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Colonial Cases

R. v. Casaca, 1880

[admiralty - slavery - ship, condemnation of]

R. v. Casaca

Judicial Committee of the Privy Council
6 April 1880
Source: The Times, 7 April, 1880

(Present - Sir James Colville, Sir Robert Phillimore, Sir Barnes Peacock, and Sir Montague Smith.)
Their Lordships resumed their sittings today after the Easter vacation. The first list of causes included three appeals from Bengal, one from Sierra Leone, and one from Constantinople, and two judgments in Canada and Griqualand cases.
  This was an appeal against a decree of the Vice-Admiralty Court of Sierra Leone of the 9th of November, 1877. The action in which it was made was brought against the owners and master of the Portuguese brig Overense, by Mr. James Craig Logie, C .M.G., as Inspector-General of Police pf Sierra Leone, for the forfeiture of the vessel and its cargo and for the liberation  of three persons alleged to be slaves under the provisions  of the Slave Trade Acts. The vessel was seized in the harbour at Freetown, Sierra Leone, on the 5th of December, 1876. The Government alleged that the vessel was engaged and fitted out for the slave trade,; that it had on board three slaves and accommodation for others; and that thus it was liable to forfeiture. The owners denied these assertions, stating that the alleged slaves were free immigrants destined for the Portuguese Island of St. Thomas, where no slavery existed. The Vice-Admiralty Court decided that the vessel was not engaged within the British jurisdiction in the slave trade, and consequently ordered its restitution to the owners, with the alleged slaves, one of them, however, had died while the proceedings were pending. The Court also condemned the Inspector-General in costs and damages. Against this decision the Crown appealed.
  The Attorney-General and Mr. A. V. Dicey were counsel for the Crown; Mr. Butt, Q.C., and Mr. E. C. Clarkson and Mr. Ernest Law for the respondents.
  The arguments were unfinished when the Court rose.
The Times, 8 April, 1880.
[As above.]
.  .  .  
  The action in question was brought on the part of the Crown by Inspector-General James Craig Logie, C.M.G., in his official capacity of Inspector-General of Police at Sierra Leone, for the forfeiture of the Portuguese brig "Overense," of which the respondents were the owners, on the alleged ground that it was engaged in the slave trade. The Inspector-General was admittedly duly empowered by the Governor of the Settlement to seize all ships within it which were liable to forfeiture under the Slave Trade Acts, and, under that power, he ordered the seizure of the brig on the 5th of December, 1876, in the harbour of Freetown, Sierra Leone. The grounds of the seizure were that the brig had actually on board three Kroo men or boys carried off from Cape Palmas, Liberia, as slaves, and treated as such, and that the vessel carried, contrary to the Slave Trade Acts, a larger quantity of water than was reasonably sufficient for the use of her crew as a merchant vessel, and a greater number of drinking vessels and mats among other articles than were necessary for the crew, and a number of chain and shackles. There were also other circumstances, such as the finding of a "clapper" usually used in slave ships, and that the brig was taking in more water, which induced the Inspector-General to believe that the vessel was being equipped for the slave trade.
  The owners and master, on the contrary, alleged that the brig was not and never had been engaged in or fitted out for the slave trade, but was a duly licensed emigrant vessel; that the three persons on board were not slaves, but free emigrants destined for the Portuguese island of St. Thomas, where slavery did not exist, and that the water on board and the articles enumerated were not carried for the purpose of the slave trade. The Vice-Admiralty Court, before whom the case came, decided in favour of the respondents and ordered the restoration of the ship to them with the alleged slaves, one of whom, however, had died during the progress of the proceedings. The Inspector-General was condemned in damages and costs. Against that decision the Crown now appealed.
  The arguments began on Tuesday, were still unfinished when the Court rose.

Source: The Times, 10 April, 1880.

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On the morning of the 5th of December, 1876, the Inspector-General went on board the vessel, which was lying at anchor in the harbour of Freetown, Sierra Leone, and searched her. He found two large tanks, containing 2,000 gallons of water, nine puncheons, holding 100 gallons each, and an extraordinary number of empty casks and other vessels for holding liquid, which were not entered on the "manifest" of the brig. He also discovered a quantity of packages labelled as cotton goods, one of which he opened and found in it hinges, hammer-heads, nails, and other articles. The vessel was taking in more water at the time, in quantities far larger than was requisite for the consumption of the crew.  A further search led to the finding, under some casks of rum, of 32 large mats, and there were said to be shackles and chains concealed in the sand ballast. Three Kroo men or boys, alleged to be slaves and treated as such, were on board. The Inspector-General, in these circumstances, seized the brig as a vessel liable to forfeiture to Her Majesty by her being found within British waters fitted out and equipped for the slave trade. A native sailor named "Black Will," who had been employed on board as head Kroo man stated that the vessel had been to the island of St. Thomas, and that several natives had been landed there during the night chained by their waists in couples.
  The vessel had gone thence to Cape Palmas, where they shipped the three men found on board. The men were brought on board to take away some casks of rum, but as soon as they got into the hold the hatchways were closed on them. The price paid for them was said to be a "demi-john" of rum. The statement was corroborated by W. Grant, the steward, who had reported the matter to the Inspector-General.
  Grando, one of the alleged slaves, stated that he was a Kroo native, and lived in the up-country. He and the two other men were staying at Cape Palmas, and one day were employed, as they thought, to bring up on the brig deck some casks of rum. While they were working the hatchways were closed, and when they were allowed to come on deck the vessel was on her voyage to Sierra Leone. This was confirmed by the other two men.
  Under these circumstances the owners and master of the vessel were cited in the Vice-Admiralty Court of Sierra Leone to show cause why the ship should not be forfeited, and they duly appeared. The master, Manoel Casa, explained that the brig belonged Messrs. Formigal and Pello, merchants at Lisbon, and sailed on the 25th of June, 1876, from Lisbon to St. Thomas, where she arrived on the 5th of August; and that the water was required for the use of the crew and passengers at the rate of three-fourths of a gallon each per day. The ship sailed from St. Thomas on the 27th of September with certain passengers, whom they landed at Cape Palma, and the three men, or boys, were put on board there to go back to St. Thomas.  The charterer, Senhor Moraes, formerly Vice-Consul for Brazil and St. Thomas, and who carried n business under the style of the "Liberia Rubber Association of Liverpool," stated that slavery did not exist at St. Thomas. All slaves were liberated on the 29th of April, 1875, and each had land given to him by the Government if he required it. Since the emancipation the former slaves had refused to work and consequently there had been a great demand for labourers on the coffee plantations and for mechanics throughout the island. He and others had been engaged in importing labourers and mechanics into the island under the new law. Every labourer or mechanic must on landing first go to the Secretary of the Governor, and the contracts into which they entered had to be signed by and before him.  He had sent from Liberia, with the permission of the Liberian Government, between March and September, 1878, 1,657 Kroo boys.  He denied that the three men were slaves, or were intended to be dealt with as such, or that the brig was engaged in the slave trade. The vessel, on the contrary, was lawfully employed in the emigration of free labourers from the West Coast of Africa to St. Thomas.
  The case was tried between January and November, 1877, and a great number of witnesses on both sides were called. The Judge of the Vice-Admiralty Court, in a lengthy decision, held, in the suit, that there were no reasonable grounds of suspicion or probable cause for the seizure of the vessel; that the Inspector-General had failed to prove his case; and that the vessel and the alleged slaves must therefore be restored to the owner s, with damages and expenses and the full costs of the suit.  While the proceedings were pending, one of the slaves (so called) died, Against the decision the Crown appealed.
  For the Crown, the Attorney-General and Mr. Dicey contended that the evidence proved that the brig was at the time of the seizure fitted out for the purpose of and engaged in the slave trade. The importation of slaves into St. Thomas from the Kroo coast and Liberia had long been going on under the color and pretence of promoting the emigration of free labourers. The three men on board were, in fact, kidnapped for the purposes of slavery. The equipment of the brig was strong evidence of her being engaged in the slave trade. There were tanks and casks capable of containing, without replenishment, sufficient water for 13 men for a year; and it was alleged that chains and manacles had been privately removed from the ship after its seizure. The contention was that the excessive amount of water was required for emigrant s, but these "emigrants," so called, were really slaves.
The system of immigration into St. Thomas had been conducted in violation of the law both of Portugal and Liberia, and the dealings of the charterer with the Kroo men were  those of a slave-trader. But even assuming that the brig was not, in fact, engaged in the slave trade, she was a vessel (it was submitted) which was on reasonable grounds suspected to be so engaged, and thus liable to seizure; and, in any event, the Inspector-General was not answerable for damages in respect of the seizure or detention of the vessel. For these, among other reasons, it was urged that the judgment of the Court below was erroneous.
  For the respondents, Mr. Butt, Q.C., and Mr. Clarkson submitted, inter alia, that the Overense was an emigrant ship duly licensed according to the regulations of the Portuguese Government, and was not engaged in the slave trade within or without British jurisdiction. There was thus no power to seize her. The water was taken on board, with the other articles, for lawful purposes, and it was proved that the three men on board were not slaves, and that there was no reasonable ground for believing them to be such. There was no ground or cause for suspicion that the brig was engaged in the slave trade; but even assuming, which was denied, that the original seizure was made in circumstances entitling the captors to immunity from damages and costs, there is no possible excuse for the subsequent detention of the vessel for 11 months pending these proceedings. It was therefore argued that the decision of the Vice-Admiralty Court was right.
  At the close of the arguments, which had lasted nearly four days,
  Their Lordships intimated that they would take time to consider the humble advice which they should offer to Her Majesty in the case.

The Times, 7 May, 1880
[As above.]
.  .  .  
Their Lordships, in giving judgment, said it became necessary to consider and construe some of the statutes relating to the slave trade, and the treaty on that subject between England and Portugal. The learned Judge of the Vice-Admiralty Court below rightly observed that -
  "Before the passing of the Act 36 and 37 Vic., cap.88 the statute 5 Geo. 4, cap. 113, was the law by which we were to be guided in cases of slave-dealing within British waters and jurisdiction, and under that law, and in accordance with decisions pronounced in cases coming under it, the captors were bound to prove, in order to condemn the vessel, not only that she was actually engaged in the slave trade or fitted out for the purposes of the slave trade, but that the owners of the ship were cognizable of the fact or had a guilty knowledge thereof, and that the owners of the cargo on board also had a guilty knowledge of the fact, to justify a forfeiture of their goods; but that if there was probable cause for the seizure - that is, if from all the surrounding circumstances there was to a reasonable mind a fair and reasonable suspicion that the vessel was engaged in or fitted out for the purposes of the slave trade - then, although the vessel were restored, no damages could be awarded against the seizor."
  The next statute, 6 and 7 Victoria, cap. 53, which came into operation in August, 1843, carried into effect a treaty between England and Portugal for the suppression of the traffic in slaves, which had been concluded in July, 1842.  The first and second articles of the treaty declared that "the infamous and piratical practice of transporting the natives of Africa by sea for the purpose of consigning them to slavery was and should ever continue to be a strictly prohibited and highly penal crime;" and power of search of the vessels of the two nations suspected of being engaged in transporting negroes was mutually conceded. And it was also provided that if any of the enumerated things which were declared to be prima facie evidence that the vessel was engaged in the slave trade should be found in any vessel detained under the treaty, no compensation for loss, damages, or expenses consequent on the detention should be granted, even though the mixed commission should not pronounce any sentence of condemnation. Among the articles mentioned were shackles, bolts, hand-cuffs, and unusual number of empty casks and mats, and an   extraordinary quantity of rice. The first and principal question was whether the Overense was seized on reasonable grounds of suspicion of her being engaged in the slave trade; and it was well to notice that the vessel was seized in harbour and not upon the open seas.  Lord Westbury, in the case of Ricardo Schmidt (3 "Moore's Privy Council Cases," 137) said -
  "The Legislature had defined certain articles and things in the statute which, if they are not plainly accounted for, shall constitute an amount of probabilis causa sufficient to exempt the captor from consequences, even if the vessel be not condemned; but when you come to the case of a ship quietly lying at anchor in a  British harbour, and having been there for some time, not manifesting the smallest indication of anxiety to quit the harbour, but actually and plainly engaged in bona fide trade within the harbour, the obligation of a seizor to justify what he has done is a very strict obligation, and one that cannot be discharged by reference to circumstances which, per se, have not an overpowering weight on the mind at the time when the seizure was made."
  In this case the Overense arrived at Freetown without any circumstance of guilt, and it was certainly a strange thing to select a British port for the visit of a slave-trading vessel - supposing it to be such - to take in an excessive quantity of water, and, as was alleged with slaves on board. Many of the articles found on board were equally necessary for the slave trade and for innocent immigration. The Portuguese Consul stated that he received all the ship's papers soon after the arrival of the vessel in harbour, and if the Inspector-General, before resorting to the serious step of seizing her, had taken the ordinary precaution of consulting those papers, he must have seen that she was licensed to import free labourers, and this license would have accounted for most of the articles found on board, from which he had inferred that she was engaged in the slave trade.
  The Inspector-General had neglected the means of informing himself of the true character of the ship and the condition of the alleged slaves, and even if the Kroomen had been kidnapped or enticed on board to become free labourers at St. Thomas, where slavery did not exist, the kidnapping, however reprehensible, would not have justified the seizure of the vessel under the Act. Defects in the immigration law or breaches of its provisions, despicable as they might be, and worthy of strong remonstrance to the Portuguese Government, were not grounds for seizing a vessel under the Portuguese flag as a slaver.   The evidence, on the other hand, tended to show the Judges that the kidnapping was a malicious story.
  There remained for consideration the 4th section of the Slave Trade Act, 1873 -
  "Where any of the particulars mentioned in the first schedule to this Act are found in the equipment of any vessel visited, seized, or detained in pursuance of this Act, such vessel shall, unless the contrary be proved, be deemed to be fitted out for the purpose and engaged in the slave trade, and in such case, even though the vessel is restored, no damages shall be awarded against the seizure under this Act in respect of such visitation, seizure, or detention, or otherwise upon such visitation, provided that this section shall not extend to the vessel of any foreign State, except so far as may be consistent with the treaty made with such State."
  On this their Lordships were of opinion that the consent on the part of Portugal - that the finding of certain articles on a vessel should be considered as prima facie evidence of her being engaged in the slave trade - related only to vessels on the high sea, and not to vessels in a foreign port or foreign territorial waters. On the whole, it appeared to their Lordships that the Judge of the Vice-Admiralty Court came to a right conclusion, both as to the facts and the law applicable to them, and they would humbly advise Her Majesty to dismiss the appeal, with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School