run our or Msxroo. 39
vateer, but had a wish so to employ her, the fulfillment of which wish
depended on his ability to obtain funds in the West Indies for the
purpose of arming and preparing her for war, then the defendant is
not guilty." The Bio I-Iacha episode in this case was far more com-
pletely independent of any fixed intention of wrong-doing at the time
the vessel sailed, than was the Bolivar’s cruise when she left Balti-
more. ·
In its other relations, the Rio Hacha incident, as one of the results
of the interview between Capt. O’Brien and Perez & C0., the ostensi-
ble consignees ofthe military supplies at Baranquilla, does tend to
give support to the inference which numerous other circumstances
also indicate, viz., that these supplies were ordered for the direct
and immediate use of the insurgent forces at Savanilla and Baran-
quilla; and that the insurgent government was probably the benefi-
cial purchaser, acting through Perez & Oo., as its agents only. On
the latter point, however, there is no certain proof. It may be as-
sumed that the military supplies were designed for the immediate
use of the troops there, and that Gaitan, as agent of the de facto
government, came to New York in its behalf to expedite as rapidly as
possible the obtaining and shipping of these supplies. But it would
not follow that because the insurgent government, as between it and
Perez & (Jo., was the real principal, that Perez & Co., who ordered
the supplies, can be ignored; or that Mr. Triana, in New York, in
acting upon and filling the orders of Perez & Co., his supposed prin-
cipals, and in shipping the goods to them from this port, is to be
treated as dealing directly with the insurgent government. He has
a right to stand upon the contract according to its form, because its
form in· such case is material. A contract of this kind stamps the
transaction, so far as our own citizens are concerned, as a commer-
cial venture only; because it is strictly and wholly, so far as our cit-
izens are concerned, a purchase and shipment by one merchant
here, upon the order and for the account of another merchant abroad.
u I do not include cases where the use of a foreign merchant’s name
by a belligerent is known to be a mere sham. But there is not suf-
ncient evidence here to sustain that theory. All that can be legiti-
mately inferred is that the supplies were intended for the immediate
use of the insurgent government through the consignment to Perez
& Co., and upon their order. The fact that Gaitan was in constant
communication with Mr. Triana, and that he directed all the impor-
tant arrangements for the dispatch ofthe goods, warrants that infer-
ence; but that is not enough, against Mr. Triana’s testimony, to
sustain the charge that the supplies were furnished directly to the
insurgent government.
The case turns upon the construction to be given to the language
of section 5283. The counsel for the government contends that, in
substance, the steamer was engaged as a transport in the service of
the insurgent government; and that she was ntted out in New York,