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SPANISH AMERICAN WAR,1898


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Appeals From the District Court of the United States for the SouthernDistrict of Florida

Supreme Court of the United States

Argued November 78, 1899Decided January 8, 1900

Full case name Paquete Habana.; The Lola. Citations 175 U.S. 677 20 S.Ct. 290; 44 L. Ed. 320; 1900 U.S. LEXIS 1714

Holding Federal courts could look to customary international lawbecause it is an integrated part of American law Court membership

Chief JusticeMelville Fuller

Associate JusticesJohnM. Harlan Horace GrayDavid J. BrewerHenry B. BrownGeorge Shiras, Jr. Edward D. White

Rufus W. Peckham Joseph McKenna


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In April 1898 two fishing vessels, the Paquete Habana, and the Lola

separately left Cuban ports in Havana in order to fish.

The two vessels were eventually captured by US Naval vessels as part of

Admiral Sampson's blockade of Cuba.

The vessels were placed within Cuba's territorial waters at the onset of the

Spanish-American War and then taken to Key West, where both vessels

were eventually auctioned by the district court. Paquete Habana for $ 490

and Lola for $ 800.

Admiral Sampson justified the seizures by stating that most fishing

vessels, flying under the Spanish banner were manned by excellent

seamen, "liable for further service" as naval reserves, an asset that could

eventually be used against US interests in the Spanish American War.


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The owners of the vessels however made an appeal to the

circuit courts, citing a long held tradition by nations ofexempting fishing vessels from prize capture in times of war.

This "tradition", a primary example of customary

international law, dates back from an order by Henry IV in

1403, and have more or less been observed by a large

majority of States ever since.

At the time of capture both vessels had no evidence of aiding

the enemy, and were unaware of the US naval blockade. Noarms were found on board, and no attempts were made to

either run the blockade or resist capture.


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Whether the fishing smacks were subject

to capture by the armed vessels of the

United States during the war with Spain.


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International law is part of our law, and must be ascertainedand administered by the courts of justice of appropriate

jurisdiction.

where there is no treaty and no controlling executive or

legislative act or judicial decision, resort must be had to thecustoms and usages of civilized nations,

and, as evidence of these, to the works of jurists andcommentatorsSuch works are resorted to by judicial

tribunals, not for the speculations of their authors concerningwhat the law ought to be, but for trustworthy evidence ofwhat the law really is. Hilton v. Guyot, 159 U.S. 113, 163 , 164 S.,214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.


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In 1403 and 1406 Henry IV issued orders to his admirals and other

officers, entitled 'Concerning Safety for Fishermen-De Securitate pro

Piscatoribus.' By an order of October 26, 1403, reciting that it was made

pursuant to a treaty between himself and the King of France; and for the

greater safety of the fishermen of either country.

The treaty made October 2, 1521, between the Emperor Charles V. and

Francis I. of France, through their ambassadors.

The herring fishery was permitted, in time of war, by French and Dutch

edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, chap. 3; 1

Emerigon des Assurances, chap. 4, 9; chap. 12, 19, 8.

The same custom would seem to have prevailed in France until towards

the end of the seventeenth century.


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The doctrine which exempts coast fishermen, with their vessels andcargoes, from capture as prize of war, has been familiar to the UnitedStates from the time of the War of Independence.

On June 5, 1779, Louis XVI., addressed a letter to his admiral, informinghim that the wish he had always had of alleviating , the hardships of war,had directed his attention to that class of his subjects [175 U.S. 677,690] which devoted itself to the trade of fishing, and had no other meansof livelihood.

By a royal order in council of November 6, 1780, the former orders wereconfirmed; and the capture and ransom, by a French cruiser, of The Johnand Sarah, an English vessel, coming from Holland, laden with fresh fish,were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.

In the treaty of 1785 between the United States and Prussia, article 23..included Fishermen not to be disturbed. [175 U.S. 677, 691]

Similar French and English govt. orders.


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Wheaton, in his Digest of the Law of Maritime Captures and Prizes,

published in 1815, wrote: 'It has been usual [175 U.S. 677, 696] in

maritime wars to exempt from capture fishing boats and their cargoes,

both from views of mutual accommodation between neighboring

countries, and from tenderness to a poor and industrious order of people.

This custom, so honorable to the humanity of civilized nations, has fallen

into disuse.

During the wars of the French Empire, as both French and English writers

agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck,

193; Hall, 148.

In the war with Mexico, in 1846, the United States recognized the

exemption of coast fishing boats from capture.


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In the treaty of peace between the United States and Mex- [175 U.S. 677,699] ico, in 1848, were inserted the very words of the earlier treaties with

Prussia, already quoted, forbidding the hostile molestation or seizure in

time of war of the persons, occupations, houses, or goods offishermen. 9

Stat. at L. 939, 940.

Heffter, 137; 2 Kalterborn, 237, p. 480; Bluntschli, 667; Perels,37, p. 217. 2 Ortolan, 54; De Boeck, 196; Hall, 148. See also TheSusa, 2 C. Rob. 251; The Johan, Edw. Adm. 275, and appx. L. :

They all considered this a general principle of law of nations and agreedupon by Custom and usage by international community to exempt

fishermen from the prize of war.


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It is the duty of this court, sitting as the highest prize court of the

United States, and administering the law of nations, to declare and

adjudge that the capture was unlawful and without probable cause;

and it is therefore, in each case,--

Ordered, that the decree of the District Court be reversed, and the

proceeds of the sale of the vessel, together with the proceeds of any

sale of her cargo, be restored to the claimant, with damages and

costs. [175 U.S. 677, 715]


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Treaties, official orders, juristic works established as evidenceof International customary law.

Marshaling five centuries of state practice and the writings of

scholars from ten countries to support its holding that coastalfishing vessels were exempt from capture under international

law during the U.S. war with Spain.

Laid the dictum : where there is no treaty, and no controllingexecutive or legislative act or judicial decision, resort must behad to the customs and usages of civilized nations.


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Thank you !

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