Page images
PDF
EPUB

sels of the navy within signal distance of the vessel or vessels making the capture, under such circumstances and in such condition as to be able to render effective aid, if required," 1 are allowed to share in the prize, lends some aid in the solution of this question. It needs hardly to be added that the attack must have been made by a Confederate cruiser, and the loss or damage must have directly resulted from such attack.

ALTHOUGH THE LOSS OR DAMAGE OCCURRED WITHIN FOUR MILES OF THE SHORE.. This clause is doubtless intended to meet the case of certain captures which have been thought not to come within the meaning of the general language that precedes it. A vessel may have been attacked by a cruiser on the high seas, and in her endeavor to escape may have run on shore, or been driven within the range of a hostile battery on the shore which opened its guns upon her and destroyed her. But it is not profitable to speculate upon supposed cases; it concerns us here only to regard the general significance of the various provisions Congress has seen fit to introduce into this act. Without enlarging, therefore, upon the probable design of this clause, it may be well to bear in mind that its language does not seek to vary the character of the loss, for which claim may be made. That loss is still required to be a loss directly resulting from damage done on the high seas by a Confederate cruiser; and all that this provision does is to say that, if the loss shall have occurred within four miles of the shore, this circumstance alone shall not exclude a claimant from the benefits of the act.

As we have already had occasion to see, the waters of the ocean not enclosed between headlands are the “high seas,” notwithstanding they may be situated within the limits of a marine league from the shore. Consequently, the mere fact that a loss occurred within four miles of the shore does not remove it from the operation of the preceding terms of the act. Perhaps it may be contended that the expression “within four miles of the shore” is designed to extend to claimants whose property was attacked on the high seas, and as a result thereof actually destroyed in landlocked waters, within four miles of the shore, the same right to indemnity as if the loss had occurred upon the high seas. At all events, it may be said that to arrive at a true interpretation of this provision requires much careful study and reflection.

1 Rev. Stat. sect. 4632.

101

CLAIMS PROVED.

ASSIGNMENTS.

EXCLUDING CLAIMS WHICH HAVE BEEN PROVED PURSUANT TO SECTION ELEVEN OF SAID CHAPTER FOUR HUNDRED AND FIFTY-NINE. - That “claims proved” means “ claims for which judgment has been entered,” is apparent from an inspection of the language of section 7 of this act, which provides that judgments of the present court shall be paid by the Secretary of the Treasury out of the money paid under the treaty and “not appropriated to claims proved under the provisions of said chapter four hundred and fiftynine, or any act extending the time for the filing of claims thereunder.” It is a fair inference, therefore, to be drawn from the use of these words designating what claims are to be excluded, that, as already stated, claims over which the former court had jurisdiction, but which were not filed in court, or, if filed, were not disposed of upon the merits, are admissible under the present act.

Another position may safely be assumed, and that is, that proof once filed of record in a claim in the former court may, if relevant, be used in cases to be brought in this court. The twelfth rule of the former court sanctioned the use of testimony at the trial of a case which had been taken and filed in another case. For the convenience of counsel in the preparation of their cases in the new court, references to several subjects of interest, selected from cases on record, are given below in a note. It is to be premised

1 Allegiance.

- See brief of W. L. Putnam, in the “ Lafayette," on the question of allegiance, protection, and domicile. Soule v. United States, No. 615. Assignments. — For an interesting case of rival claimants, consult the briefs upon the

point of the legal effect of an alleged assignment of a part interest in the “Benjamin Tucker." Nicholson, Adm'r v. United States, No. 759; Tucker v. United States, No. 829. As to remaining partner taking an assignment of all interests, see Dockendorf v. United States, No. 393; also Hevner's Petition in that case.

See also Hevner v. Dockendorf (1876), in Supreme Court of District of Columbia. Equity, No. 5038. The subject of a verbal voluntary assignment came before Judge Fox in the District Court of the United States for the District of Maine, in 1875. The complainant claimed in a bill in equity the money resulting from a judgment in the Court of Commissioners of Alabama Claims. The defendant's wife set up a verbal voluntary assignment to her of this claim, in 1863. The court did not find sufficient circumstances to sustain the allegation of an assignment, and gave judgment for complain. ant. As to the assignment being that of a claim against the United States, the language of the opinion is as follows : “The objection was taken to this transfer, that it fell within the provisions of chapter eighty-one of acts of 1853 (10 Stat. at Large, 170), by which transfers of claims against the United States are made absolutely null and void, unless made and executed in the

that no digest or index of contents to the cases decided by the court has ever been published. By order of the court, however, the clerk prepared in 1877 a printed “Index to Claimants,” giving

presence of two witnesses after the allowance of the claim, &c. It is a suffi. cient answer to this objection, that at the time of the alleged transfer there was no claim against the United States to be assigned, and the case here is not within that act. And it has been also decided by the Court of Claims (8 Ct. Cl. 253) Lawrence and Crowell's case, that the purpose of the act must be restricted to matters before the treasury, and not to matters coming within the jurisdiction of other courts." MSS. Opinion. Williamson v. Colcord et ux. (Dec. 7, 1875). T. B. Reed for complainants ; Clarence Hale for respondents.

(Mr. Hale has kindly furnished this note.) Assignee in Bankruptcy. -— For a case where an assignee in bankruptcy, under the act the names of claimants, the number of the claim, character of the loss, the amount and date of the judgment, the date from which interest is calculated, and the name of the vessel by the

of March 2, 1867, recovered judgment notwithstanding the bankrupts themselves filed their claim (which was dismissed), see Hyde v. United States, No. 324. The “ Anna F. Schmidt.” Cf. Treadwell v. United States, No. 949.

Money paid upon a judgment of this court to a claimant, who after the loss but before the making of the Treaty of Washington went into bankruptcy under the bankrupt act of 1867, can be recovered from the claimant by the assignee in bankruptcy in an action for money had and received. Leonard v. Nye, 125 Mass. 455. It is clear that the interest of the bankrupt in the property destroyed by the insurgent cruiser, and his claim against any indi. vidual or government for compensation for such destruction, were not included in the choses in action, consisting of certain bills, notes, and accounts, nominally of the value of about one thousand dollars, but in reality nearly worthless, which the assignee has sold under an order of the District Court of the

United States. Per Gray, C. J. See Jones v. Dexter, 125 Mass. 469. Bonded Vessels. - Claim dismissed where owners of a captured and bonded ship

alleged that by reason of embarrassments they were obliged to lose £1,000 on the sale of the ship when she reached London. Emmons v. United States,

No. 715. The “Morning Star.” Brokers' Commissions. — A shipbroker was to receive a commission of five per cent

for selling a cargo of guano on the “Avon,” bound to Queenstown. He sold the cargo “to arrive,” under the agreement that the ship should proceed to Leith and there deliver the cargo. The commissions amounted to £468. The court dismissed the claim. Penhallow v. United States, No. 1126. Cf. Glid. den v. United States, No. 1127, where a claim for loss of commissions of two and a half per cent, that were to be paid upon the freight of the same ship,

was dismissed. Consignees. — H. and S., commission merchants in Boston, for many years acted as

factors and consignees of V. R. & Co., Spanish subjects, merchants and planters in Cuba. The account between the firms was made up at the end of the year. During the rebellion large amounts were due H. & S.; and Dec. 31, 1862, twenty days before the capture of the “Estelle," the indebtedness amounted to $138,373.34. On the 12th day of January, 1863, V. R. & Co. shipped on board the “Estelle," from Santa Cruz to Boston, an invoice, chiefly of sugar and molasses, of the cost-value in gold of $11,270.55, and at of two hundred and seventeen shippers, is printed in full in Taylor v. United

The "

the same time forwarded to H. & S. an invoice and bill of lading, making the goods deliverable to them. This shipment was made in the general course of credit and payment spoken of. The goods were shipped as the property of V. R. & Co, and on their account. On the 19th of January, 1863, the “ Estelle,” with her cargo, was captured and burned by the “ Florida.” Held (Wells, P. J., dissenting), that H. & S. were entitled to judgment for the amount of the invoice and bill of lading. Homer v. United States, No. 840,

Rep. 23. Exculpated Cruisers. — The “Texana.” This capture was made by the “Boston,"

but alleged as by the “Florida " in the petition. Lauer v. United States, No. 1919.

The “Albion Lincoln," destroyed by the " Chickamauga.” Mattocks v. United States, No. 525.

The “Constitution,” destroyed by the “Georgia." Boon v. United States, No. 1514.

T'he “John Watt,” destroyed by the “ Georgia.” Green v. United States, No. 1695.

Protector," alleged to have been destroyed by the “Gordon " about Aug. 23, 1861. Qumore v. United States, No. 1704.

The “John Welsh,” captured by the “Jeff Davis.” Ackland v. United States, No. 1508 ; Slusman v. United States, No. 1960.

The “John Carver,” captured by the “ Jeff Davis.” Ward v. United States, No. 1679; Darragh v. United States, No. 1693.

The “P. C. Alexander,” captured by the “Olustee.” Shields v. United States, No. 1706.

The “ Adriatic," destroyed by the “Tallahassee.” Smith v. United States,

No. 359 ; Phillips v. United States, No. 502. Freights. An example of the computation of expenses to be deducted from gross

freight, in order to ascertain the net freight, is to be found in the case of the "Golden Eagle," Exhibit F. Barling v. United States, No. 363. See also Cooper v. United States, No. 110, Exhibit 4. The “John A. Parks." This exhibit is reprinted in Baker v. United States, No. 447, Exhibit D 1.

The scale of provisions required by the “ Passengers Act, 1855,” for emi. grants to the United States of America, each adult, the voyage eighty days, is printed in full at page 60 as an Exhibit, in Lynes v. United States, No.

1061. The “ Manchester." Freight List. The freight list of the “ Commonwealth,” which includes the names

States, No. 130. Howaiian Flag. - The “Harvest," a whaler, was destroyed by the “Shenandoah"

about March, 1865. It appearing to the court that the barque was sailing under Hawaiian colors, the petitions of sailors for indemnity for losses were dismissed. Eldridge v. United States, No. 1254. No claim was filed by the

owners.

destruction of which the loss was sustained. The work is well done. Each claim is readily found, indexed under the name of the claimant, with convenient cross-references.

war,

Husband and Wife. — As to whether husband can testify where claim is made by his

wife as feme sole, see Kaiser v. United States, No. 1650. “The Electric

Spark,” Testimony, p. 13; and brief of counsel, p. 5. Insurance Companies. - War premiums. In No. 257, Merchants' Mutual Marine

Insurance Company v. United States, will be found copies in full of policies of insurance against war risks. See also Haskins v. United States, No. 208,

for copies of similar policies. Minor. — In No. 1626, Wing v. United States, the complainant filed of record a release

under seal, executed before a notary, from his father, the complainant having been a minor at the time of the loss. The claim was by a sailor for personal effects and wages. The same was done in Wallace v. United States, No.

1502. Miscellaneous.

- For a map showing the approximate route of the “ Alabama," with location of her captures, see Sixth Annual Report of the Chamber of Cominerce of the State of New York, 1864, page 180. ... See 7 American Law Review 193, and 8 Id. 13, for articles upon the subject of the Geneva Award and the legislation of Congress. . . . A table of gold quotations, from the date of the suspension of specie payments till after the close of the will. be found in Hunt's Merchant's Magazine, 1865, though inaccuracies in it are to be discovered. A table published in New York, in a little volume, was in

constant use by the court. Money. A claimant, the second mate of the “Oneida,” from Shanghai for New

York with tea, included in his petition $5,800 in gold. His entire claim was $11,320 (of which $8,816 represented the gold, in currency).

The complainant appears to have been the only witness to prove his having this large amount of gold on board, though there was testimony tending to show that he was an industrious and saving man. The court awarded $6,000. Jerome

v. United States, No. 1786. Outfits. A complete list of a whaler's outfit in detail, with prices annexed, covering

seven and a half pages of closely printed testimony, will be found in the

claim of the owners of the “ Brunswick.” Wing v. United States, No. 1153. Personal Effects. — For a complete list of personal effects claimed to have been lost

by a shipmaster, see petition in Howes v. United States, No. 643. The Avon.” This ship was of 950 tons burden, bound from Howland's Island to Queenstown with a cargo of guano. Captain Howes had his wife and two children on board, and the list includes their effects. The list includes charts, nautical books, private stores, &., at an itemized valuation. See also Crary v. United States, No. 1006. The “B. F. Hoxie.” Testimony, pp. 6, 7; Lucas v. United States, No. 148. The “Redgauntlet.”

Charts. — Exhibit A attached to petition in Snow v. United States, No. 597. The Highlander.” For expert testimony upon the subject of the value of nautical instruments, charts, books, &c., see Dillingham v. United Statcs, No. 391. «« The Mondamin."

Claim for thirty-five volumes of MSS. “ Journals of My Voyage,” which

1

79

« PreviousContinue »