2836.
PUBLIC RECORD OFFICE
Reference :-
miniwwim ELLEC.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 501.
(GIBRALTAR.)
QUEEN'S ADVOCATE to FOREIGN OFFICE.
MY LORD,
Temple, March 17, 1868. I AM honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 28th ultimo, stating that he was directed to transmit to me the accompanying correspondence relative to the seizure by the Spanish revenue cruiser "La Viva" of the Gibraltar vessel “Garibaldi" while on a voyage from that port to Falmouth, and to request that I would take this case into consideration, and furnish your Lordship with my opinion thereupon.
Mr. Hammond was also pleased to call my attention to the question raised by the owners of the vessel as to the real limits of Spanish maritime jurisdiction in the Straits of Gibraltar, and along the neighbouring seaboard of Spain, and requested that I would furnish your Lordship with any observations I might have to make upon this point.
In obedience to your Lordship's commands I have taken these papers into considera- tion, and have the honour to
Report
That this case is distinguishable from the cases of the "Amalia" and the "Catalina" which have been recently under your Lordship's consideration. In both of those cases it was alleged by the Spaniards that the vessels at the time of seizure were within a marine league of Spanish land, and their seizure, if made within that distance, was clearly valid whatever may have been the character of the subsequent proceedings for their condemnation.
But in this case, if credit is to be given to the master and crew of the "Garibaldi " the ́ seizure of that vessel was effected by a Spanish guarda costs in the Gulf of Cadiz at a distance of more than four leagues from any Spanish land. The vessel appears to have been at the time of seizure navigating the high seas on a course not merely far outside the maritime territory of Spain, but also far outside the fiscal zone of two leagues, within which vessels with contraband goods on board are forbidden by the municipal law of Spain to navigate, except under certain conditions of necessity, which did not exist in the present case. According to the statement of the master and orew, if it cannot be rebutted by the seizors, it would seem that the seizure of the "Garibaldi" cannot be defended upon any ples of necessary precaution on the part of Spain, ratione loci to prevent smuggling, as her own municipal law has fixed the limits of those necessary precautions to a distance of six miles from her coasts, much less upon any principle of territorial right. But there are circumstances in this case which may induce your Lordship to direct further inquiry to be made.
Mr. Consul Dunlop in his letter to Mr. Freeling of 22nd January after reporting the result of his own examination of the master and crew, which confirms their previous depositions at Huelva, states that, although no doubt exists in his mind of the fact that the vessel was seized at sea far outside Spanish waters or jurisdiction, the situation or position of the " Garibaldi," when taken, as declared by Ferpo her master, appears to him suspicious of the intention to smuggle, being certainly out of the course of vessels sailing from Gibraltar to England.
This remark of Mr. Dunlop deserves the more attention, as it appears from the master's affidavit, made on February 1st 1868 before the captain of the port of "Garibaldi" left Gibraltar, that the wind had been from the eastward ever since the Gibraltar, so that there was no necessity on account of the wind for the vessel to hug the Spanish coast, as she had evidently done ever since she had sighted Tarifa. Unfortunately for the owners there is nothing forthcoming from on board the vessel to support her alleged destination to Falmouth, except her papers, which may be colourable. All her crew appear to have shipped for a voyage cut and home again to Gibraltar, and the single passenger on board her, whose destination is not deposed to by her master, does not appear to have himself made any statement.
Further, it may be gathered from the depositions, that the "Garibaldi" had been much nearer inshore opposite Huelva early in the morning, and that she had hoisted more sail upon seeing the guarda costa.
It would also appear from the subsequent deposition of the master before the captain
1C978.-678.
25. 586.