United States v. Taylor (188 U.S. 283)/Dissent Brown

Mr. Justice Brown, with whom was Mr. Justice Brewer, dissenting:

I am unable to distinguish this case in principle from that of United States v. Dewey, just decided, 187 U.S. 254, 23 Sup. Ct. Rep. 415. In that case, the vessels were sunk and partially destroyed, but were subsequently raised, hauled into the slip, sufficiently cleaned up and overhauled to put to sea for Hong Kong under their own steam. The repairs were completed at Hong Kong, and the vessels commissioned as a part of the Navy.

In the present case, the Infanta Maria Teresa was also sunk and partially destroyed, but was raised, taken to Guantanamo, temporarily repaired, a crew put on board, was started for a port in the United States under her own steam, and was subsequently lost in a gale of wind. All the operations connected with her raising and repair were conducted by contractors engaged by the Navy Department, and supervised by a board of that department.

I submit that the fact that the vessels in Manila bay were actually repaired and commissioned as vessels of the Navy, and the Infanta Maria Teresa was not, does not constitute a distinction in principle between the two cases; but the fact that in both cases the government elected to take possession of the vessels, and undertook to repair them for purposes of its own, is the turning point in the case. Had the vessels in Manila bay been abandoned after being raised, and before they were repaired temporarily, had the Infanta Maria Teresa been either abandoned or lost before reaching Guantanamo bay, or she had been there abandoned, I should have had no doubt that they could not either of them be considered as prizes of war. But the fact that, after being examined, the Maria Teresa was temporarily repaired at Guantanamo and sent to Norfolk, with a crew on board and under her own steam, indicates clearly to my mind that the government had elected to make the vessel its own property, and her subsequent loss was the loss of the government and not of the captors. In fact, it is the election, and not the result of the election, which determines the ownership of the property.