may be true as to that, it is very certain that Great Britain, having contributed more than any other nation to induce the United States to forbear, by denying the right, cannot now fairly claim for her subjects the benefit of a principle which, at the time, she so stoutly denied. Municipal regulations prohibiting neutral import trade with any part of the port of New Orleans not in Federal possession, would have been as obnoxious to Great Britain as if a like attempt had been made at that time concerning Mobile, Charleston, or Savannah. The principle which would have justified it in the one case, would have maintained it in all. If the consideration of the case left it doubtful whether the judgment of the Supreme Court was in accordance with public law, it would be our plain duty, according to all authority, to disallow these claims. So much deference in a case of doubt is due to a deliberate judgment of a court whose independence, impartiality, and learning has given it a character in Great Britain not less lofty than it possesses at home. But I do not doubt. Comments and criticisms upon the judgment of the court had fallen under my eye; trusting to which, I confess I had been somewhat impressed with serious doubts (to say the least) of the legality of the condemnation. But a very careful study of the case shows that, in making such criticisms, no account has been taken of the important fact that the possession of the United States forces at New Orleans did not extend to the whole port when the ship was seized; no such entire possession being anywhere directly asserted. That the error is one of inference, resulting from the fact, doubtless, that the wider area of the port, as contradistinguished from the city of the same name, has usually escaped attention. It follows, therefore, that the principle supposed to be violated by the court was really not violated at all, and that the question was not that which has been sometimes supposed. It is not, I may hope, improper to say that the best care and judg ment which I am able to bring to the consideration of the case has resulted in a clear conviction that the condemnation of the Circassian was correct. O. Opinion of Mr. Commissioner Frazer in the cases of the Boyne, the Monmouth, and the Hilja, Nos. 216, 315, and 467. (See p. 153, ante.) The allowance of prospective earnings by vessels was denied by the tribunal at Geneva unanimously. It is not, so far as I am aware, allowed by the municipal law of any civilized nation anywhere. The reason is obvious and universally recognized among jurists. It is not possible to ascertain such earnings with any approximation to certainty. There are a thousand unknown contingencies, the happening of any of which will render incorrect any estimate of them, and hence result in injustice. Who can say that the Monmouth would have reached Savannah at all? That she could have procured a cargo of cotton at ąd. per pound, the lowest freight in proof? Who can say that she would have got better or as good rates as that? Why could she have done better? There is no reason. Who can say that she could have been laden and sailed before the blockade would have stopped her? The witnesses do Can not say so, but only "if she had met no detention or accident." this commission say so? It is palpable that we can only conjecture, and conjecture is no fit basis for an award of damages. We should have had evidence more satisfactory from the claimant, such as the prevailing rate of charter of such a vessel at the time and place. Under such circumstances we are left to estimate the value of the vessel for return-cargo upon very unsatisfactory evidence. I base my estimate upon cotton-freight at d. per pound, because there is, in my judgment, a greater probability, in view of all contingencies, that this is above rather than below a just estimate. These observations apply also to the case of the Boyne, heretofore decided. I now doubt whether this is not too much. It assumes that each contingency would have been avoided, the happening of any one of which would have prevented this vessel from doing as well as some others; and this assumption in favor of the claimant is quite as much as, in my judgment, we may make, with due regard to public law, as declared at Geneva, and to the principles of justice, as recognized every. where. The Monmouth, (No. 315.) The President, by proclamation of April 19, 1861, gave public notice of a purpose to blockade the ports of South Carolina, Georgia, and of the States south thereof, announcing that a "competent force would be posted" for that purpose. The proclamation announced further that any vessel approaching or attempting to leave "either of said ports" with a view to violate "such blockade," would be warned by the commander of "one of the blockading vessels," who would indorse such warning and the date thereof on her register, and any subsequent attempt of the same vessel to enter or leave the blockaded port" (certainly meaning every port covered by the warning) would result in capture. It cannot be supposed that it was intended that this warning was to be repeated off each port blockaded. In these cases the warning was by a vessel blockading Charleston and off that port before there was any actual blockading force off Savannah, and was indorsed thus: Boarded, informed of the blockade, and warned off the coast of all the Southern States by the United States steamship Niagara, May 12, 1861. EDWARD C. POTTER, Lieutenant United States Navy. This warning was not, and is not, disavowed. It must, therefore, have the same effect as if the officer giving it had been expressly instructed by the highest authority to give it in that form. It must be regarded as the act of the United States, and was notice to the vessel that all the Southern ports embraced within the proclamation were then actually blockaded, and that any subsequent attempt of the vessel warned to enter any of such ports would result in capture. A vessel bound for Savannah, thus warned, it is true, might have disregarded the warning, and could lawfully have proceeded to Savannah because there was not, in fact, any force blockading that port. If captured she would, unquestionably, have been discharged with damages by the prize court. But must the neutral merchantman run the hazard of attempting to enter Savannah? Had she found there an actual blockade and been captured, her previous warning would have been good, and her condemnation as good prize would have been certain. There is in the facts every element of a strong obligation upon the United States, and in favor of a vessel which, on the faith of the warning given, fully re spected it, and by so doing suffered loss, to make good that loss. The neutral vessel, ignorant as to the facts, had a right to act upon the warning; and I am compelled to hold that, in doing so, she acted with all prudence and propriety, and that, judging, as her captors must at the time, any other course would have been rashness and folly. A regard for the interests of his owners, as well as respect for the United States, required that the master should abandon any purpose to enter Savan nah. These observations apply also to Nos. 216 and 467. Alexander, R. S. C. A., executors of, vs. United States, No. 45. 15 Blanche, claim for destruction of cargo of British steamship.. 164 .11-14, 50 21-30 154 164 69 45 68 161 63 51 Carlisle, J. M., appointed counsel of Her Britannic Majesty. Carmalt, J. W., vs. United States, No. 89... Cauty, G. F., vs. United States, No. 443. dissenting opinion of Commissioner Frazer in. Claims of American citizens against Great Britain, schedule of.... index to same amount and disposition of.. detailed report of.. British subjects against United States, schedule of. index to same amount and disposition of. classification of. detailed report of.. Cleary, W., vs. United States, No. 220........ Clough, L. B., administrator, &c., vs. Great Britain, No. 14.. Collie, Alexander, vs. United States, No. 376. Collie, George, vs. United States, No. 458.. Confederate debt, claim of liability for.... Corti, Count Louis, named commissioner by both governments conjointly. requested to preside.......... Cotton, claims for destruction of, in insurrectionary States. .17, 18, 52 163 6 52 67 85 141 250 .216, 217 227 8 8,9 21-41 180-215 .218, 227 8 9 ..41-173 .45, 162 21 52 52 50 8-11 6,7 154-159 6 7 52-55 |