The Nuestra Senora de Regla
108 U.S. 92 (1883)

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U.S. Supreme Court

The Nuestra Senora de Regla, 108 U.S. 92 (1883)

The Nuestra Senora de Regla

Decided March 12, 1883

108 U.S. 92

Syllabus

The Nuestra Senora de Regla was seized in November, 1861, by the army. In December, 1861, the master chartered her to the Quartermaster's Department for two hundred dollars a day. She remained in the service of the Quartermaster till January 29, 1862, when she was delivered to the navy, by whom she was used as a transport till March 1, 1862. She was then sent to New York and libeled as prize. A decree of restitution was made June 20, 1863. Proceedings to fix the amount of demurrage were stayed to enable the matter to be adjusted diplomatically. In 1870, the Department of State informed the Spanish Minister that it would be more satisfactory to the United States to have the question settled by the court. A reference to a commissioner resulted in a decree for demurrage to the date of the decree for restoration, in all 263 days. On appeal, the decree was set aside as excessive and the case remanded. Under a new reference, the same demurrage was allowed, and decree therefor made.

Held that:

1. It having been settled by the former decree in 84 U. S. 17 Wall. 29 that the steamer was not lawful prize, and that the capture was without probable cause, these questions were no longer open. Supervisors v. Kennicott,94 U. S. 498, followed.

2. The capture being made by the army, the vessel was not subject to condemnation as prize.

3. The executive could, without legislative authority, submit to the determination of a judicial tribunal the question of the amount of damages for the capture.

4. A captor who does not institute judicial proceedings for the condemnation of his prize without unnecessary delay is subject to demurrage in case a decree of restitution is made after proceedings are begun.

5. The United States are liable to demurrage in the present case from the date when the surrender for adjudication might have been made until the date of the surrender at the rate fixed by the charter party.

The steamer Nuestra Senora de Regla was built in New York for the claimant, a railroad company in Cuba created by the laws of Spain. She was delivered to an agent of the claimant on the fifth of November, 1861, and sailed for Havana in command of a Spanish master. She was a side-wheel steamer of about three hundred tons burden, built to run on a ferry

Page 108 U. S. 93

between Havana and a terminus of the railroad company's railroad. On her way down the coast, she went into Port Royal, and while there the Quartermaster of the United States at that post offered to purchase her for the use of the government. The master declined to sell, as he had no authority. She was then, on the 29th of November, seized by order of General Thomas W. Sherman, in command of the United States forces. In communicating the fact of the seizure to the adjutant general of the army on the second of December, the general said:

"If this steamer I have seized is confiscated, she should be left here. She is just the thing we want, and admirably adapted for these waters and our purpose. She is new, and exactly such a boat as they have at the Jersey City ferry in New York. Will carry 1,000 men, and will draw not over six or seven feet."

No judicial proceedings were instituted for her condemnation, but at some time before December 16, the following charter party was entered into:

"Articles of agreement made this ___ day of December, 1861, between captain of the steam ferry boat Nuestra Senora de Regla, for and on behalf of the owners of the said ferry boat, of the first part, and Captain Rufus Saxton, as Assistant Quartermaster in the United States Army, for and on behalf of the United States of America, of the second part, witnesseth:"

"That the said party of the first part, for and in consideration of the payment hereinafter promised to be well and truly made by the said party of the second part, hath chartered to the United States the steam ferry boat Nuestra Senora de Regla, with all her tackle, apparel, furniture, and machinery, to be used for transporting troops, stores, or other things as the said party of the second part may direct."

"And the said party of the second part both agree, for and in consideration of the faithful performance of the above duty, that the said party of the first part shall receive the sum of $200 for each and every day the said boat may be kept in service, said steam ferry boat to be kept staunch, sound, and strong,

Page 108 U. S. 94

and her machinery in good running order and condition, by the said party of the first part."

"It is understood by the parties to this agreement that in case the said steam ferry boat shall be confiscated to the United States, then this contract shall be void; otherwise to remain in full force and virtue."

"It is furthermore understood by the parties to this agreement that the said steam ferry boat is not to be run outside of the bar of Port Royal, but at any and all points on the rivers and creeks that connect with Broad River."

"This contract to commence on the 16th day of December, 1861, and continue in force ten days, after which each party has a right to cancel the same."

"In witness whereof, the undersigned have hereunto affixed their hands and seals at Hilton Head, S.C. the day and date first above written."

"[S'd] YGNACIO A. REYNALS [L.S.]"

"[S'd] R. SAXTON [L. S.]"

"Capt. U.S. Army, Chief Quartermaster, E.C."

The testimony shows that $200 a day was a fair price for the use of the vessel at that place at that time. One witness, competent to judge, testified to that effect, and no attempt was made by the United States to contradict him.

The vessel was kept in the possession or under the control of the Quartermaster until the 29th of January, when she was in form delivered to the flag officer of the navy in command at that station. She was, however, kept in constant use by the government as a transport, in the way contemplated by the charter, from the 16th of December until about the 1st of March, when she was sent to New York. No judicial proceedings were begun against her until the ninth of June, when a libel of information in prize was filed in the District Court for the Southern District of New York by the United States, in behalf of themselves "and of the naval captors in interest." She was attached on the same day by the marshal, and the usual monition was issued and served. The owner filed a claim on the 9th of July. No further proceedings were had until the 22d of August, when the following order was entered:

Page 108 U. S. 95

"On reading and filing a notice of motion and a verified copy of a letter from the Secretary of the Navy, stating that the Navy Department desires to obtain possession of the steamer Nuestra Senora de Regla, and on hearing Mr. E. Delafield Smith, United States district attorney, in support of the motion, and Mr. W. R. Beebe, proctor for the claimants, in opposition thereto, it is hereby ordered that the said steamer Nuestra Senora de Regla be appraised by Benjamin F. Delano, United States naval constructor, and Benjamin F. Garvin, chief engineer, both now stationed at the navy yard, New York, and John Inglis; that such appraisement be filed with all convenient speed with the clerk of this Court; that thereafter said steamer be delivered to the Navy Department for the use of the government, upon filing in court a certificate of the assistant Treasurer of the United States in New York that the amount of the appraisement has been deposited in the United States Treasury, subject to the order and disposal of the court on final decree in the case."

"SAMUEL R. BETTS"

The letter of the Secretary of the Navy referred to in this order is as follows:

"NAVY DEPARTMENT, August 11, 1862"

"SIR: The department will take the steamer Nuestra Senora de Regla at the appraisement of $25,000."

"It desires early information, if practicable, as to the appraisement in the case of the Annie, the Stettin, and the Memphis."

"I am, resp'y, your ob't s'v't,"

"GIDEON WELLES"

The vessel was valued by two of the appraisers at $28,000, and by the third at $30,000, and immediately delivered to the Navy Department, although the certificate of deposit provided for was never filed. The cause was heard on the twentieth of June, 1863, and a decree entered directing that the vessel be restored to the owner, but reserving all questions of costs, and damages resulting from the capture, for future hearing and determination. On the 15th of October, 1863, the following entry was made in the cause:

"It having been mutually agreed between the counsel for the

Page 108 U. S. 96

respective parties that the said vessel, in the above decision, was immediately taken into the possession and use of the United States under a charter-party, and delivered them thereunder, and so remained without molestation from the claimants, on motion of the counsel for the vessel, and with the assent of the United States attorney, it is ordered by the court that further proceedings and litigation be stayed in the above cause, to the end that all questions of damages, reserved in the decision of the court in the term of June last, may be considered and adjusted by the government of the United States in the application, and with the concurrence of the government of Spain."

"SAMUEL R. BETTS"

On the 20th of May, 1870, the following letter was addressed to the Spanish minister in Washington by the Secretary of State:

"DEPARTMENT OF STATE, WASHINGTON, May 20, 1870"

"SIR: I have the honor to acknowledge the receipt of your note of the 5th instant in relation to the Spanish steamer Nuestra Senora de Regla, and the claim which arose in consequence of her seizure by the United States authorities in 1861."

"The District Court of the United States for the Southern District of New York, after deciding that the claimants were entitled to restitution of the vessel, made an order suspending proceedings, to the end that the question of damages might be considered and adjusted by the government on the application and with the concurrence of that of Spain."

"Without referring to the reasons which have so long delayed any arrangement between the two governments, I have now to say that it will be most satisfactory to the government that the parties interested should apply to the court, which still retains jurisdiction of the case, to obtain such further relief as justice may demand, and in the mode which that tribunal shall deem most proper and convenient."

"I avail myself of this occasion to offer to you assurances of my very high consideration."

"J. C. BANCROFT DAVIS"

"Acting Secretary of State"

Page 108 U. S. 97

On the 2d of June following, the cause was referred to one of the commissioners of the court to ascertain the amount of damages the claimant had sustained by the seizure and detention of the vessel. The commissioner made his report on the 20th of May, 1871, fixing the damages for the detention at the rate of $200 a day from November 29, 1861, to June 20, 1863, the date of the decree for restoration, with interest at six percent per annum, amounting to $167,370.66 3/2, and allowing for the expenses and services of an agent, remaining with and attending to the vessel, $5,680; for counsel fee in defending the proceedings, $5,000, and for the value of the vessel at the date she should have been restored, with interest added, $36,833.33 1/3; or a total of $214,884. Exceptions were taken to this report by the United States, but they were overruled, and a decree rendered for the full amount allowed by the master, with interest added.

From that decree an appeal was taken to this Court, where at the October term, 1872, it was decided

"that the vessel was not lawful prize of war or subject of capture, and the corporation which owned her is doubtless entitled to fair indemnity for the losses sustained by the seizure and employment of the vessel; but it may be well doubted whether it is not more properly a subject of diplomatic adjustment than determination by the courts."

It was also said in the opinion:

"The decree of the district court included the sum of $5,000 for counsel fees. We think that the amount was greatly excessive, and the allowance for counsel fees wholly unwarranted."

For the errors thus indicated the decree was reversed. The Nuestra Senora de Regla, 17 Wall. 29. The case was then remanded for further proceedings in accordance with the opinion. On the 22d of July, 1873, after the mandate was filed, a second reference was made to the commissioner

"to assess the damages of the claimant of the vessel sustained by him in consequence of the seizure and detention of the vessel, and that on such reference, all the proofs already taken in the cause or before the referee be used, together with such other proofs as may be put in by either party."

Under this reference, the commissioner again reported that the United States continued to use the vessel after she was taken

Page 108 U. S. 98

possession of by the Navy Department pursuant to the order of August 22, 1862, until the 20th of June, 1863, the date of the decree for her restoration, and that she had never been restored to the owners, or her value paid. He therefore allowed:

For detention from November 29, 1861, to June 20,

1863, 568 days at $200 per day . . . . . . . . . . $113,600.00

Interest at 6 percent to date of report . . . . 81,698.00

For value of vessel, ascertained to be . . . . . . . 30,000.00

Interest from June 20, 1863 . . . . . . . . . . 21,549.00

For expenses of agent, 568 days at $10 . . . . . . . 5,680.00

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$252,527.00

To this report exceptions were filed on behalf of the United States, but they were overruled by the court and a decree entered March 8, 1879, for the amount found due, with interest from the date of the report, or in all $308,932.38. From that decree this appeal was taken

Page 108 U. S. 101

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