CASE COMMENT: THE PAQUETE HABANA, 175 U.S. 677 (1900)

Rhea R Seth, VII Semester, 4th Year,

Maharashtra National Law University, Nagpur



Introduction

“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”[1]

These lines form part of the judgement delivered by Justice Gray in The Paquete Habana & Lola (names of two coastal vessels), vs. the United States Navy/Squadron case. These lines have come to serve as model declaration pointing to the integration within the U. S. legal system of standard international law and the courts’ responsibility to effect that law into practice.[2]

This declaration, by no means, was novel. Neither were the contentions made on behalf of Paquete Habana which were culled from works of researchers and scholars studying the emerging nature of international law.

Each one of these tenets has been in vogue since the eighteenth century.[3] Over time, however, the core precepts of international law had morphed from a basis of natural law to a more conventional nature of law. The Paquete Habana judgement mirrors this metamorphosis and, at the same time, also reflects constancy and cohesion - the survival and continuity of age-old, eighteenth-century precepts in an enlightened age of legal positivism. Thus, the declaration, in effect, emphasises that, in spite of monumental alterations in international and domestic legal judgements in over two hundred years of U. S. legal history, courts need to embrace and incorporate original tenets of customary international law as an integral part of domestic legal structure. And this point is just as valid today as it was at the beginning of the twentieth century.[4]

Facts of the Case

The Paquete Habana & Lola (the name of two coastal vessels), vs. the United States Navy/Squadron

The Paquete Habana was a one-masted 43-foot long boat, manned by three and was operating under a permit granted by the Spanish government. On March 25, 1898, she set sail from Havana harbour for a month-long fishing expedition at Cuba’s western end.[5]

Meanwhile, the Lola, a 51-foot clipper carrying a crew of six, cruised out of Havana for a trip to the Yucatan Peninsula on April 11. It had no fishing permit.

Cuba at that time was a colony of Spain. The Spanish authorities had been grappling with a Cuban revolt for three years, employing a brutal tactic of "reconcentration" that incarcerated countryside people into fortified areas. Thousands died there from unhygienic conditions.[6]

Accounts in the American press of these horrific doings generated strong anti-Spanish sentiments among American people who were already antagonistic towards European participation in the Western part and favoured the U. S. strategy of expansion. The sentiments were then further inflamed when the U.S. battleship Maine, subsequent to a massive explosion, sank in the Havana harbour on February 1898, killing 266.[7]

Meanwhile, the talks aimed at persuading Spain to give Cuba independence had failed. So, on April 11 President McKinley asked the U. S. Congress authority to intercede.

The Congress, in turn, issued on April 20, 1898, a Joint Resolution announcing, in effect, that Cubans had the right to be free and independent and demanded the Spanish government to immediately cede its authority and withdraw its army and navy from Cuban land and waters. The resolution also empowered the President to induct the militia of numerous States in order to help him fulfil the declarations of the Resolution.[8]

In the events that followed, the Secretary of Navy, John Davis Long, directed Admiral William T. Sampson on April 21 to immediately put in effect a blockade across Cuba’s north coast, stretching from Cardenas on the east to Bahia Honda on the west.[9] The port of Havana got included in the blockade.

The next day, announcing the blockade, President McKinley stated that the U.S. would enforce the blockade as per the domestic laws of the U. S. as well as the laws of nations. On April 25, Congress proclaimed war against Spain.[10]

To make the blockade that was already in motion, the declaration of war was rendered retroactive to April 21.

On April 26, President McKinley issued a second declaration stating, in effect, that the war would be carried out as per the accepted precepts and practices followed by nations and he spelt out the rules governing the operation of the blockade and seizure of prizes. The declaration did not mention fishing vessels.

Totally oblivious of these happenings, the Paquete Habana, carrying about 8,800 pounds of live fish, had sailed back to Havana. Just as it was about 11 miles away from the Havana port, it was seized by U. S. gunboat Castine on April 25. Then it was escorted to Key West, where the fishing vessel and its cargo of live fish were declared as a prize of war and sold for $490.[11] The same thing happened with the other fishing vessel, the Lola, carrying 10,000 pounds of live fish. The Lola was captured two days later, transported to Key West, declared as a prize of war and was sold for $800.[12] These two boats were just part of several other vessels suffering the same fate.

Thereafter Admiral Sampson sent a letter to Secretary Long stating, in effect, that scores of fishing boats trying to enter the Havana port were manned by able seamen who were in fact trained as naval reserves and could be used for military assignments and therefore the Admiral should be given the authority to hold these seamen as prisoners of war to be delivered to the army commander at Key West.[13]

So, on April 30 Secretary Long gave Admiral Sampson the permission to capture any vessel or their crew violating the blockade.[14]

Now, the right and practice of seizing ships as prizes of war by combative countries date back to millennia. In previous times, such seizures were effected by privateers - private vessels that were permitted a commission to do this – that enjoyed the right to keep the booty from hostile boats legally seized as a prize.[15] The 1856 Declaration of Paris, however, had proscribed privateering. The United States was not a party to this declaration. Still, on April 26 President McKinley issued a proclamation that said,

That the policy of this Government will be not to resort to privateering, but to adhere to the rules of the Declaration of Paris.”[16]

And this is how, during its skirmish with Spain, it was the U. S. naval ships that came seize the enemy boats. In practical terms this meant that the captain and seamen of these ships could rightfully claim the proceeds of these legal seizures, in addition to the rewards set down by Congress. In theoretical terms, though, it also meant that for any invalid or wrongful seizure they were also liable to pay damages.[17]

The issue of the seizure, their validity or invalidity, had evolved over centuries through the judgements of courts having jurisdiction to decide prize cases. And even though these were domestic courts, they strove to apply a universal law of countries.

In this regard, Lord Mansfield had observed that “every country sues in these Courts of the others, which are all governed by one and the same law, equally known to each other.”[18] And Justice Story, in his judgement had stated that

“the Court of [the] prize is emphatically a Court of the law of nations, and it takes neither its character nor its rules from the mere municipal regulations of any country.”[19]

In 1898, the federal district courts in the U. S. had original jurisdiction over prize cases, with appeals lying directly to the Supreme Court. The skirmish with Spain gave rise to scores of such cases. In a mere span of about two and a half months, between November 1, 1899, and the middle of January 1900, the Supreme Court handled nine such cases involving prizes.[20]

Issue raised

· Under international law, are coastal fishing vessels pursuing their vocation of catching and bringing in fish, recognized and exempt, with their cargoes and crews, from capture as prize of war?

Held by the Court

The US SC ruled that fishing boats could not be seized as a prize of war. The court observed that customary international law excluded fishing boats from being seized as prizes of war. There was opinio juris that commercial fishing boats were excluded.

(Gray, J) Yes. Coastal fishing boats with their cargoes and crews are exempt from prizes of war. The doctrine that spared coastal fishermen with their boats and crews from seizure as prizes of war has been known by the U.S. (P) from the time of the War of Independence and has been recognized explicitly by the French and British governments.

It is an established rule of international law that coastal fishing vessels with their equipment and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fish are exempt from capture as prizes of war. Reversed.

Following is the judgement paragraph for which The Paquete Habana is famous:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”[21]

Critical Analysis of the case

To bolster its judgement, the United States SC relied upon and cited scores of precedents going back to ancient times and happening repeatedly between Great Britain and France, which established the existence of a customary international law that exempted fishing boats from prize capture. For instance, King Henry IV of England had issued his officers' orders in 1403 to leave fishermen alone during times of war. He had signed a treaty with France reaffirming this act between both parties. Similarly, Emperor Charles V and Francis, I of France had signed a treaty in 1521 to the same effect. This treaty had been invoked as owning to the critical rise in the market of herring.[22]

The background behind it was that war was going on between the two countries, and fishermen dared not venture out to sea. Therefore, a treaty was necessary on both accounts to stave off starvation among those who relied upon cheap herring, namely the lower classes.[23]

Before the Habana case, similar situations had continued to rise throughout history. Using this as a basis for customary law, the Court then ultimately observed and ruled the seizure of both vessels as "unlawful capture."


Conclusion

This case stresses the significant aspects that courts use to ascertain if something has become customary international law.

Customary international law can be deemed as a kind of international common law: not specifically defined anywhere, but everyone just agreeing to it.

The case involved a seizure by the U.S, Navy of a Cuban fishing boat in the middle of the Spanish-American War. At the time of the decision, the customary international law excluded enemy coastal fishing vessels from this right of seizure. Most contemporary commentators agreed with the U.S. SC analysis. Today prize law has little relevance or importance. Yet, the Habana case remains significant in international law decision, because it illustrates the process by which vessel exception evolved from a customary practice into an established rule of International Law.


Bibliography


[1] The Paquete Habana, 175 U.S. 677, 700 (1900). Last accessed on 14.7.17 [2]Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764 (2004); First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 622 (1983); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964); Filartiga v. Pena-Irala, 630 F.2d 876, 880, 886-87 (2d Cir. 1980); see also Mark W. Janis, An Introduction to International Law 99 (2d ed. 1993) (calling The Paquete Habana’s statement the “classic utterance by the SC” on the topic of incorporation); Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321, 322 (1985) (referring to The Paquete Habana. [3](2019)<http://csbweb01.uncw.edu/people/eversp/classes/BLA361/Intl%20Law/Required%20Readings/3.Story%20of%20the%20Paquette%20Habana.pdf.> accessed 15 April 2019 [4](Csbweb01.uncw.edu, 2019) <http://csbweb01.uncw.edu/people/eversp/classes/BLA361/Intl%20Law/Required%20Readings/3.Story%20of%20the%20Paquette%20Habana.pdf> accessed 15 April 2019 [5] The Paquete Habana, 175 U.S. at 678-79. [6] David F. Trask, The War with Spain in 1898, at 1-11 (1981); Lewis L. Gould, The Spanish American War and President McKinley 22 (1982) [7] A U.S. investigation attributed the explosion to an external cause, while a Spanish investigation came to the opposite conclusion [8] Joint Resolution No. 24, 30 Stat. 738-39 (1898). The Joint Resolution further disclaimed “any disposition or intention to exercise sovereignty, jurisdiction, or control over said Island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the Island to its people.” [9] Annual Report of the Navy Department for the Year 1898: Appendix to the Report of the Chief of the Bureau of Navigation 175 (1898) [hereinafter Navy Report Appendix]. [10] Act of April 25, 1898, ch. 189, 30 Stat. 364 (1898). [11] The Paquete Habana, 175 U.S. 677, 679, 713 (1900); Brief for the United States at 3 [12] The Paquete Habana, 175 U.S. at 679, 714; Brief for the United States at 4 [13] The Paquete Habana, 175 U.S. at 712-13 (quoting Navy Report Appendix at 178). [14] Navy Report Appendix at 178 [15] It was to this end that the U.S. Constitution gave Congress the power to “grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” U.S. Const. Art. I, § 8, cl. 11. [16] Supra 14 [17] Arnold W. Knauth, Prize Law Reconsidered, 46 Colum. L. Rev. 69, 70-74 (1946) (discussing prize money and bounties under U.S. law) [18] Lindo v. Rodney, 99 Eng. Rep. 385, 388 (K.B. 1782). [19] The Schooner Adeline, 9 Cranch 244, 284 (1815). [20]The Pedro, 175 U.S. 354 (1899); The Guido, 175 U.S. 382 (1899); The Buena Ventura, 175 U.S. 384 (1899); The Paquete Habana, 175 U.S. 677 (1900); The Newfoundland, 176 U.S. 97 (1900); The Adula, 176 U.S. 361 (1900); The Panama, 176 U.S. 535 (1900); The Benito Estenger, 176 U.S. 568 (1900); The Carlos F. Roses, 177 U.S. 655 (1900) [21]Supra 4 [22] Supra 14 [23] Supra 20

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