schooner, and put on board the ship in original packages, and the latter at once left with them for Chili. On September 4, 1891, the Congressional party was recognized by the government of the United States as the established and only government of Chili. Prior to that time then' had been no recognition of that party by this government, other than that, on March 4th, the secretary of the navy cabled Admiral McCann “to proceed to Valparaiso, and observe strict neutrality, and take no part in troubles between parties further than to protect American interests.” On March 26th the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCann, “to abstain from proceedings in nature of assistance to either — that is, the Balmaceda or Congressional — -party; that the ships of the latter were not to be treated as piratical so long as they waged war only against the Balmaceda government.” On April 25th, Secretary of State Blaine cabled the American minister: “You can act as mediator with Brazilian minister and French charge d’ affaires.” On May 5th, Minister Egan cabled this government: “Government of Chili and revolutionists have accepted mediation of the United Slates, Brazil, and France, most cordially; those of England and Germany declined.” On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Egan, and “expressed hope that, through combined efforts of the governments in question, the strife which has been going on in Chili may he speedily and happily terminated.” On May Hth, Acting Secretary of State Wharton cabled Minister Egan that “French minister reports threats to shoot the insurgent envoys by Balmaceda,” and directed that they should have ordinary treatment under flag of trace.

From the facts found, and for the reasons given in the opinion delivered in the ease of U. S. v. Trumbull, supra, my conclusion is that the libel in each case should be dismissed; and it is so ordered.