United States v. The Nuestra Senora De Regla/Opinion of the Court

'I avail myself of this occasion to offer to you assurances     of my very high consideration.

J. C. BANCROFT DAVIS,

'Acting Secretary of State.' * On the second of June following, the cause was referred to one of the commissioners of the court to ascertain the amount of damages the claimant had sustained by the seizure and detention of the vessel. The commissioner made his report on the twentieth of May, 1871, fixing the damages for the detention at the rate of $200 a day from November 29, 1861, to June 20, 1863, the date of the decree for restoration, with interest at 6 per cent. per annum, amounting to $167,370.66 3/2, and allowing for the expenses and services of an agent, remaining with and attending to the vessel, $5,680; for counsel fee in defending the proceedings, $5,000; and for the value of the vessel at the date she should have been restored, with interest added, $36,833.33 1/3; or a total of $214,884. Exceptions were taken to this report by the United States, but they were overruled, and a decree rendered for the full amount allowed by the master, with interest added.

From that decree an appeal was taken to this court, where, at     the October term, 1872, it was decided 'that the vessel was      not lawful prize of war or subject of capture, and the      corporation which owned her is doubtless entitled to fair      indemnity for the losses sustained by the seizure and      employment of the vessel; but it may be well doubted whether      it is not more properly a subject of diplomatic adjustment      than determination by the courts.' It was also said in the      opinion: 'The decree of the district court included the sum      of $5,000 for counsel fees. We think that the amount was     greatly excessive, and the allowance for counsel fees wholly      unwarranted.' For the errors thus indicated the decree was      reversed. The Nuestra Senora de Regla, 17 Wall. 31. The case     was then remanded for further proceedings in accordance with      the opinion. On the twenty-second of July, 1873, after the     mandate was filed, a second reference was made to the      commissioner 'to assess the damages of the claimant of the      vessel sustained by him in consequence of the seizure and      detention of the vessel, and that on such reference all the      proofs already taken in the cause or before the referee be      used, together with such other proofs as may be put in by      either party.'

Under this reference the commissioner again reported that the     United States continued to use the vessel after she was taken possession of by the navy department pursuant to the order of      August 22, 1862, until the twentieth of June, 1863, the date      of the decree for her restoration, and that she had never      been restored to the owners, or her value paid. He therefore     allowed—

For detention from November 29, 1861, to June 20,

Interest at 6 per cent. to date of report,. 81,698

For value of vessel, ascertained to be. 30,000

For expenses of agent, 568 days at $10,. 5,680

$252,527

To this report exceptions were filed on behalf of the United     States, but they were overruled by the court, and a decree      entered March 8, 1879, for the amount found due, with      interest from the date of the report, or in all $308,932.38. From that decree this appeal was taken.

Asst. Atty. Gen. Maury, for the United States.

Wm. Allen Butler and W. R. Beebe, for appellee.

[Argument of Counsel from pages 99-100 intentionally omitted]

WAITE, C. J.

The facts to be considered on this appeal are as follows:

That the steamer was not lawful prize or the subject of capture was expressly decided on the former appeal. It was also impliedly settled that the capture was without probable cause, for it was said the owner was undoubtedly entitled to a fair indemnity for the losses sustained, the only difficulty being as to the amount. These questions are, therefore, no longer open. Clark v. Keith, decided at the present term, [1 SUP. CT. REP. 568;] Sup'rs v. Kennicott, 94 U.S. 499.

The first of the remaining questions to be considered is whether & decree can be entered against the United States for damages. As the capture was made by the army, or by the army and navy operating together, it inured exclusively to the benefit of the United States. There is no distribution of prize money in such a case. U.S. v. Steam Vessels of War, decided at this term, [1 SUP. CT. REP. 539;] The Siren, 13 Wall. 394. The United States were, therefore, in legal effect the captors, and they came voluntarily into court to secure for themselves the benefit of what had been done. They deliberately adopted the acts of the military and naval officers as their own, and came, as captors, to condemn their prize. Offers to purchase the vessel were made and declined before she was seized, and soon after the seizure she was chartered and put into actual use without any attempt at securing an adjudication. It is evident, also, that the capture must have been the subject of diplomatic correspondence between the government of Spain and the United States before the vessel was brought in for adjudication, because on the sixth of May, 1862, after the vessel got to New York, and before the libel was filed, Mr. Seward, the then secretary of state, wrote the district attorney for the southern district of New York as follows:

'SIR: Noticing the arrival at New York of the Spanish steamer     Nuestra Senora de la Regla, which was seized at Port Royal by      General Sherman for an alleged illegal breach of neutrality,      I now transmit the papers found on board of her, and an      abstract of them which I caused to be prepared and which you      may find useful.' Although the libel was filed on the ninth of June, 1863, and the elaim was promptly put in, the adjudication was not had until June of the following year, when all further proceedings were stayed with the consent of both parties to await an adjustment of damages by the two governments. Nothing further was done until nearly seven years afterwards, when the secretary of state informed the Spanish government of the wish of the United States that the parties interested should apply to the court, which still retained jurisdiction, for such relief as justice demanded, and in the mode that tribunal should deem most proper and convenient. Thereupon, on motion of the claimant, and with the consent of the United States district attorney, the reference was ordered to ascertain the damages. Under these circumstances we cannot but think the United States have voluntarily submitted themselves to the court at the instance of the Spanish government, and with the consent of the claimant, for the purpose of having the questions of damages growing out of the capture judicially settled according to the rules applicable to private persons in like cases.

It is objected, however, that the executive department of the government had no power, in the absence of express legislative authority, to make such a submission. It was the duty of the United States, under the law of nations, to bring all captured vessels into a prize court for adjudication. If that had not been done in this instance, the Spanish government would have had just cause of complaint, and could have demanded reparation for the wrongs that had been done one of its subjects. The executive department had the right to bring the suit. In that suit it had been determined that the capture was unlawful. Necessarily, therefore, the question of damages to the owner of the captured vessel arose. Since, without the consent of the United States, no judgment for damages could be rendered against them in the pending suit that could be enforced by execution, the Spanish government had the right to assume the prosecution of the claim, and it did. Necessarily the negotiations on the part of the United States under this claim were conducted by the executive. After long delay no agreement was reached, and as a last resort for ending the controversy it was determined to refer the whole matter to the court for judicial inquiry and determination. We see no reason why this might not be done in such a case. It is true, any judgment that may be rendered cannot be judicially enforced, but the questions to be settled are judicial in their character, and are incidents to the suit which the United States were required to bring to enforce their rights as captors. It is too late now to insist that the case is not one of prize, because in the libel it is expressly alleged that the vessel was captured as lawful prize, and condemnation was asked on that account. When, therefore, the United States, through the executive of the nation, waived their right to exemption from suit, and asked the prize court to complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission, and that it is the duty of the court to proceed to the final determination of all the questions legitimately involved.

The next inquiry is as to the amount of damages. The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. 2 Wheat. App. 11; The Appollon, 9 Wheat. 377; The Lively, 1 Gall. 327; The Corier Maritimo, 1 Rob. 287.

Upon the facts in this case there can be no doubt of the propriety of such an allowance for the extraordinary detention of the vessel before she was delivered up for adjudication, especially since she was detained for the express purpose of use by the United States. And as to the amount of the allowance there is no opportunity for discussion. The United States were willing and actually contracted to pay $200 a day for her use if she was not in fact lawful prize, and that is shown to have been a reasonable price for her charter at the time. She was seized on the twenty-ninth of November, and it is fair to assume that if due diligence had been used she might have been surrendered for adjudication by the sixteenth of December, when her charter began to run. She was not actually surrendered until the ninth of June-a delay of 175 days beyond what was necessary. It is not disputed that her value at that time was $30,000. She cost when built $50,000, and was new when captured. As she has never been restored under the order to that effect, there can be no doubt of the liability of the United States for her value, when at their request she was delivered into their possession by the court. It is not a matter of any importance that the certificate of deposit in the treasury of the amount of her appraised value was not filed. By taking the vessel on the terms imposed by the court, the United States impliedly agreed to restore her in as good condition as she was when taken, or pay her value in money. By the surrender of the vessel for adjudication, the United States relieved themselves from any further liability for damages in the way of demurrage, and became bound for the vessel instead.

The allowance for demurrage includes reasonable compensation for the pay and expenses of an agent to look after the interests of the owners up to the time of the delivery of the vessel to the navy department by the court. After that no agent was necessary. From that time the case stood as though a sale had been made and the proceeds paid into the registry of the court.

Our conclusion is that damages should be allowed as follows:

For unnecessary and unusual delay in proceeding to

adjudication, 175 days, at $200,... $35,

For value of vessel,................ 30,

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To which add interest, at the rate of 6 per cent. per annum, from the time of the order of restitution, June 20, 1863, until the decree.

The decree of the district court is reversed, and the cause remanded with instructions to enter another decree in accordance with this opinion.