The Divina Pastora

Citations: 17 U.S. 37; 4 Wheat. 37

Court: Supreme Court of the United States; February 18, 1819; Federal Supreme Court; Federal Appellate Court

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The case involves the Spanish consul at Boston, who petitions for the return of the Spanish vessel, Divina Pastora (also referred to as Esperanza), and its cargo valued at $10,000, currently docked in New Bedford. The vessel, manned entirely by American citizens, was allegedly captured by a privateer flying the flag of La Plata while en route from Laguayra to Cadiz. The consul asserts that this capture violates international law and the rights of Antonio Seris, the intended consignee in Cadiz, who is entitled to the vessel and cargo. The consul requests the court to take custody of the vessel and cargo to investigate the circumstances and restore them as per legal rights and international comity.

In response, Don Daniel Utley, representing the interests of the United Provinces of Rio de la Plata, contests the claims made by the consul. He argues that the United Provinces are independent and possess the authority to wage war, having commissioned a schooner, Mangoree, to capture Spanish vessels. Utley claims that the Divina Pastora was seized under this commission while engaging in lawful reprisals against Spanish interests during an ongoing war with Spain.

The original crew of the captured vessel was transferred to the schooner Mangoree, with a prize crew assigned to the Pastora. Barnes appointed Utley as the commander of the prize, providing him with a copy of his commission. Utley navigated the prize from its capture location to Port-au-Prince, Hispaniola, for supplies before heading to Buenos Ayres. Due to adverse weather and lack of provisions, the vessel docked at New Bedford. The plea argues that, under international law and mutual respect among nations, the court should not interfere with the prize or its cargo and requests restitution with costs and damages.

In response, the Spanish consul claims ownership of the vessel and cargo, asserting they belonged to subjects of Ferdinand VII on October 31, 1816, and requests their return. The consul contends that the capture by the Mangoree, under the authority of the United Provinces of Rio de La Plata, was piratical and unlawful, as the regions involved were historically Spanish colonies, with their inhabitants being subjects of Ferdinand VII. The consul further argues that these subjects had no legal right to authorize any vessel to wage war against Spain or its properties at the time of the capture, asserting that no lawful commission existed for the actions taken by Barnes or Utley.

All captures on the high seas claimed under questionable authority are deemed unlawful and piratical. Courts of nations at peace with Spain can adjudicate such claims if the captured property is within their jurisdiction. The Spanish consul's claim for restitution references articles from the 1795 treaty between the United States and Spain and contends that the commissions justifying the capture are fraudulent. It is alleged that the prize crew lacked proficiency in Spanish, were shipped from Port-au-Prince, and that the captured vessel, Divina Pastora, was bound for that location after the crew was transferred to the privateer.

The district court ruled in favor of the Spanish consul, ordering restitution of the vessel and cargo to the original Spanish owners. This decision was upheld by the circuit court and subsequently appealed. The appellants argued that the Spanish consul failed to establish jurisdiction for a U.S. prize court, noting that the capture did not occur within U.S. neutral territory or violate U.S. neutral rights. They maintained that the capture was a legal act of war authorized by the United Provinces of the Rio de la Plata, and therefore, the U.S. courts could not intervene. The appellants asserted that possession from the capture serves as prima facie evidence, and no evidence was provided to challenge this. They argued that the treaty provisions only apply to captures within U.S. territory or by pirates, neither of which applied in this case.

In contrast, the opposing counsel argued that U.S. district courts operate under the law of nations and that a general allegation of a maritime tort is sufficient to establish jurisdiction once the captured property enters U.S. territory.

A general allegation of unlawful capture is sufficient for legal proceedings, placing the burden on the captors to prove their actions were sanctioned by a friendly sovereign power. Neutral tribunals have the authority to assess the validity of such commissions to determine if the capture was lawful or piratical. Although the courts of the captor's nation typically have exclusive jurisdiction over prize seizures, exceptions exist, notably when captures are executed by forces organized in neutral territory, which shifts jurisdiction to the neutral state's courts, allowing for restitution to the injured party. U.S. laws and treaties, particularly with Spain, reinforce the prohibition of equipping armed vessels in U.S. ports and impose a duty to restore unlawfully captured property. These legal frameworks, along with treaties recognized as part of domestic law, support claims for restitution to original owners. If the allegations are adequately presented, the court is authorized to decree restitution; however, if pleadings are found deficient, the court will allow the claimant to amend their allegations instead of dismissing the case. Additionally, U.S. courts must acknowledge acts arising from the civil war between Spain and its colonies as lawful, provided they do not violate U.S. neutrality. Captured property must be restored if taken under a valid commission without breaching neutrality; otherwise, restitution is warranted for violations of neutral rights. Ultimately, the pleadings in the current case are deemed too informal and defective for a final decree.

The court aims to maintain procedural order in these proceedings without the strict technicalities of common law. The current pleadings may support the former owners' request for restitution; however, they are bound by factual circumstances that, if substantiated, would not allow for such restitution or permit evidence that deviates from the stated facts. Consequently, the circuit court's decree is reversed, and the case is remanded for the amendment of pleadings and further proceedings.

The document references the case of Glass v. The Betsey, which has faced criticism for its implications regarding judicial authority over prize captures, asserting that only the captor's country's courts have such jurisdiction, with exceptions for violations of neutral sovereignty. However, it clarifies that neutral courts can address captures violating neutrality, with decisions governed by international law. It also establishes that no foreign entity can create a judicial court within the U.S. unless sanctioned by treaties, deeming earlier French consul actions during the 1793 war illegal.

Furthermore, U.S. district courts lack jurisdiction over damage claims for vessels captured as prizes by belligerent powers, even if the captured vessel is claimed to belong to U.S. citizens. Captures by U.S. citizens under foreign commissions, particularly when claiming expatriation without actual departure, are unlawful, warranting restitution to the original owners. The document also discusses the illegality of captures by neutral citizens acting under pretenses of expatriation and questions whether a U.S. citizen can lose citizenship through state-defined expatriation to justify foreign captures. Lastly, it notes that captures conducted by war vessels built and equipped in neutral territories are unlawful and subject to restitution if brought within that neutral jurisdiction. Not every illegal act at sea constitutes piracy, as some may be illegal enough to warrant restitution without being deemed piratical.

A capture by a lawfully-commissioned cruiser using a neutral without the right to cruise is deemed unlawful, and the captured property must be returned by the neutral state if within its jurisdiction. Only a lawfully commissioned belligerent war vessel is exempt from inquiry by neutral courts regarding captures made on the high seas. If a vessel falsely claims such exemption with a colorable commission for plunder, it is treated as having no commission at all concerning property rights. Piracies and trespasses under international law are subject to inquiry and action by any nation unless a specific exemption exists.

In the case of a belligerent vessel captured and abandoned on the high seas, possession by U.S. citizens and subsequent salvage claims were upheld by the district court, which had jurisdiction over salvage matters. The court ruled that the captors' right upon capture could not be negated by the abandonment, granting one-third of the property’s value to the neutral salvors and returning the remainder to the captors. This decision clarified that the court did not address the underlying prize question but based its ruling on possession.

Additionally, a vessel built in the U.S. for potential privateering, which was later sold, armed, and commissioned by a belligerent, did not constitute an illegal outfit that would invalidate captures or provide grounds for U.S. courts to restore property to the original owner. A mere replacement of privateer forces in a neutral port does not invalidate captures made by that privateer.

A U.S. vessel and cargo were captured by a belligerent power and subsequently abandoned by its prize-crew on U.S. territory to avoid recapture. The original owner attached the vessel and cargo, leading to an agreement for their sale, with proceeds held pending a suit against the captors for damages. The court ruled that the captors were liable for the full value of the property, noting that any initial irregularity in the attachment was resolved by the captors' consent to sell the prize. The case of Del Col v. Arnold illustrates this principle, highlighting a scenario where the prize-crew abandoned the vessel, which was then taken by the original crew. The subsequent actions of the prize-crew were deemed tortious, warranting damages. The court, however, did not determine the appropriateness of seizing the vessel Industry for damages but acknowledged the sale's proceeds were valid due to consent.

Additionally, a foreign war vessel entering U.S. ports in a friendly manner is exempt from U.S. jurisdiction, supported by the principle that ports are open to public ships of nations at peace with the U.S. Such vessels remain protected unless explicitly prohibited. In contrast, private vessels lack the same immunity under local jurisdiction. The sovereign of the host nation may revoke this exemption through force or legal measures.

Jurisdiction of judicial tribunals in property disputes is contingent upon the explicit exercise of sovereign power; absent such action, general provisions allowing individuals to reclaim property do not apply if the sovereign has impliedly waived its jurisdiction. In a specific case, a public war vessel owned by Emperor Napoleon, previously belonging to a U.S. citizen, could not be reclaimed in U.S. courts after it was seized by the French. The general principle holds that captures made on the high seas by a commissioned war vessel belong solely to the capturing nation's courts. Exceptions exist, such as captures occurring within a neutral country's territory, where local courts are obligated to restore illegally captured property. A neutral nation may allow both sides to equip vessels within its territory without losing its neutral status, but any unauthorized equipment or force enhancement is deemed illegal. The U.S. law also prohibits equipping foreign war vessels within its borders, with courts empowered to restore such illegally captured prizes. This illegality applies regardless of whether those involved are U.S. citizens or foreign residents. A historical example involves the French privateer Invincible, which underwent multiple captures and recaptures during the War of 1812, leading to claims for restitution and indemnification from both the French consul and U.S. citizens.

Restitution was ordered by the circuit court to return property to the original French owner, a decision upheld by a higher court. It was established that U.S. courts lack jurisdiction to address torts involving American property on the high seas committed by foreign cruisers unless those cruisers violated U.S. neutrality. Relevant cases, such as L'Invincible and others involving Spanish property captured by Venezuelan and Carthagenian privateers, illustrated this principle, where property was restored based on neutrality violations. The excerpt also examines the validity of a commission under which a vessel was captured, emphasizing that commissions must be strictly interpreted and not extended beyond their explicit provisions. It argues that the authority of a commissioned officer does not allow for delegation of powers not explicitly granted, nor can translations of commissions be considered valid without original clauses. Additionally, it references a 1604 declaration from the English monarchy asserting that all vessels within certain territorial waters should be protected from violence, reinforcing that no hostilities should occur near ports, ensuring the safety of all merchant vessels under the monarch's jurisdiction.

The shallop, departing from the king's port, was primarily crewed by subjects of the king, which contravenes the 4th and 6th articles of the 1630 treaty with Spain. The capture occurred at night, lacking the use of force and relying instead on misusing the king’s name and authority. The legitimate commission was neither shown nor present during the capture. It is concluded that the capture was improperly executed, warranting the restoration of the ship and goods to the Ostender, along with punishment for the shallop's commander and crew. 

Furthermore, it is established that only governments have the authority to recognize new states created during global revolutions. Until such recognition is granted, courts must regard the previous state of affairs as unchanged. The distinction between acknowledging a new government’s independence and recognizing a civil war is significant; the former assumes a decision that the latter seeks to contest. Both parties in a conflict retain the belligerent rights of established governments, unless restricted by treaties, and must adhere to neutrality obligations towards each other. The obligations of neutrality and the potential impact of belligerent misconduct have been addressed in court decisions, such as in the case involving the French privateer Citizen Genet, which captured the sloop Betsey. The district court of Maryland was deemed competent to determine if restitution was warranted, given that the sloop belonged to Swedish subjects, a neutral party, and its cargo was jointly owned by Swedes and U.S. citizens, also neutrals.