In considering this case, as it is connected with section 11 of the law creating this court and defining its duties, we have not been unmindful of that provision of section 12 of the same law which prohibits the allowance of any claim based on "prospective profits," which prospective profits might be involved in the statement of claimant in her petition that the "season's catch," covering a period of about one year, broken up by the act of the rebel cruiser Alabama, was well worth, and would have realized the owners of said ship, the sum of $50,000. In enacting this provision of the law, of course Congress had in view that part of the decision and award of the tribunal at Geneva which was cited by counsel, and reads as follows: And whereas prospective earnings cannot properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies, the tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head. * * Now, were there no uncertain contingencies connected with the "prospective" or expected catch of the whale-ship Splendid, "equipped to pursue the whale-fishing in the Atlantic Ocean for a voyage of thirty months"? The dangers of the sea are topics of talk with a host of our legal brethren from the opening to the end of the year, and every year since our Government was founded. There is no end to the number of volumes on the subject of marine law, embodying elementary principles and adjudicated cases, abroad and in this country, a large proportion of which exhibit the uncertain contingencies connected with ocean-navigation. Millions of capital are invested to guard against marine risks, and in every policy of insurance issued some of the perils of the sea are enumerated. God's providence and His wisdom can only protect against the dangers of the deep. In view of all this, in view of the actual realities of life, we are led to the conclusion that there were many "uncertain contingencies" connected with the "season's catch" of the whale-ship Splendid, the season embracing a term, as stated in the petition, of not less than one year, and with the vessel fitted to pursue the whale-fishing for thirty months. After full consideration of the arguments and authorities cited by counsel, the court sustains the demurrer filed in this case, and enters judgment for the respondents. The act creating the Court of Commissioners of Alabama Claims limits its jurisdiction to claims for losses directly resulting from damage caused by certain so-called insurgent cruisers. The cost of an adjustment of general average on a ransom bond taken from the master of a vessel captured (but not destroyed) by the Alabama is not a loss directly resulting from damage caused by one of the said cruisers. The case is stated in the opinion of the court. PORTER, J., delivered the opinion of the court: In December, 1862, the complainant shipped from New York on the steamship Ariel certain merchandise destined to San Francisco. When the Ariel had prosecuted her voyage about as far south as Cuba she was pursued, fired upon, and stopped by the rebel cruiser Alabama. The commander of the Alabama evinced a strong desire to destroy the steamship, as he had done, and continued to do, so many other valuable vessels. But the Ariel had on board six hundred and sixty-seven passengers, including one hundred and forty United States marines and their officers, too many to be taken on board of the Alabama or to be sent adrift in small boats. Embarrassed by this circumstance he exacted from the master of the Ariel a ransom-bond, which purported to be executed by the master for himself, the owners of the ship, and of its cargo, and stipulated well and truly to pay the sum of $261,000 "unto the president of the Confederate States of America, his successor or successors in office, within thirty days after the conclusion of the present war between the said Confederate States and the United States." On the arrival of the goods at San Francisco the owners of the steamship line, regarding the case as one of general average, placed it in the charge of professional adjusters. The proceedings of the adjusters have not been very substantially proved in this court; but we assume the professional competency of the persons so employed, and the technical accuracy of their work. They apportioned the respective amounts which the vessel, the freight, and the cargo were liable to contribute if payment of the bond were finally exacted; and they also apportioned the expenses of the adjustment among these different interests. They fixed the sum which would be payable by Mr. Hyneman as his portion of the bond at $4,880.53, and his portion of the expenses of the adjustment at $78.73. He paid the last-mentioned sum in gold, and he claims to recover it from the money awarded to the United States at Geneva. Can we allow it? It is a case on which several cases are said to depend, and deserves the careful consideration which we have endeavored to give it. It may be admitted that where a ship is seized and detained by a superior force, a sum of money paid to ransom her constitutes a case of general average. (Emerigon on Insurance, 485; 1 Parsons on Maritime. Law, 299; Clarkson vs. Phoenix Ins. Co., 9 Johnson, 1; Girard vs. Ware, Peters's Circuit Court Reports, 142.) In the present case no money was paid, but a bond was required, and we think the claimant justly entitled to the inference that if the master had refused to give the bond the ship and her cargo would have been destroyed. It is clear, also, that by long-established usage, as recognized by the best writers, (2 Phillips on Insurance, 100,) the charges of the adjuster or despacheur are to be borne proportionately by the owners of the property saved by the payment of a ransom. The peculiarity of this case is that payment of the bond was never demanded, and, as the facts show, never could have been enforced. It must be regarded now as an instrument utterly void in law. Can the claimant recover from this fund the sum which he was compelled to pay toward the expenses of an adjustment consequent on the giving of such a bond? By the act of Congress of 23d June, 1874, our powers are thus limited: "It shall be the duty of said court to receive and examine all claims admissible under this act that may be presented to it directly resulting from damage caused by the so-called insurgent cruisers," &c. In the jurisprudence of most countries a distinction has been necessarily drawn between the proximate and remote causes of loss. In Livie vs. Janson, (12 East., 648,) Lord Ellenborough held that if a ship meet with seadamage which checks her rate of sailing, so that she is taken by an enemy from whom she would otherwise have escaped, the loss is to be ascribed to the capture and not to the sea-damage. So, where a vessel was compelled by sea-damage to put into a foreign port for repairs, and the climate of the country rendered necessary the sale of a part of the cargo, a loss thus arising is not a consequence of the perils of the sea. (Goold vs. Shaw, 1 Johnson's Cases, 293.) In Hillier vs. The Allegheny County Insurance Company, (3 Pa. State R., 470,) it was held that, where goods not touched by fire were removed under a reasonable apprehension that they would be consumed by a fire then raging in the immediate neighborhood, the injury sustained was not covered by a policy against the peril of fire. The books are full of such cases. They were well known to the eminent lawyers of each house of Congress who so long had this act in their charge. The losses cognizable in this court were therefore defined with severe precision. We are to consider and determine upon claims for losses arising not simply from the wrongful acts of the insurgent cruisers, nor merely growing out of the injuries really occasioned by such acts, but for losses directly resulting from damage caused by the said cruisers. An act of damage must be shown to have been committed, and the act must appear to be the direct, as distinguished from the remote cause of the loss. The loss from a probable or anticipated injury may have been greater in some cases than from a real act. The remote result of an act of damage may have been ruinous to the party suffering it. Upon the consideration of these cases we are expressly prevented from entering. In every case brought here two things must be shown to have concurred, namely, damage done by one or more of the insurgent cruisers, and a loss as its direct result. If either of these elements be wanting we are powerless to give a claimant any redress. Has this claimant suffered any loss which is the direct result of damage caused by the Alabama? She did no damage whatever to the Ariel, or to her cargo, and did not exact from her the payment of a dollar of money. The apprehension on the part of the owners of the Ariel that they might at some time be required to pay led them to demand the money from the claimant, and he, to save the trouble of a contest over it, paid the sum required. If he has lost by the transaction he has been unfortunate; but it is plain to us that his loss is not one directly resulting from damage caused by the Alabama, as these terms are employed in the act of Congress, whence our powers are derived. Judgment for the United States. IN RE THE SHIPS JAMES MAURY, GENERAL Pike, Milo, and the bark Nile. } Where a vessel, captured and bonded in the Arctic Ocean, is obliged to convey to a port of refuge the crews of other vessels captured and burned, a sum is to be awarded to the owners as compensation for property and expenses incurred. Also a sum in lieu of catch in the enjoyment of which the ship's company shall have part, which sum shall include compensation for provisions consumed for the enforced use of the vessel, the compulsory service of officers and crew, and shall embrace the consideration that the vessels were left thirty days' sail at least from. the point of departure, to which point they had a right to claim to be returned. A statement of the case will be found in the opinion of the court. for the complainants. Creswell & Hackett for the respondent. JEWELL, Judge, delivered the opinion of the court: These are all cases of whaling-vessels captured near the close of the month of June, 1865, in the Arctic Ocean, by the confederate cruiser Shenandoah. None of them were destroyed, nor does it appear that any property was taken from them by the cruiser, but that they were severally spared from the destruction which befell a large number of whalers at that time, and bonded by the cruiser, and ordered to take on board and carry to San Francisco or to Honolulu the officers and crews of the several vessels which had been burned. The James Maury was captured June 28, 1865, a prize crew put on board of her, the master and mate ordered on board the Shenandoah, where they were detained until the master had executed a bond to the Confederate States for the assumed value of his vessel, and until the cruiser had placed on board of her the crews of eleven of the burned ships. Then the master was returned to his vessel with a safe-conduct from the commander of the cruiser, saving him from capture by any confederate vessel on his passage to Honolulu, to which port he was directed to proceed and there land the men so placed on board. At the same time a large number of men were placed on board the bark Nile, which, being fitted out for only one season, had not sufficient provisions for the increased number of persons, and a portion of the provisions from the Maury was transferred to the Nile for use on her passage to Honolulu with the men so placed on board. The value of these provisions is shown to have been $1,205.90. The James Maury, with 150 men on board, was restored to her master, if that can be called restoration, June 30, 1865, and, according to the orders of the commander of the cruiser, the master made sail for Honolulu, where he arrived in safety on the 11th day of August, after a passage of 42 days, or in 44 days after his capture. At the time of the capture of the Maury she was actively engaged in the whale-fishery, and had already taken some whales, and had all her supplies and materials on board for that purpose. On receiving this large number of men, who were in such excess over his own crew, the master was obliged to make such provision for their shelter and comfort as he could, or as humanity or their demands required. At that season, in that climate, it was necessary to furnish them a sleeping-place between decks, and all the whaling apparatus and extra rigging, and other similar articles found in the way between decks were thrown overboard; the lumber found there used for the fitting up of berths for the men, the spare sails and duck cut up for bedding, and generally such use made of everything on board as the necessities of the men required. Much property was lost, destroyed, or appropriated to the use of the men, with or without the consent of the master of the Maury, whose consent to the use of any article found on board which might subserve the comfort of his enforced passengers would not, probably, have been asked. In fact, all on board had been prisoners, and whatever was spared, whether ship or stores, was spared for the common use of all so far as was needful to the safe arrival at Honolulu. Some question was made by the counsel for the Government whether the destruction of property on the passage was not consented to by the master of the Maury, and so its value could not be claimed here; but we must consider it is one of the necessary, in fact an inevitable, result of the condition of things. Indeed, nothing is more creditable to the character of the officers and men in all these vessels than the fact that there has not been shown in any case the least wanton destruction of property, or the least insubordination on the part of any man at any time. In every case the men placed on board were at least five times the number of the officers and crew of the ship on which they were placed, and at any time they could, if they pleased, have taken the ves sel under their control. The Maury arrived at Honolulu August 11, was immediately refitted, and in the very short period of seventeen days was again at sea in pursuit of her calling. But at this late date, August 28, she could not hope to reach the Arctic Ocean, from which she came, until so late a period that the season, which closed about October 1 or a little later, would be past. She therefore sailed for the winter cruising-ground. The facts in regard to the other vessels are substantially the same, except that they were ordered to San Francisco. The General Pike had 222 men placed on board of her, so that with her own crew she had for a time on board 252 men. Of these, urged by considerations of humanity alone, Captain Weeks, of the bark Richmond, took 52, and carried them to the Sandwich Islands, thereby incurring for himself and owners a loss from the abandonment of his season's employment for which this court has already expressed a regret that it could, under the circumstances, make no compensation. She arrived in San Francisco August 1, after a voyage of about 32 days. Here, all the crew, being advised by counsel that they could not be longer held, left the ship, as did all the officers, and she remained in San Francisco till her owners sent out a master to take charge of her and ship a new crew. But if the same dispatch had been used in this case as in the case of the Maury at Honolulu, or of the Milo, which went to San Francisco, the time of sailing would have been too late to proceed again to the Arctic Ocean. In this case, as in the case of the Maury, there was a considerable destruction of property by throwing it overboard and in fitting up bunks for the men. The Milo was captured June 22, and bondel, as in the case of the Maury, and 160 men of the crews of the whalers previously captured put on board of her, making, with her own officers and crew, 194 men on board. The master informed the captain of the cruiser that he had not sufficient provisions to make the voyage to San Francisco with so many men in safety, and he was directed to take, and did take, a quantity of provisions from a vessel just captured, and not yet burned. He sailed for San Francisco June 23, where he arrived July 20, in safety. The narrative of the facts of the capture of the Milo, given by the master, Capt. Jonathan C. Hawes, is as follows: 18th int. Please now describe the circumstances of your capture? Ans. About 11 o'clock on the 22d of June, 1865, I saw a steamer approaching; I was boiling at the time. Supposing her to be a Russian telegraph vessel, with later news from San Francisco, I set my colors, and awaited his approach, hoping to get further news in regard to the assassination of Mr. Lincoln, whose death I had heard of the night before. He hailed my ship and ordered me on board. I asked him what ship it was. He said, "Never mind what ship it is; come on board and bring your papers, and bear a hand about it." I went on board; was met at the gangway by an officer in uniform, who ordered me to the captain's cabin. I was then told by the captain that I was on board the confederate steamer Shenandoah, and that I and my vessel were prisoners. He put me under oath to state the value of the vessel. The value of the vessel and the oil on board was finally fixed at $46,000 in gold. He told me I must take 100 men that he had on board, and that if I would, and sign a bond, he would release my ship; otherwise he would burn her. I asked him what I should do with 100 men; he said he did not care what I did with the men, but would give an order and permit to take them to San Francisco. In order to save my vessel I then signed the bond, and he ordered me to get the 100 men out quick. I found that he had on board the officers and crews of the Euphrates, Abigail, and Wm. Thompson, all of New Bedford, which ships he had already captured and burned. I then went on board my ship and ordered my crew to go on board of him for the hundred men, and he proceeded to capture the Sophia Thornton, of New Bedford, which ship was about one-fourth mile off; after putting a prize-crew on board of her, he ordered me to lay alongside of the S. Ex. 21—————— 1 |