The large and valuable ship "Winged Racer," of New York, sailed from Manilla on October 8, 1863, for New York, and on November 10, following, with her cargo, was destroyed by the “Alabama," near the coast of Sumatra, in the Java Sea. The value of the vessel was claimed at $60,000. Her cargo consisted of 5,810 bales of Manilla hemp, 9,607 bags of Manilla sugars, 100 bales Manilla hide-cuttings, 100 boxes camphor, &c. The complainants, her owners, claimed as the value of the cargo, the sum of $216,480.39, for which amount they alleged the goods could readily have been sold "to arrive" on November 10, 1863, the day of her "probable arrival." They also claimed to be allowed her net freight and indemnity for loss of stores, outfits, port dues, &c. Wm. Peet, for Hubbell and Gillilan.

A. W. Evarts and Joseph H. Choate, for Sherman.

Jno. A. J. Creswell, for the United States.

JEWELL, J. These claims were for the loss of the ship "Winged Racer," and for the cargo, and for the freight of the vessel, on a voyage partly performed from Manilla to New York.

The claimants first named were each owners of seven twentyfourths of the vessel and freight, and joint owners of the cargo which they had bought in Manilla and China.

The third claimant owned seven twenty-fourths of the vessel and freight.

The owners of the cargo showed that the cargo could have been sold in New York, at the time of the probable arrival of the vessel, for a large profit over the cost in Manilla and China. They also contended that the goods might, on the day of destruction, have been sold in New York to arrive, for a large profit.

Before the hearing in the above-named causes, it was arranged that, in connection with the argument upon the questions of law proposed to be presented by the counsel in the principal cases, counsel in various other cases pending before the court in which questions were raised as to the measure of damages in regard to ship, outfits, provisions, cargo, or freight, should be heard with briefs and arguments, so that, if possible, all questions of this class should be at the same time presented to the court.

In pursuance of this arrangement, briefs were filed by several gentlemen of the bar, and the questions have been presented to the court by briefs and oral arguments of exhaustive ability, and the

counsel of the United States has with equal ability and exhaustive research presented his views.

The court acknowledge their obligations to the various counsel for the claimants as well as to the counsel for the United States for the valuable assistance thus rendered.

For the authority of this court to award any sum either as loss or damage or as indemnity or compensation for loss or damage on ship, cargo, or freight, we must look to the law under which we act.

The act, section 11, directs us to examine all claims admissible under it, directly resulting from damage caused by the so-called insurgent cruisers, &c., and "to decide upon the amount and validity of such claims in conformity with the provisions hereinafter contained, and according to the principles of law and the merits of the several cases."

By this, we understand that each claim is to be decided upon according to the principles of law and the merits of the several cases, and such a sum awarded to each claimant as the principles of law and the merits of his case entitle him to receive, unless the allowance of such amount is specifically forbidden by some provision of the act "thereinafter contained."

What the provisions of law are upon or according to which we are to make up these claims we are not told in the act; we are to seek them in general principles acted on by the courts, or to be found in the decisions to which we look for the authoritative declaration of the law of the land.

We ought, as it seems to us, to look for these principles especially in the decisions of the Supreme Court of the United States, which are of paramount authority, certainly in cases to which the United States is in any sense a party. We may look for them in the decisions of the Circuit Courts of the United States, to the practice and procedure in which we are specially referred in the act. And we may also look to the decisions of the courts of the several States, not as conclusive upon us, but as worthy of examination by reason of the weight of reasoning and broad application of principles exhibited by those very high tribunals. And as these questions, the fund to which they have reference, and this court itself, each and all, are but the fruit of a great settlement between the two leading commercial and maritime powers of the world, we may and ought to draw from the law of

nations, and the decisions of the courts of Great Britain, and especially from those tribunals before which questions of the law of the seas, of the rights and duties of neutral nations, are brought and tried, such rules as will best accord with that enlightened sense of justice by which this nation will be willing hereafter to be measured, and to which she will hereafter, without hesitation, appeal.

It was not improper for the counsel of the United States, in his very able argument, to call to our attention, and the attention of the claimants here, that we must bear in mind that, in making a standard according to which damages are to be awarded to the claimants before us, we at the same time supply a standard according to which hereafter, in all time perhaps, damages will be claimed and enforced against our own Government.

This consideration itself increases in our view the gravity and importance of the questions to be decided; it imposes upon us the greater obligation to consider with the strictest care the matters under deliberation.

That Congress had this consideration in view in framing the act is evident from the act itself; and section twelve comprises the "provisions hereinafter contained," which limit and restrain us in applying what otherwise we might apply to the fullest extent, namely, the allowance of damages in each case according to the principles of law.

The primary purpose of the act we conceive to be to discover what the loss or damage directly suffered by each claimant is according to the principles of law, and to award him that sum, with the limited interest provided in the act; and that amount we are to determine and award, unless we are prevented from allowing the whole of said sum by the restraining clauses before referred to.

There are some preliminary considerations which we will dispose of before proceeding to an examination of the chief questions at issue.

It is urged upon us most earnestly by all the counsel for claimants that the allowance for damage should be of the most liberal nature, inasmuch as these claims arose out of the acts of a wrongdoer; that the capture and destruction of these vessels was attended by wanton outrage and violence, presenting, as is urged, the cases in which courts have uniformly permitted the largest liberality in

the assessment of damage. We do not think these considerations apply.

These captures were made in war; there was no violence greater than is allowed by the laws of war. To be sure, usually, captured ships are not destroyed; they are commonly taken as prize before the courts for condemnation; but as the Confederacy had no prizecourts, they exercised an undoubted, although extreme, right, and burned their prizes. Every merchant who made an adventure upon the seas was fully aware of the dangers to which his vessel or cargo was exposed. He "met but what he looked for should oppose."

Besides, this fund is the result of a liability of Great Britain for an act of negligence. This is not a suit against the actual wrongdoer. To be sure, by the law of nations we held England liable for these losses, and by the treaty she agreed to be treated as liable, but from first to last she protested that her liability was that which arose from oversight and omission, from a want of vigilance, an inadequacy of exertion in particular cases, a mistake of her duties, and not a wanton or wilful act. And, as we understand it, our own government finally acceded to that view.

In our own highest court, where the owners of a privateer were held liable for the unlawful act of the master and crew, a claim for vindictive damages was rejected, though Mr. Justice Story, in giving the opinion of the court, says, " upon the facts disclosed, this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse."1

We are therefore of opinion that this consideration cannot enter into our judgment in estimating the amount of damage in these

cases.

The various claims for damage arising under this act are:

First. For the vessel.

Second. For those outfits or supplies which are put on board prior to the commencement of the voyage, and needful or pertaining to the navigation. As to those, it is in every case a question whether they are or not included in the valuation of the vessel itself.

Third. For those supplies which are in the nature of provisions to be consumed on the voyage.

Embraced in these second and third classes are the outfits and 1 The Amiable Nancy, 3 Wheat. 558.

supplies put on board vessels fitted for whaling or similar voyages, differing in details from the outfits and supplies of ordinary vėssels, but presenting no differences of principle.

Fourth. For the loss of the freight, either as due for the carriage of goods in a general cargo or the amount to become due or agreed to be paid under a contract of affreightment or charter-party, either for a voyage actually entered upon, the goods being already on board, or for a voyage agreed to be made from a port not yet reached, but for which the vessel has sailed, or on a voyage agreed to be made, but for the performance of which no steps have been taken or progress made, except to bind the ship and owners, if the ship or vessel survives accidents, so as to be able so to do.

All these claims have reference to the owners of the vessel, and can be made by them only, or by their representatives.

Fifth. For the loss of goods on board, whether specifically as cargo entered on the manifest and paying freight, or as the property and personal effects of officers or men or of passengers. As to the ship:

There has been no difference of opinion, in the discussions before us, as to the measure of damage to the ship or vessel. The decisions of the courts all agree in giving the owner of the vessel its value at the time of its loss or destruction. In the law of insurance, its value at the commencement of the risk is taken to be its value through the voyage, although in fact the ship is continually deteriorating; but this slight deterioration is compensated for as an element of the freight.

There is nothing in the Act limiting the right to give the value of the ship if destroyed.1

As to outfits:

As to that class of outfits which pertain to the navigation, such as spare spars, sails, extra canvas, and the like, and materials for the temporary repair of the ship, it has been contended by the counsel for the United States that they properly belong to and are included in the valuation of the ship itself. There is no difference of opinion that when the value of the vessel is clearly proved, exclusive of this class of outfits, and the value of the outfits as a separate item of value is clearly shown, their value, if destroyed, is to be given.

1 The Baltimore, 8 Wall. 386, and cases in note; Lowndes on Collisions, 141 et seq.