¶1A neutral vessel, at anchor, completely laden with a neutral cargo, on the neutral side of a river dividing neutral from hostile water, washing a blockaded coast, was captured as being subject to just suspicion of ah intent to break the blockade.
¶22. The captain of the vessel (whb was, however, absent at the time of cap*181ture), and the mate, being examined in preparatorio, testified that she was in neutral waters when captured. A stevedore, yet on board, that she had drifted to the place where she was taken, under stress of weather; he not knowing .whether when captured she was in neutral waters or not.
¶3Held, that this preliminary testimony warranted restoration.
¶43. Further proof having been allowed, it appeared that the vessel when captured was a quarter or a half mile within the hostile waters; the mate admitting this fact, but testifying that the vessel had drifted to the s.pot, its' anchor and chain being too light, and he expressing as one reason for not returning to the former anchorage as soon as the wind became fair, . that the captain was in port (about 36 miles distant), with the ship’s papers, and that he did not like to move the vessel without orders; and, as another, that the ship was fully laden and ready to sail, and had been seen by two blockading men-of-war, which did not disturb her, and that he thought the vessel might safely remain where she was till the captain returned; the mate proposing, also, if not .captured, to return at once to the anchorage from which he had drifted. On this,
¶5Held, that the case for the captors was not improved by the further proof» and that with the restitution costs and expenses to be paid by the captors, was to be decreed.
¶6Appeal from the District Court of the United States for the Eastern District of Louisiana.
¶7Mr. Ashton, Assistant Attorney-General, for the United States.
¶8Mr. Ueverdy Johnson, contra, for the claimant.
¶10stated the case and delivered the opinion of the court.
¶11The bark Teresita was captured near the mouth of the Rio Grande, on the 16th of November, 1863, by the United States steamer Granite City. The cargo consisted of one hundred and fifty-eight bales of cotton.
¶12She was brought into New Orleans for adjudication; and, upon hearing, the District Court directed restitution of the vessel and cargo.
¶13There was no question of the neutrality of the ship or her cargo; but it was claimed for the captors that she was in Texan waters when- captured, and therefore subject to just suspicion of intent to break the blockade.
¶14The captain and the mate of the ship, in their preparatory *182depositions, testified that she was in Mexican waters; but the captain being on shore at the time, could not be certainly informed as to this. A stevedore, who had been employed on board the vessel and had not been discharged, testified that shVhad drifted to the place where she was taken, under stress of weather. He did not know whether she was then in Texan or American waters. Her full cargo had .been taken in at her former anchorage.
¶15The preliminary hearing took place on this evidence, which, doubtless, warranted restitution.
¶16Further proof, however, was allowed. ' It consisted of depositions by the captain and some other officers of the Granite City to the effect that the Teresita when- captured was a quarter or half a. mile north of the line, according to the bearings by the compass, and that the mate admitted that she was in Texan waters. But the same deposition showed that the mate declared that his vessel had drifted to the spqt, his anchor and chain being too light; and assigned, as one reason for not returning to the former anchorage as soon as the wind became fair, that the captain was at Matamoras with the ship’s papers,' and he did not like to move the vessel without orders; and, as another, that the ship was fully laden and ready'to sail, and had been seen by two American men-of-war, which did not disturb her, and he thought, therefore, that she might safely remain where she was till the captain returned. It appeared, also, that the mate proposed if not^ captured, to return at once to the anchorage from which he had drifted.
¶17We are of opinion that, under such circumstances, temporary anchorage in waters occupied by the blockading vessels, does not justify capture, in the absence óf other grounds. The case for the captors was not improved by the further proof. The decree of restitution must be affirmed, and vre shall direct the costs and expenses to be paid by the captors.
¶18Decree and direction accordingly.