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(B.) As to the claims for gross freights amounting to $1,007,153. That these claims are also greatly exaggerated appears from the several instances to be found commented on in the British reports, Chums for gross but the same fact follows beyond a doubt from the follow- fre
In a report presented by a committee of the House of Representatives of the United States in 1870, a table is to be found (Table XVI) giving the valve of the gross yearly earnings of all American vessels engaged in the foreign carrying trade from 1861 to 1870. The value of these gross yearly earnings is there stated to amount to 33 per cent. of the value of the vessels. On looking at the British tables it will be found that the amounts claimed for freight, although for individual voyages not exceeding on the average six months in duration, are more than 47 per cent. on the alleged values of the vessels, from which it would follow that these claims are exaggerated to the extent of nearly 60 per
Independently, however, of the exaggeration in amount, it is clear that a claim for gross freight as distinguished from net freight cannot be supported by any sound reasoning. It is, moreover, inconsistent with all the English and American authorities on the subject. The United States counsel seemed to have themselves thought such a claim hopeless; for, on the 19th August last, they, for the first time, asserted that these were claims, not for gross, but for net freights. sufficient on this point to say that, in the face of the well-known official estimate above referred to, according to which the gross average yearly earnings of American merchant-vessels amounted only to 334 per cent. of the values of the vessels, an assertion that claims amounting to more than 47 per cent. of such values were advanced for net and not for gross freights on voyages not exceeding, on the average, half a year in duration, is one which carries its own refutation on the face of it, especially when it is remembered that these claims are generally presented in the revised statement as claims for charter-party or bill-oflading freight.
Under these circumstances I cannot but think that the allowance of 50 per cent. on these claims, which the tribunal received with favor and is prepared to adopt, is far in excess of what would in justice satisfy them,
(C.) As to the double claims.
They consist in the main of claims made by the owners for the value of their property, simultaneously with claims advanced by insurance companies with whom the property was insured, and who paid the owners the amount of their loss. To pay the owners and the insurance companies these double claims would be clearly equivalent to paying the losses twice over. One of these claims, therefore, must necessarily be rejected.
One cannot but regret that these claims should have been advanced, and that the United States Government should not at once have expunged them as inadmissible, instead of allowing them to be included, without exception, in the total claims of the United States.
These double claims are of two descriptions: first, those which are avowedly and intentionally made, or were, to use their own words, "the claimants protest against any diminution of their claims by reason of their having been paid by insurance companies;" secondly, those which are tacitly made.
See report of committee appointed by board of trade; British Appendix, vol. vii, pp. 9, 10.
As regards the second class of double claims, viz, those tacitly made, it is enough to observe that they were pointed out many months ago in the British reports as double claims, and the United States Government, although it has had in its possession all the evidentiary documents. bearing on the same, has never denied their character as double claims. It is, therefore, clear that all these double claims, amounting to the large sum of $1,682,243, must be struck out.
(D.) As to the new claims presented, for the first time, in August last. As a majority of my colleagues have already intimated an opinion that these claims ought to be excluded from consideration in awarding a lump sum, it is only necessary for me to state that I am decidedly of the same opinion, because the claims are entirely unsupported by any evidence, and are merely based upon assumptions as to the amount of wages the officers and crews might or should have been receiving, and the amount of personal effects which they might or should have had on board at the time of capture, and which they have lost in consequence of it. I find, morever, in the revised statement presented with the United States Counter Case, claims to considerable amounts actually preferred by the officers of some of the vessels for loss of wages and personal effects, and, as I shall show, those gentlemen have been by no means disposed to undervalue their property. Finally, it seems to me entirely inconsistent both with the letter and the spirit of the treaty of Washington that, at the last moment, the request of the tribunal for explanatory tables to assist it in the discussion of the various items of claims should be taken advantage of to swell the amount already presented, without giving the British government an opportunity to advance argument and evidence in opposition to such increase.
For all these reasons I am clearly of opinion that the claims for prospective catch and for gross freights, the double claims and the new claims presented in August last, altogether amounting to the sum of $8,848,697, must be rejected.
I now proceed to consider the questions relating to the value of the property actually destroyed. It is admitted in the argument. Property destroyed. of the United States Government that these claims had never been audited by that Government. I cannot help thinking it would have been better if, before the United States called upon this tribunal to estimate the value of claims to be assessed by it without an inspection of the documents which are said to be filed at Washington, these claims had been audited under the authority of the United States Government. Had this been done I think it is only fair to assume that the very numerous demands which are manifestly extravagant would have been diminished in amount in the same manner as the claims in respect of the vessels sunk in the River Seine (more than once referred to in the British reports) were reduced after they had been thoroughly sifted by Her Majesty's government. The tribunal is, in fact, called upon to estimate the values of vessels, the age and class of which are not given, and the values of cargoes, of which neither the description nor quantity is stated. Under these circumstances it is manifest, from the experience every day gained in courts of justice, that a very considerable deduction ought to be made from the estimates presented by the claimants in respect of the losses for which they are claiming compensation. To hold Great Britain simply liable for the amounts demanded by the claimants would not be to award the latter fair compensation, but to grant them enormous profits.
I now proceed to consider the values of the vessels-and, first, the
whalers. The fact of the extraordinary express double claims advanced in respect of these vessels is of itself sufficient to make one Vtles of whalinglook with some suspicion on the other items of claim. I believe that the estimate of $100 per ton for ship and outfit, proposed in the British reports, is such as would be accepted as adequate by persons acquainted with the character and value of whaling-vessels. It is, moreover, borne out by the fact that the claims for insurance in the revised statement show that these vessels were not insured at so high a value. But I am ready to refer to a standard given by the claimants themselves. I find that, in the case of the fourteen whalers destroyed by the Alabama, with a total tonnage of 3,560 tons, a claim is advanced for vessels and outfits of $109,233, which is equivalent to a valuation of less than $115 per ton. In the case of the whalers destroyed by the Shenandoah, on the contrary, with a total tonnage of 8,560, the claim under the same head amounts to $1,325,768, or very nearly $155 per ton. I cannot see why the average value of the whalers destroyed by the Shenandoah should so vastly exceed that of those destroyed by the Alabama, and I certainly think the average in the latter case may be taken as likely to be more near the mark.
As regards the merchant-vessels I see no reason to doubt that the British average estimate of $40 per tou is adequate; but there
Values of merchantVessels.
is one mode of arriving at an average estimate which is open to no objection. It appears from the same table, in the report presented to the Congress of the United States already referred to, that the average value of American vessels engaged in the foreign trade was, in the year 1861, $11 per ton, and that it has, since the year 1862, been $45 per ton. It will be found, on looking at the United States argument, that it is there strongly urged that the depredations committed by the confederate cruisers occasioned a very serious diminution in the value of American shipping property. This assertion seems directly opposed to the statistical information given in the table I have just referred to; but whether it be or be not correct, it cannot be doubted that an estimate of the merchant-vessels at the rate of $45 per ton must be a very liberal estimate. The adoption of this valuation would cause the British allowance to be increased by $200,000, but it would cause the claim of the United States to be diminished by more than $500,000.
Claims for cargoes,
I now come to the claims for cargo. Those claims, it must be remembered, include claims for the value of goods, insurances, commissions, and profits on the same cargoes; profits which will be found to be claimed at the rate of sometimes 25, sometimes 50, and sometimes as much as 100 per cent. Moreover, it is important to observe that, as merchants generally considerably overvalue their property in policies of insurance, and always include in the amount insured the premium of insurance itself, a considerable reduction ought to be made from the amounts claimed by insurance companies. Again, for reasons fully stated in the first British report,' it is generally impossible to trace the double claims which are advanced for cargoes; and yet the probability certainly is that they exist to at least as great an extent as they have been proved to exist in the cases of vessels and freights. Taking all these circumstances into consideration, I believe that most persons who study these claims, and who are acquainted with the subjects to which they relate, will consider the reduction of 12 per cent. which has been made in the British estimate from the total claim for cargo, commission, profits, and insurances on the same, a very moderate reduction.
1 British Appendix, vol. vii, p..13.
The last item of claims to be considered is that relating to personal effects. That some of these claims are exorbitant is proved by the various instances cited in the British reports. I will direct attention to a few of them.
Chums for personal effects.
Ebenezer Nye, the master of the Abigail, a whaling-vessel of 310 tons, has claimed upwards of $16,000, or £3,200, for the loss of personal effects on board that vessel. Again, the master of the Rockingham, a vessel of 976 tons, has claimed for personal effects $8,054, or £1,600. In the Winge 1 Racer, a passenger claims for loss of office as consul $10,000, over and above $1,015 for loss of personal effects. Finally, in the Crown Point, a vessel of 1,100 tons, the master and the mate each advance claims for $10,000. Excepting in these and some other similar cases, in which the demands are evidently grossly exaggerated, all the claims for personal effects have been allowed in the British estimate, and I see no reason whatever for adding to the amount which is proposed to be allowed in that estimate under this head.
On the whole, therefore, I am of opinion that if half a million dollars were to be added to the British estimate, more than adequate compensation will in all probability be granted for any direct losses which may have been occasioned by the confederate cruisers, and that, therefore, the tribunal ought to assess these claims at an amount not greater than $8,000,000.
In the observations on M. Staempfli's calculations which I submitted to the other members of the tribunal on the 2d of September, and which will be found in the protocol of that date, I have shown that, even including the allowances of $988,000 for profits and wages of the whalers, and the allowance of 50 per cent. on the claims for freights, and striking a mean between the British estimate and the gross claims for the other items not absolutely disallowed by the tribunal, the amount should not exceed $10,000,000 in round numbers.
Cum for interest.
The tribunal having formed its estimate of the actual loss sustained in respect of ships and property at the time of their destruction, a most important question presents itself, whether, to such actual value, interest from the time of loss should be superadded. Upon this question, which is entirely in the discretion of the tribunal, according to what it may deem equitable and right under all the circumstances, we have had the advantage of very able arguments. Looking to technical considerations alone, Sir Roundell Palmer's argument appears to me to be unanswerable. But I confess I should be disposed, when able to deal with a case of indemnity, unfettered by technical considerations, as I think we may do in the present instance, to hold that where a pecuniary indemnity against loss is to be given, such indemnity is not complete unless the party is compensated, not only for the property actually destroyed, but for the profit-here to be represented by interest-which that property would have brought him. If a man loses property worth £1,000, which, but for the loss, he would have continued to turn to some profitable account, and after a given period the actual value, namely, the £1,000, is given to him, and no more, it is plain that he remains a loser of all the profit he would have realized in the mean time; in other words, he remains to that extent unindemnified. Under ordinary circumstances, therefore, I should have been willing to award interest, when awarding compensation for property destroyed. But there are in this case most peculiar circumstances which make me incline to a different conclusion.
The first is, that neither the British government, nor British subjects, were the authors of the damage done. All that can be ascribed to the
British government is want of diligence in not preventing these vessels from leaving British waters on their work of mischief. Professor Bluntschli has done justice to the British government in this respect:
Il ne faut d'ailleurs pas perdre de vue que tous ces effets désastreux sont en premier lien imputables, non pas au gouvernement anglais, mais aux croiseurs eux-mêmes. Personne n'accusera le gouvernement anglais d'avoir donné mission de détruire les navires de commerce américains, ou d'avoir, par ses agissements, entravé ou endommagé la marine américaine. Ce que l'on peut lui reprocher à bon droit, (en supposant que les faits cités plus haut doivent être considérés comme avoués ou prouvés,) ce n'est pas un fait, mais une omission contre le droit. Sa faute ne consiste pas à avoir équipé et appareillé les corsaires, mais à n'avoir pas empêché leur armement et leur sortie de son territoire neutre. Mais cette faute n'a qu'un rapport indirect, et nullement un rapport direct, avec les déprédations réellement commises pas les croiseurs. 1
American citizens have suffered by the acts of American citizens. Great Britain is to make good the injury. Why? Because, in order to commit these acts, the wrong-doers began by violating her laws, and her government was not quick enough in preventing them. But who were the American citizens who did these things and brought these injuries and losses on American citizens? Private individuals? No! Eleven States, heretofore an integral portion, and now again an integ ral portion, of the North American Union-in other words, an integral portion of the body who are the plaintiffs against Great Britain in this memorable suit. And, to make the anomaly of the position more complete, but for concessions voluntarily made, Great Britain would have been enabled to say, first, that she was not, and could not be, liable to another nation for losses sustained through breaches not of international but of her own municipal law; next, that if she, on the one hand, was liable for injury done to American citizens, because her government by greater diligence might have prevented them, she, on the other hand, might have claimed to be recouped by States, now forming an integral part of the Union, as having been the actual wrong-doers through violation of her law, whatever sum she was obliged to pay as compensation. For, had the Confederate States possessed, or had they succeeded in acquiring an independent nationality, Great Britain would have had a perfect right to insist on being indemnified for a pecuniary loss incurred through a violation by them of her neutrality and of her law. The nationality of those States is now again united with and merged in that of the United States, now plaintiffs against Great Britain. And though, the compensation being asked for losses suffered by individual American citizens, and not by the Government of the United States, Her Majesty's government were, in my humble opinion, right in not taking their stand on such an objection, I cannot but think that, looking to all these circumstances, this tribunal, in the exercise of the equitable and unfettered jurisdiction with which it is invested, might well decline to add interest to the amount of the loss actually sustained.
Even if interest should be given, it seems to me that, as the United States might have had, as far back as the year 1869, an arbitration for the purpose of having these identical claims adjudicated upon, an arbitration having been offered by Great Britain and accepted by the Execu tive of the United States, and having only failed because rejected by the American Senate, all claim to interest, as from that date, should, as matter of equity, be disallowed by the tribunal.
At all events, I can see no reason why, under all these circumstances, anything more than the lowest rate of interest anywhere prevailing in the United States should be allowed, and I cannot concur in the rate of 6 per cent. adopted by the tribunal.
1 "Revue de droit international, 1870," p. 473.