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nent was obliged to accept the wreckers’ terms at the port of entry. he. cause the brig lay under the guis of the privateer, and the authorities declared their inability to protect him."1
Having recovered possession of his vessel and a portion of the cargo, the master of the Emily Fisher proceeded on his voyage. It is admitted, in a memorandum inclosed in a dispatch from the act
ing governor of the Bahamas of the 17th of February last,
that “from inquiries which have been recently instituted, there is very little doubt that the statements contained in the deposi. tion of Captain Staples are substantially correct, so far as they relate to what took place in Fortune Island." It seems not improbable, indeed, that the authorities may have really been unable to afford any protection to the master of the Emily Fisher, the place being a small port in a remote island. The magistrate, Mr. Burnside, who was at this time absent, speaks in his report quoted above, of his inability to take action against the supposed Captain Case; "eren if he had been armed with power." 3 The authorities, in Mir. Burnside’s absence, probably consisted only of the customs collector, and perhaps the “assistant magistrate,” mentioned in Sampson's atidavit. It does not, moreover, appear how far Mr. Staples made then acquainted with what had happened previously to the arrival of this vessel at Long Cav.
The question of the capture of the Emily Fisher, as I have already said, seems not to have formed the subject of any complaint up to the time of the present arbitration, and all the information that appears to have reached the government at the time is contained in the following passage of Mr. Burnside's report, which shows no trace of any improper proceedings having been committed or tolerated at Long Cay:
I have heard from Long Cay that the Retribution, subsequent to the affair of the Hanover, captured an American brig in the neighborhood of Castle Island-the Emily Fisher, with a cargo of sugar-that the commander of the Retribution ordered her to be ru on shore near Long Cay, and that subsequently she was extricated from danger by the wreckers, who carried her to Long Cay, where salvage was awarded to che wreckers, and a portion of the cargo sold to pay the salvage and expense, and the Emily Fisher then proceeded with the balance of lier cargo to New York.
On this latter occasion the Retribution did call at Long Cay, and some of her officers had communication with Mr. Richard Farrington, and at that time the supposed Washiington Case was seen on board the Retribution ; but I do not know in what capacity.
There seems no ground whatever for saying that either in respect to the lanover, or to the Emily Fisher, any charge of want of due diligence can be sustained against the British authorities.
The Retribution remained at Long Cay, according to the evidence at: terward given by Mr. Farrington at the trial of Vernon Locke, not more than a day. Shortly before the end of February she arrived at Nassau, where, it must be remembered that none of lier previous proceedings were at the time known to the anthorities. It is stated in the argument of the United States that
The “special leave” called for by the British Government, mder date of January 31, 1802, seems never to have been asked for or granted. Her commander was not even called upon for his comission. All that occurred upon ber arrival is thus stated by the pilot : "She had a small gun on deck. The captain told me he was from Long Car! asked the captain where lie was from. He answered, ‘Long Cay' I saw from the look of the vessel and the appearance of the crew, their clothing, that she was likely to be an armeil vessel. I then asked him if she was a vessel of war. I begged him to excuse my being so particular, is I was instructed to do so, to put such questions. He told me she was an armed vessel." 6)
"United States Documents, vol. vi, pp. 730, 739.
Here the quotation ends, but the deposition of the pilot, when referred to, is found to continue as follows: “I then told him he could not go into port. We rounded to immediately, and came to anchor;" and the pilot goes on to say that the captain came on shore in bis boat.
And in the evidence of Mr. Taylor, at that time the acting receivergeneral at Nassau, given afterwards at the trial of the Etta, it is stated that "the Retribution did not enter as a trader in the port of Nassau; she was treated as a confederate vessel of war."? It seems obvious, there. fore, that her character was verified and the necessary permission obtained before she was allowed to enter the port. This view receives ad. ditional corroboration by the notice inserted in the Bahama Herald of the 28th of February, to the following effect:
The southern gnn-boat Retribution put in here on Thursday last for the purpose of undergoing repairs, if permitted to do so by his excellency the governor. She has since been condemned, and is to be sold at public auction on Monday.3
The vessel was, as is stated in this announcement, condemned as unseaworthy by a board of survey. Her lull was sold on the 3 of March, 1863, for £250, to Messrs. Perpall & Co., merchants, of Nassan, there being at the time no regulation to prevent the dismantling and sale of belligerent armed vessels in British ports. By Messrs. Perpall she was again sold for the same sum to a Mr. Thomas Stead, who was at the · time a clerk to some parties engaged in the blockade-running trade.
By him she was registered on the 10th of April, 1863, as a British vessel, under the name of the Etta, and it is said that an attempt was made to run the blockade with her, but failed. In June, 1863, she was again sold by public auction to the firm of Renouard & Co., of Nassau, who, having bought her for £158 and repaired her at a cost of £200, sent her with a cargo of fruit to New York, where she was seized,"libeled in the district court of New Jersey, and ultimately adjudged as forfeited to the United States."
This terminates the history of the Retribution. Into the steps.taken by the authorities at Nassau for the punishment of the principal offender it is scarcely necessary to enter in detail, as they do not affect the acts previously committed by the vessel. They are briefly as follows: The first information received by the governor as to the sale of the cargo of the Hanover at Long Cay was given in a letter dated the 11th March, 1863, from a Mr. Jackson, agent at Nassau for the American underwriters. The Retribution had at this time been sold to private owners, and although it was said by Mr. Jackson that the officers of that vessel were residing in Nassau, the attorney-general was of opinion that the facts as related were not sufficient to render the parties criminally liable.' A further representation was made on the same subject in April, 1863, by the United States Government through the British minister at Washington. Inquiries had in the mean while been made by the governor on the advice of the attorney-general, which led to the report of the resident magistrate, Mr. Burnside, dated April 20, 1963, of which I have quoted some passages. This report rendered it clear that the pretended master of the Hanover had been guilty of forgery aud personation, and
i British Appendix, vol. v, p. 191.
2 Ibiil., p. 196.
wich Great Britain been held respoust ble.
the attorney-general received in the following month information pointing to Vernon Locke, then in the colony, as the guilty person. As the witnesses were all at a considerable distance, the ordinary process of obtaining sworn information on which to found a warrant would bare caused considerable delay; the attorney-general therefore availed himself of the power given him by a local act, and issued a precept to the police magistrate at Nassau requiring him to issue a warrant against Locke. The latter was accordingly arrested, and, after a long examination, was committed for trial, but escaped, forfeiting his bail. He was, however, re-arrested and brought to trial; but the evidence being insufficient on some of the essential points, lie was finally acquitted.? I have now gone through the cases of all the different vessels in respect
of which claims have been preferred for losses sustained has through the alleged want of due diligence on the part of the
British government. After all that has been said and written, it is only in respect of two vessels, both equipped at the very outset of the civil war, and before the contrivances resorted to had be. cone known by experience, that this tribunal, which has not shown a disposition to take too indulgent a view of the fulllment of neutral obligations, has been able to find any default in British authorities at home; while in respect of a third, the tribunal, by a majority of one voice only, has fixed the government with liability for an alleged error in judgment of the governor of a distant colony in respect of allowance of coal, and for the want of vigilance of the police in not preventing men from joining a confederate vessel at night. We have here the best practical answer to the sweeping charges so perseveringly brought against the British government and people.
The tribunal having thus settled the instances in which it is prepared to hold Great Britain responsible, we have next to consider the important question of damages. The first question which presents itself on approaching the subject of
pecuniary compensation is, whether the tribunal ought to
award a sum in gross, or whether it would be advisable to refer the amount of compensation to be settled by assessors under the provisions of the treaty of Washington. On the one hand, as it is atlmitted that these claims have never been audited, or even been bona file examined by the Goverment of the United States, it must necessarily be extremely difficult to estimate the amount which should be awarded in respect of them; more especially as it becomes apparent that a large proportion of them are most extravagant in amount, while none of the ordinary documents evidencing the value of shipping property or merchandise have been brought before the tribunal. On the other hand, it is for many reasons desirable that the matters in dispute should be disposed of and settled as soon as possible, so as to put an end to all further disputes, as well as to avoid giving the opportunity, which would be afforded by sending the settlement to assessors, to invent fresh claims and present them from day to day before the latter. On the whole, I have come to the conclusion that, if the clearly inadmissible claims be rejected, and the extravagant claims properly reduced, justice may substantially be done by awarding a lump sum, and that the advantage of such a course would counterbalance the disadvantages which it no doubt involves.
The claims for individual losses, which were in April last advauced in
Award of a sum in E15.
· British Appendix, vol. v, p. 23.
Amount of clailos.
Claims for cost of
the revised statement, amounted to $25,547.161; besides which a claim for “costs of pursuit and capture,” exceeding $7,000,000, was preferred on the part of the United States Government. To ail which was superadded a claim for interest of 7 per cent. per annum from the times of capture until payment. These claims have, however, to be diminished by reason of Great Britain having been pronounced by the tribunal to be liable in respect only for the captures made by the Alabama, Florida, and Shenandoab, and for those made by the latter only after her departure from Melbourne. On the other hand, the claims in respect of the other vessels having been rejected, the representatives of the United States, on the 19th of August last, presented new and increased claims to the extent of $2,150,000, so that the claims then advanced by the United States in respect of those captures, for which Great Britain has been held liable, amounted, after correcting certain admitted errors of calculation, to $19,146,414, over and above a claim of $6,735,062 for the cost of pursuit and capture in respect of the three vessels, and the claim of interest at the rate of 7 per cent.
I concur entirely with the rest of the tribunal, in holding that the claim for cost of pursuit and capture must be rejected. This item of expense formed part of the general expense of the purui ani cupture. war. The cruisers employed on this service would, probably, have been kept in commission had the three vessels in question never left the British shores.
We have therefore only to deal with the clam for losses sustained by individual citizens.
Now there can be no doubt that the only damages which the tribunal is authorized to award under the treaty for the indemnification of American citizens must be contined to loss actually sustained by destruction of ships, cargoes, or personal effects. Where damage to property arises, not directly froin willful injury, but indirectly only, from want of due care, an indemnity against actual loss is all that, by the law of England or America, or by any principles of general jurisprudence, can possibly be awarded.
If, therefore, this tribunal, instead of sending the amount to be paid by Great Britain to be ascertained by assessors, should think fit to award a sum in gross, as it is empowered to dlo by the treaty, it must still, in tixing the latter, proceed on the best estimate it may be enabled to arrive at, on the data before it, of the losses actually sustained by American citizens through the three ships for which Great Britain is to be held liable.
The claims for individual losses by reason of property destroyed by the three ships in question amounts to the sum of $19,146,414; but this amount includes items which involve important questions of principle, and deserve special consideration,
These are: (A.) The claims in respect of the whaling-vessels destroyed, for loss of prospective cateli, amounting to.
$4,009, 301 (B.) The claims for gross freiglits, amounting to
1, 007, 153 (C.) The double claims, amounting to
1,642, 243 (D.) The new claims, preseuted for the first time on 19th August, amount
Question of dam
Claims for pros.
(A.) There can be little doubt that the amount claimed for the prospective catch of the whalers, which is, in fact, about double the value assigned to the vessels and their outfits, is so ex- pective catch. travagant as almost to justify at once the rejection of the whole claim.
The true character of these claims will be seen by comparing the amount of the demands now made for the prospective earnings of the whalers, with the original list of claims forwarded by Mr. Seward to Mr. Adams in 1866, and communicated by the latter to the British government. It thus appears that these claims have, without any assignable reason, increased to such an extent that they are now sometimes double, sometimes treble, and sometimes even more than five times what they were in the original list. The following table exhibits some of the more striking cases:
Many other similar instances of extraordinary and arbitrary increase might be cited, but the above will suflice to show (what, indeed, a mere comparison of the claims themselves with the value and tonnage of the vessels but too clearly proves) that these demands are of a most extor. tionate character. But, independently of the undeniably exaggerated amount of the claims, a demand for gross prospeciive earnings as distinguished from net earnings is quite incapable of being maintained. This is admitted in the argument of the United States, and is clearly demonstrated in the British report. According to the decisions of the Supreme Court of the United States, the only allowance which ought to be made in respect of prospective catch is in the nature of interest frem the time of the destruction of the vessel.
I should myself be disposed to adopt a more liberal mode of compen. sation, and to award for prospective profits a reasonable percentage on the values of the vessels and outfits; but I cannot but think that if a year's wages is to be awarded, as proposed, for the officers and crews, the amount of 25 per cent. on those values as claimed in the American tables presented on the 26th of August, in case of the claim for prospective catch being disallowed, far exceeds what is properly assignable. The total amount claimed for the whaling vessels and outfits, an amount, which, as I shall presently show, bears every sign of great exaggeration, is $1,750,691. A claim of $659,021 is advanced for secured earn. ings. To award a further sum of $100,000, as claimed, in lieu of prospective profits, would make a total allowance of over $1,000,000 (or 60 per cent. of the original values of the vessels and outfits) for secured and prospective outfits alone; in addition to a sum of $588,000, or more than 30 per cent. more, for the wages of the officers and crew, (which are supposed to come out of the gross earnings,) and this irrespective of the fact of interest being claimed on the whole from the date of the capture.
See Mr. Justice Story's judgment in the case of the Lively (1 Gallison, 315.) British Appendix, vol. vii, pp. 13, 14.