The Admiral

GRIER, Circuit Justice.

I agree with Chief Justice Tindal, in Medeiros v. Hill, 8 Bing. 231, “that the mere act of sailing to a port which is blockaded at the Lime the voyage is commenced, is noi an offence against the law of nations, where there is no premeditated intention of breaking the blockade." Oon.,<.quentIy, if, in the present case, the Admiral had taken out a clearance for Savannah, with the expectation that the blockade might be removed before her arrival, with instructions to make inquiry as to its continuance, at New York or Halifax, or other neutral port; and after having made such inquiry, had made no further endeavor to approach or enter the blockaded poet, her seizure and condemnation as prize, could not have been justified. But she presents a very different case. She was off Tybee Island, sailing for the blockaded port. She had made no inquiry on the way; had no reason to believe the blockade to be raised; and when arrested in her attempt to enter, she exhibits a clearance for St. John’s, New Brunswick, a port she may be said to h«"e passed, and a letter of instructions from tne owners, to call off the harbor of Savannah, to "endeavor to meet the blockading ship, and get the officer in command to endorse the register,” etc., but to make no attempt to run the blockade. The clearance is the proper document to exhibit and disclose the intention of a ship. The clearance in this case may not properly come within the category of “simulated papers.” But it does not disclose the whole truth. The suppression of a most important part, makes the whole false. It may be true, that in times of general peace, a clearance exhibiting the ultimate destination of a vessel, without disclosing an alternative one, may have sometimes ..een used by merchants to subserve some private purpose. But in times of war, when such omissions may be used to blindfold belligerents, as to the true nature of a ship’s intended voyage, and to elude a blockade, the concealment of the truth must be considered as prima facie evidence of a fraudulent intention.

The Admiral, with a full knowledge that her destined port is blockaded, takes a clearance for St. John’s, and is found a thousand miles from the proper course to such port, and in the act of entering the blockaded port. And when thus arrested, for the first time inquires whether the blockade has been raised. A vessel which has full knowledge of the existence of a blockade, before she enters on her voyage, has no right to claim a warning or endorsement, when taken in the act of attempting to enter. It would be an absurd construction of the president’s proclamation, to require a notice to be given to those who already had knowledge. A notification is for those only who have sailed without a knowledge of the blockade, and get their first information of it, from the blockading vessels. Now the primary destination of this vessel is to a blockading port. If the owners had reason to expect that i>ossi-bly the blockade might be raised before the arrival of tneir vessel, and thus a profit be made, by their ability to take the first advantage of it, their clearance, in the exercise of good faith, should have made admission of the true primary destination of the vessel. If the truth had appeared on the face of this document, and if the master had been instructed to inquire at some intermediate port, and to proceed no farther, m case he found the blockade still to exist, the owners might justly claim, that their conduct showed “no premeditated intention of breaking the blockade.” But when arrested ‘ in the attempt to enter a port known to be blockaded, with a false clearance, it is too late to produce the bill of lading or letter of instructions to prove innocency of intention. In such cases intentions can be judged only by acts. The true construction of this proceeding may be thus translated: “Enter the blockaded port if you can, without danger; if you are arrested by a blockading vessel, inform the captor that you were not instructed to run the blockade, but had merely called for information, and would be pleased to have your register endorsed, with leave to proceed elsewhere.” If so transparent a contrivance could be received as evidence of a want of any “premeditated intention to break the blockade,” the important right of blockade would be but a brutum fulmen, in the hands of a belligerent. “It would” (says Lord Stowell), “amount in practice to a universal license to attempt to enter, and being prevented, to claim the liberty of going elsewhere.” In the cases where the stringency of the general rule established by this judge (but overruled in Medeiros v. Hill) had been by him relaxed as to American vessels in certain circumstances, the clearances were taken contingently, but directly for the blockaded port, in the expectation of a relaxation of the blockade, with instruction to inquire as to the fact at a British or neutral port. The clearance exhibits the whole truth, and the place of inquiry their good faith. In these most material facts this case differs from them. Decree affirmed.

[NOTE. On appeal to the supreme court, this decree was affirmed. It there appeared that, if the blockade be not raised, the vessel was to proceed to St. Johns, N. B., and deliver her cargo. The stipulated freight was 30 shillings per ton if the cargo should be landed at Savannah, and 15 shillings per ton if landed at St. Johns. The court, by Mr. Justice Clifford, held that the proofs warranted the conclusion that the vessel sailed for a blockaded port with the intention of violating the blockade regulations, and that previous warning is not necessary in such a case, nor is it necessary that any warning should have been peviously indorsed on her register. Mere sailing for a blockaded port is not an offense: but where the vessel has a knowledge of the blockade, and sails for the blockaded port with the intention of violating the regulations, she is clearly liable to capture. The Admiral, 3 Wall. (70 U. S.) 603.)