38 FEDERAL REPORTER.
inal destination of the ship. Nothing in the charter, or in the prep-
arations in New York, countenances such an hypothesis. Every in-
dication is to the contrary. The direction of the captain to observe —
the orders of the two passengers has evident relation only to the land-
ing of the cargo of military supplies, concerning which there was
ground for such precautions, because the supplies were liable to cap-
ture. There is no evidence and nothing to warrant the inference that
the ship was designed, when she left New York, to be placed in the
service of the insurgents after the landing of the military supplies at
Savanilla. And the comparatively moderate compensation agreed on
for the Bio Hacha trip, and the complete absence from the steamer
of every kind of armament, forbid the assumption that the captain
either intended to incur, or expected to incur, any of the hazards of a
military enterprise. It was shown, moreover, that the diversion of
steamers to transport troops upon short voyages like this was not
uncommon upon that coastl The trip was expected to occupy but
threeor four days. The compensation was liberal, considered as an
ordinary and peaceable commercial adventure, but preposterously
low as a diversion of the steamer to a military and hostile use. The
‘ sequel, also, does not show any circumstances that Capt. O’Brien could
be reasonably presumed to have been able to foresee, or to expect,
r that should have deterred him from accepting such a contract for
transportation as a mercantile venture in behalf of l1is owners. The
testimony of McCarthy, the first officer, so far as it tends to incrimi-
nate the captain, is not only opposed to the weight of other testimony,
but is plainly inconsistent with, if not directly contradicted by, Mc-
Carthy's entries in the log kept by himself.
I must regard the excursion to Bio Hacha, therefore, as wholly dis-
connected from the fitting out of the vessel in New York, and as af-.
fording no ground for a proceeding against the ship under our mu-
nicipal law, which has reference solely to plans formed and completed
in this country. So strictly in that respect is the statute in question
_ construed, that in the case of U. S. v. Quincy, 6 Pet. 445, the supreme
court held that "the intention with respect to the employment of the
vessel should be formed before she leaves the United States; and
this must be a jimcd intention." Accordingly, in that case, where the
defendant was indicted for fitting out the Bolivar as a privateer at
Baltimore, the court held that instructions should have been given
to theijury that if, "when the Bolivar was Htted and equipped at Bal-
timore, the owner and equipper intended to go to the West Indies in
search of funds with which to arm and equip the said vessel, and had
no present intention of using or employing the said vessel as a pri-
vateer, but intended, when he equipped her, to go to the West Indies
to endeavor to raise funds to prepare her for a cruise, then the de-
fendant is not guilty;" also, “that if the jury believe that when the
Bolivar was equipped at Baltimore, and when she left the United
States the equipper had no fixed intention to employ her as a pri-