One

CLAIMS FOR THE PAYMENT OF PREMIUMS FOR WAR RISKS. may not mistake the sense of these words, although the form of ex

their owner valued at $300, see Young v. United States, No. 474. The "Favorite."

Recapture. Hides and wool belonging to complainants were captured on the "Conrad" by the " Alabama," and a portion put on board the "Saxon." Subsequently the United States steamer "Vanderbilt " captured the "Saxon," and complainants received at New York (where the "Saxon" was condemned in prize) nearly all their property originally shipped on the "Conrad, at an expense for salvage or prize-money. Ropes v. United States, No. 703. Rehearing.

When the court does not, on its own motion, order a rehearing, it will be proper for counsel to submit, without argument, a brief written or printed petition or suggestion of the point or points thought important. If, upon such petition or suggestion, any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. Public Schools v. Walker, 9 Wall. 603. This court adopts the rule here laid down. Gannett v. United States, No. 184, Rep. 127.

For brief of petitioner on rehearing asking the court to add to a judgment already rendered of $20,168.45 the sum of $9,366.07, adducing the reasons therefor, see Boyd v. United States, No. 325. The " Redgauntlet." The court subsequently rendered a new judgment in the sum of $25,959.14. Ship, Value of. Consult testimony in Atkins v. United States, No. 217, the "Brilliant," particularly that of Christian F. French, a ship broker, of New York, and that of Richard Poillon, ship-builder. Also, Mr. Poillon's testimony in Cushing v. United States, No. 288, the "Sonora." George D. Lunt's testimony, and that of John F. H. King, the publisher of the "Ameri can Lloyds," also in the "Sonora." Testimony of complainant, a ship-builder, in Currier v. United States, No. 709, the "Charles Hill." See also testimony of Charles F. Elwell, of New York, who bought and sold vessels in 1863. Barling v. United States, No. 663, the "Golden Eagle." Bulkley v. United States, No. 309; the "Goodspeed."

J

Wages.

John K. Hammitt, a ship-builder, eighty years of age, gives a minute description of how the barque "Conrad" was built. Newhall v. United States, No. 897. See Cooper v. United States, No. 110, for an equally thorough description of the construction of the ship "John A. Parks."

Mr. J. W. Butterfield's brief in King v. United States, No. 405, the "Palmetto," sets out the value of the vessel, according to five different methods of computation.

The testimony of ship-builders and experts as given in several cases is well summarized by Mr. E. H. Abbott, counsel for owners of the "Commonwealth." Colby v. United States, Nos. 1186-1192.

A brief prepared by the assistant counsel in behalf of the United States, showing the price of whaling vessels in 1864-65, as illustrated by actual sales, at New Bedford and elsewhere, will be found on file in Tucker v. United States, No. 579, the "Isaac Howland."

- For testimony upon the subject of wages of officers and men on board a ship of 1,387 tons, in general freighting business, see Crary v. United States, No. 1006, Testimony, p. 9; also Exhibit C., containing an account, kept by the master, of wages, with dates of payment, &c.

pression is susceptible of improvement.

"Enhanced payments of insurance" and "war premiums" are terms of settled meaning. This clause calls for the briefest possible comment.

The requirement that payment shall have been made after the sailing of a Confederate cruiser shows (if, indeed, there were any need of showing it) that the war risks referred to are the risks of capture by Confederate cruisers. Nor is it necessary to say that the statute intends that the payment shall have been an actual, and not a merely nominal, transaction. If a merchant chose to be his own insurer, it of is no consequence that he kept an account with each ship, or with each shipment of goods, and charged up an item of premiums paid. So long as he paid out nothing, he lost nothing. Of course, the term "agent" does not include the merchant's own agent, but refers only to an agent of the insurer. It does not appear that the introduction of this word affects in any way the application of the well-settled principles of the law of agency.

Few questions difficult of solution are likely to occupy the court in the disposition of this branch of their business. Perhaps it may become necessary to examine the law of evidence governing the admissibility of the proof offered; but the trial promises to be in most cases restricted to the single question of fact, Did the complainant actually and bona fide pay out certain sums of money as premiums of insurance against war risks?

Transactions of this nature are best proved by producing original policies and receipts. The schedules prepared and sworn to by the claimant, not long after the loss, and filed in the Department of State, are valuable as contemporaneous records. The books of insurance companies, or sworn copies thereof, with the suppletory oath of the officer who made the entries, if living, will go far towards establishing the genuineness of the claim and its correct computation. Finally, proof of the reputation and business standing of the complainant, together with the extent and character of his dealings, would be of essential service. Where papers have been lost, the admissibility of oral testimony as secondary evidence falls within the ordinary rules of law obtaining in such cases.

Claimants who recovered judgment in the former court were allowed, as an item of loss, the premiums they had paid against both marine and war risks. To the extent of what was awarded

110

SAILING OF FIRST CONFEDERATE CRUISER.

for payments of the latter kind, no claim of course can now be made.

It is interesting to note that the item of "increased insurance" which our government submitted to the Tribunal of Arbitration at Geneva, in the revised list of claims, is placed at $6,146,219.71; also that many claims for war premiums were filed in the former court, all of which were dismissed, when reached, for want of jurisdiction.

AFTER THE SAILING OF ANY CONFEDERATE CRUISER. It is not likely that judgment will be asked for war premiums claimed to have been paid prior to June 2, 1861. That is the date when the "Savannah," the first commissioned privateer in the Confederate service, escaped from Charleston. This was on the afternoon of Sunday; and the next day she captured the brig "Joseph," from Cardenas, Cuba, for Philadelphia with a cargo of sugar. She sent her prize into Georgetown, South Carolina. The "Savannah" was of fifty-four tons burden only, carried an eighteen-pound gun pivoted amidships, and twenty persons-officers and crew. She was herself captured June 3, 1861, by the United States brig "Perry," and sent to New York. The trial of her officers and crew, it will be remembered, on an indictment for piracy, took place in the following October, in the United States Circuit Court for the Southern District of New York. It resulted in a disagreement of the jury.1

Should it, however, become necessary to inquire whether a date earlier than June 2, 1861, can be assigned to the sailing of a Confederate cruiser, a thorough research into historical records and documents will have to be instituted. Investigation into the true history of the alleged captures at New Orleans may throw some light upon the subject. The "Calhoun" and other vessels are said to have made captures in May, 1861.2 The question recurs, were these vessels Confederate cruisers; and, at that period, had they "sailed" within the meaning of the act?

1 "Trial of the Officers and Crew of the Privateer ‘Savannah' on the Charge of Piracy." New York, 1862. The commission, signed by President Jefferson Davis bore date "Montgomery, May 8, 1861." The officers and crew of the "Savannah " were subsequently removed to Fort Lafayette and treated as political prisoners. 2 Ante, p. 102.

ONLY ACTUAL LOSS ALLOWED.

SECTION 6. That in examining claims in either class it shall be the duty of the court to deduct any sum received by any claimant as an indemnity, dividend, set-off, or otherwise, so that the actual loss of such claimant only shall be allowed.

ACTUAL LOSS. — This is practically a re-enactment of the first paragraph of section twelve of the act of 1874, which, as will be recalled, gives a claimant the difference between the loss or damage actually suffered and any compensation or indemnity therefor which he may have received from any insurance company, insurer, or otherwise.

The phrase "actual loss or damage," it will be seen, occurs in section thirteen of the act of 1874, which section is as follows: :

That, in estimating the compensation to claimants, interest shall be allowed, at the rate of four per centum per annum upon the amount of actual loss or damage which shall be ascertained in each case to have been sustained, from such date as the court shall, in each case, decide that the loss was sustained by the claimant : Provided, however, That the amount of such interest shall not be included in or added to the amount for which judgment may be rendered on said claim; but in each case a report of the amount of such interest, certified under the seal of the court, shall accompany the report of the judgment on the claim to the Secretary of State.

At the date of the passage of the act of 1874 no one could predict how large an amount of money would be required to pay the judgments which the court might award. Congress intended that interest should be paid on the amount of the loss, but thought it prudent not to establish a higher rate than four per cent. That there existed a fear lest the fund might not prove adequate to meet these judgments with interest at four per cent, is manifest from the fourteenth section of the act, where the contingency is expressly guarded against, by providing, if need be, for paying the judgments with interest to parties in ratable proportions. Had it been foreseen just what figures these judgments would reach, and that

112

SECRETARY OF TREASURY TO PAY JUDGMENTS.

as a matter of fact the fund was amply sufficient to pay six per cent interest, there is ground for believing that Congress would in all probability have fixed upon that rate instead of four per cent; for interest at the latter rate is unusual in the legislation of this country, whether state or national. Such private acts of Congress as allow interest have uniformly fixed the rate at six per cent.1

3

The United States claimed before the tribunal, seven per cent interest, to be calculated from July 1, 1863, as an average day.2 We know that the tribunal decided to admit interest as an element in the calculation for the award of a sum in gross. We also know for Sir Alexander Cockburn, in his dissenting opinion, discloses the fact that the tribunal allowed interest at the rate of six per cent in gold.*

As we have already seen, the first docket of the court contained 1,383 cases, in which the gross amount claimed, exclusive of interest, was $12,673,451.44.5 In the additional time given for filing petitions, 685 claims were added, in the sum, excluding interest, of $1,825,865.55. The court therefore passed upon 2,068 cases, representing claims amounting to about $14,500,000, not including interest. The grand total of their judgments is $9,316,120.25 ; which, roughly estimated, one third was interest, or $3,105,373.41. Had the act allowed six per cent, the whole sum awarded, principal and interest, would have amounted, we may say, to $10,868,806.95.6

of

JUDGMENTS TO BE PAID BY THE SECRETARY OF THE TREASURY.

SECTION 7. That the judgments rendered by said court under this act shall be paid by the Secretary of the Treasury out of the sum of money paid to the United

1 See acts cited in argument of counsel, United States v. McKee, 91 U. S. 455.

2 Case of the United States, 480. Papers relating to the Treaty of Washington, vol. i. p. 189.

4 "I see no reason," he remarks, "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 six per cent adopted by the Tribunal." Opinion of Sir Alexander Cockburn, Ibid. vol. iv. p. 543.

5 Ante, p. 20.

6 See Rep. 10.