Lapas attēli

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 have 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.1 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, he was finally acquitted.2

Cases in which Great Britain been held responsi ble.

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 become known by experience, that this tribunal, which has not shown a disposition to take too indulgent a view of the fulfillment 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 Award of a sum in 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 admitted that these claims have never been audited, or even been bona fide examined by the Government 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 mer chandise 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 advanced in

'British Appendix, vol. v, p. 23.
2 Ibid., p. 187.

Amount of claims.

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 all 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 Shenandoah, 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 $19,146,444, 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.

Claims for cost of

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 pursuit and capture. 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 claim for losses sustained by individual citizens.

Question of dam


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 confined to loss actually sustained by destruction of ships, cargoes, or personal effects. Where damage to property arises, not directly from 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 do by the treaty, it must still, in fixing 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 $19,146,444; 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 pros

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$4, 009, 301

(C.) The double claims, amounting to

(D.) The new claims, presented for the first time on 19th August, amounting to

1,007, 153 1,682, 243

2, 150, 000

8,848, 697

(A.) There can be little doubt that the amount claimed for the pros pective catch of the whalers, which is, in fact, about double Claims for pros 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:

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Many other similar instances of extraordinary and arbitrary increase might be cited, but the above will suffice 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 extortionate character. But, independently of the undeniably exaggerated amount of the claims, a demand for gross prospective 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 from the time of the destruction of the vessel.1

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 exaggera tion, is $1,780,691. A claim of $659,021 is advanced for secured earnings. To award a further sum of $400,000, 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.

(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, Claims for but the same fact follows beyond a doubt from the follow- freighte ing consideration:


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 333 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. It is 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 33 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,

Double claims.

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.

New claims.

(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-aud, first, the

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