The Steamship Styria

THE STEAMSHIP STYRIA, Antonio G. Scopinich, Claimant, Petitioner,

v.

SCHUYLER L. PARSONS.

No. 73.

THE STEAMSHIP STYRIA, Antonio G. Scopinich, Claimant, Petitioner,

v.

ALFRED S. MALCOLMSON.

No. 74.

THE STEAMSHIP STYRIA, Antonio G. Scopinich, Claimant, Petitioner,

v. JOHN MUNROE et al.

No. 75.

Nos. 72-75.

Argued and Submitted November 22, 25, 1901.

Decided May 19, 1902.

Four libels in admiralty were filed in the district court of the United States for the southern district of New York against the steamship Styria, to recover damages for the failure duly to d1t02eliver at New York lifferent lots of sulphur, owned by the libellants, shipped on board the Styria at Port Empedocle, the port of the town of Girgenti, in Sicily, April 21-24, 1898, and shortly afterwards relanded at the port of shipment because it had become contraband of war. 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 margin ) 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 passed, and the President approved, the joint resolution recognizing the freedom and independence of 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. On April 21, the Amer-

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 voyage) 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 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 consignee, if named, stating the landing and with whom deposited, the goods to be at the shipper's risk and expense, and the master and owners discharged from all responsibility.' ican 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 capture 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 Minister of Marine with the fulfilment of this decree.

On April 23, the master of the Styria received a telegram from Burrill & Sons, her managing agents, directing him not to sail until further orders; and on April 25 another telegram directing him 'to discharge whole cargo as quickly as possible.' The 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 because he saw in the newspapers that the sulphur was contraband of war and he considered it unsafe to carry it, the master began to reland the sulphur at Port Empedocle on April 27, and had it all unloaded and warehoused by May 7. At the beginning 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 warehouses 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 warehouseing 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 Styria, '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 interest of all whom it might concern to discharge 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, respectively, the master replied that he, 'in discharging 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 Parliament, that sulphur had been declared contaband of war by one of the belligerent powers.' And at the conclusion of the unloading, on May 7, the master gave notice to the shippers that, as soon as they paid the expense incurred on their account, the sulphur 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 Sicila, a newspaper of Palermo, each issue 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 24-25, 1898, it was stated that the merchants of Messina had requested their deputy in 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 has not yet arrived, I assure you absolutely that the Spanish government has determined 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 relative to the free navigation of cargoes of sulphur.'

The Giornale di Sicilia of May 5-6, 1898, contained, under the heading 'Sulphur is 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 contraband of war, arms, projectiles, fuses, powder, sulphur, nitre, dynamite, explosives, uniforms, ornaments, saddles, engines for ships, derricks, screws, boilers, and all that is necessary for the construction, repair, 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.'

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, 1898 (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 communication confirms to us that the exportation of sulphur, notwithstanding the Spanish-American war, may continue. Indeed, the Spanish 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.'

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 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 Ambassy in Italy, in June and July, 1898, that the actual state of facts was as follows: The Spanish Minister for Foreign Affairs verbally stated to the Italian ambassador at Madrid, on April 29, 1898, and to the British ambassador at Madrid, on May 6, 1898, that while the decree of April 23 could not be altered, orders would be given to the Naval Departments, as a temporary measure, not to treat sulphur as contraband of war. On May 31, 1898, the Spanish Minister, in a note to the British ambassador at Madrid, stated that the treatment of sulphur as contraband of war would be temporarily suspended; that the orders which had been given to that effect would not be revoked without due notice; and that the eventual revocation of the orders would not, in any case, apply to vessels at sea in ignorance of it, while the necessary time would be given for the execution of pending contracts. It did not appear that Spain ever made any public announcement of the modification of her intentions in regard to the treatment of sulphur, or ever agreed to let sulphur go free permanently.

A vessel which lay alongside the Styria at Port Empedocle, loading sulphur, sailed before she did, and arrived at New York in safety on May 19. Two other vessels laden with sulphur came safely from the Sicilian port of Licata to the United States about the same time. And no sulphur ships were taken by Spain during the war.

Presently after the signing of the Peace Protocol between the United States and Spain on August 12, 1898, the parties to these cases stipulated in writing that the steamship company should forward the sulphur from Port Empedocle by the first available vessel to New York, and deliver it to the consignees, upon the terms and for the freight specified in the original bills of lading; that the sulphur, upon arrival, should be sold at current market rates, and the proceeds, less charges incurred, be credited on account of the damages, if any, recovered by the libellants; that, if the Styria was justified in relanding and storing the sulphur as was done, the company should have a lien upon the sulphur for the charges against it in Sicily; and that, if it was not so justified, the sulphur should be free from any charges except freight.

Under this stipulation, the steamship company paid the expenses of storage in Sicily, and reloaded the sulphur and brought it to New York in its steamship Abazzia, sailing September 4, and arriving September 30, and there delivered it to the consignees, who paid the freight as agreed, and sold the sulphur at the current market rates. And the company filed cross libels for the charges in Sicily.

The district court found for the libellants, holding that the discharge of the cargo was too hasty and precipitate, and not justified by the facts of the case; and entered decrees for the libellants in small amounts, and dismissed the cross libels. 93 Fed. 474, 95 Fed. 698.

Both parties appealed to the circuit court of appeals, which held that the sulphur was rightly discharged, but should have been reloaded before the Styria left Port Empedocle; and entered decrees for the libellants for increased damages, and upon the cross libels for the expenses of unloading, warehousing, and reloading in Sicily. 41 C. C. A. 639, 101 Fed. 728.

The cases were then brought to this court by writs of certiorari, granted on petitions of both parties. 179 U.S. 683, 45 L. ed. 385, 21 Sup. Ct. Rep. 926, 179 U.S. 685, 45 L. ed. 386, 21 Sup. Ct. Rep. 917.

Messrs. J. Parker Kirlin, Charles R. Hickox, and Converse & Kirlin for petitioner.