Ceballos & Co. v. United States
214 U.S. 47 (1909)

Annotate this Case

U.S. Supreme Court

Ceballos & Co. v. United States, 214 U.S. 47 (1909)

J. M. Ceballos & Company v. United States

No. 108

Argued March 10, 1909

Decided May 17, 1909

214 U.S. 47

APPEAL FROM THE COURT OF CLAIMS

Syllabus

Where a contract requires construction as to the mode of its performance, a similar contract in writing between the same parties which had been fully performed prior to the execution of the contract to be construed serves, within proper limitations, to throw light upon the construction of the later contract, and may be referred to for that purpose.

A contract having been made by the United States with Ceballos & Co. for the repatriation of the Spanish prisoners in Cuba after the Spanish war, similar in terms to another contract subsequently made with the same parties for the repatriation of the Spanish prisoners

Page 214 U. S. 48

in Manila, providing certain accommodations for officers and steerage accommodations for men and other persons designated by the Secretary of War, the fact that in the performance of the Cuban contract the wives and children of the officers were given similar cabin accommodations to those of their respective husbands and fathers, and the United States had paid therefor the higher rate, held to be material in construing the Philippine contract and also held that Ceballos & Co. were entitled to payment for the transportation of the wives and children of officers at cabin rates.

The same contract construed as entitling Ceballos & Co. to half rates of cabin transportation for children under ten, and steerage rates for the "other persons designated by the Secretary of War," that expression not embracing wives and children of officers, but embracing all designated persons other than officers and their wives and children. A contract carrying out treaty obligations should be liberally construed so as to effectuate the purposes intended by the treaty.

In the light of all the surrounding circumstances, it will not be assumed that the United States, in carrying out its stipulations for the capitulation of Manila, would commit an act of inhumanity such as separating the surrendered officers from their wives and children by furnishing the former with cabin and the latter with steerage accommodations on the voyage to Spain under the repatriation provision of the treaty of peace.

42 Ct.Cl. 318 reversed.

The facts, which involve the construction of the contract between Ceballos & Co. and the United States for the repatriation of the prisoners of war and other persons from the Philippine Islands to Spain, are stated in the opinion.

MR. JUSTICE WHITE delivered the opinion of the Court.

Speaking in a general sense, this case involves determining how much, if anything, is due by the United States to J. M.

Page 214 U. S. 49

Ceballos & Company, the appellants, for services rendered in pursuance of oral and written contracts for the repatriation of certain persons from the Philippine Islands to Spain. Before coming to the case as made by the record, it is necessary to dispose of a preliminary consideration which may throw light upon one of the questions arising for decision.

Ceballos & Company -- who here assert their rights as arising from contracts made, as we have said, concerning transportation of persons from the Philippine Islands to Spain -- after the surrender of the Spanish forces at Santiago, made a contract with the United States for the repatriation from Cuba to Spain of the prisoners of war resulting from that surrender. That contract was performed, and it is conceded that all obligations of the United States under the same were discharged. It is admitted, however, that at the trial below, the Cuban contract, as it is termed, was offered, and the mode of execution thereof was established by competent evidence, upon the assumption that such facts were proper to be taken into view in the elucidation of the particular contracts which are here involved. No finding was made by the lower court on the subject, although one was requested. After the filing of the record in this Court, a motion was made praying that the lower court be directed to find whether or not the Cuban contract had been made, as stated, and whether or not the wives and children of Spanish officers transported thereunder were also transported under the contract, and, if they were, the rate paid for such transportation. The motion was resisted, and action thereon was postponed until the hearing on the merits. In the discussion at bar, it was conceded by the government that the Cuban contract had been offered in evidence below, that the contract was correctly printed in one of the briefs, and that it had been performed in a particular manner. It was, however, insisted that the Philippine contracts here involved were unambiguous, and therefore the Cuban contract was irrelevant. It was conceded, if it was deemed that there was such ambiguity in the Philippine contracts as to require construction, and that

Page 214 U. S. 50

the construction might be elucidated by the Cuban contract and the mode of its performance, that contract and the admission as to the manner in which it had been performed might be treated as part of the record for the purposes of the case before us without the necessity of directing findings on the subject. As we are clearly of opinion that the contracts which are here involved require construction, and that the previous contract between the parties as to the movement of the prisoners of war from Cuba to Spain, and the construction which obtained in the execution thereof, may serve within proper limitations to throw light upon the construction of the contracts here involved, we treat the Cuban contract and its mode of performance as embraced in the record, and review the case in the light thereof.

In the month of July, 1898, and from that time until the commencement of this litigation, the members of the appellant firm were the American operators and agents of the Compania Transatlantica, a steamship line engaged in the transportation of freight and passengers between the ports of Spain and the Philippine Islands. As such agents, Ceballos & Company executed a contract with the United States, a copy of which is in the margin [Footnote 1] to safely transport from Cuba to Spain the

Page 214 U. S. 51

troops of Spain surrendered at Santiago de Cuba. Under this contract the wives and children of Spanish officers were carried in the cabins, and, without question, the first-class rate was paid for the transportation.

The City of Manila surrendered the thirteenth of August,

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1898, and August 14 the United States and Spanish authorities agreed upon written terms of capitulation, of which article 5 is as follows:

"All questions relating to the repatriation of officers and men of the Spanish forces and of their families, and of the expenses which said repatriation may occasion, shall be referred to the government of the United States at Washington."

The following statement as to the situation at Manila and the making of an oral contract and subsequently of a written contract are taken from findings made below.

There was surrendered to the United States forces at Manila on August 13, 1898, a large number of civil, naval, and military officers and their families, and a much larger number of enlisted men, together with the wives and children of some of these enlisted men. Many of these were in a pitiable condition physically, exhausted with exposure and disease -- 1,200 being sick at one time -- all of them fed, guarded, and attended at

Page 214 U. S. 53

the expense of the United States. Smallpox had been prevalent, and infection was apprehended. The civil prisoners included Spanish civil officers on duty in the Philippine Islands under the government of Spain. Many of these had wives and children with them. There were besides a number of civilians, such as nurses, nuns, monks, friars, sisters of charity, and lady pensioners. The United States treated all of these classes as prisoners of war, and had supreme control of them after the surrender of Manila until they were delivered aboard plaintiff's ships for transportation at which time the supervision of the United States ceased. Spanish officers had, in the meantime, only such supervision over their troops as the United States permitted.

General Otis, commanding the United States forces in Manila, considered that an emergency existed requiring immediate action, and, on October 7 and October 24, 1898, cabled the War Department at Washington the request of the Spanish general at Manila for permission to allow sick Spanish officers and soldiers to depart for Spain. Permission being granted, these officers and soldiers were shipped on vessels of the Compania Transatlantica by the Spanish authorities in Manila, acting under the supervision and control of the United States authorities, but under an oral agreement with Ceballos & Company, as hereinafter stated.

In the emergency deemed existing by the commanding general, and communicated to the War Department, the Secretary of War, in October or November, 1898, entered into an oral agreement with Ceballos & Company by which the latter agreed to transport such of the Philippine prisoners as the United States desired to return to Spain, the price to be paid for such transportation to be the price fixed after the United States should advertise for bids for such transportation, under contract expected thereafter to be entered into under the terms of a treaty of peace between the United States and Spain.

Under this oral agreement, Ceballos & Company immediately began furnishing vessels, and the transportation of the Philippine

Page 214 U. S. 54

prisoners commenced by a vessel which sailed from Manila, November 7, 1898, and continued until another and a written contract was entered for the transportation of those prisoners not transported under the oral agreement. under the oral agreement.

The shipments under the oral contract were five in number, and the wives and children of officers were carried in the cabin, as under the Cuban contract.

On December 10, 1898, by the treaty of peace, it was stipulated in paragraph 1, article 5, that --

"The United States, will, upon the signature of the present treaty, send back to Spain at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces."

And in article 6, that --

"Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses in connection with the insurrections in Cuba and the Philippines and the war with the United States."

"Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines."

"The government of the United States will, at its own cost, return to Spain, and the government of Spain will at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article."

On January 20, 1899, the Quartermaster General, U.S. Army, by direction of the Secretary of War, invited sealed proposals

"for the transportation of the Spanish prisoners of war now in the Philippine Islands . . . to Cadiz or such other ports of Spain as may hereafter be designated."

Among other things, it was stated in the advertisement as follows:

Page 214 U. S. 55

"Their number is estimated as about 16,000 officers and enlisted men. Cabin accommodations are to be supplied for the officers and third-class or steerage accommodations, having suitable galley accommodations, conforming to the United States requirements as to space and ventilation, for the enlisted men."

"* * * *"

"Proposals will state the price per capita for transporting officers and for transporting enlisted men, and for their subsistence, and delivering them on shore at the Spanish port or ports to be designated, and will be accompanied by a guaranty that the prisoners will be comfortably cared for and subsisted while on the journey."

"* * * *"

"Payment for the service will be made when evidence is furnished that the ship has arrived with her passengers at point of destination. The number of officers and men counted aboard at place of embarkation by the quartermaster is to determine the number to be paid for."

The following bid was submitted:

"Sir: In accordance with the advertisement of Gen. M. I. Luddington, Quartermaster General, U.S. Army, copy of which is hereto attached, I propose, on behalf of Messrs. J. M. Ceballos & Company, agents of the Compania Transatlantica, de Barcelona, to furnish transportation for the Spanish prisoners now in the Philippine Islands to any port or ports in Spain. Their number estimated at 16,000 officers and enlisted men. I propose to use in this service the steamers named in the annexed list, which fully sets forth the classification of each, the tonnage capacity of each, their speed, the berth accommodations upon each, and the approximate length of time required by each vessel to make the voyage to Spain. (The length of time is estimated from Manila.) Said list gives the time at which each vessel will arrive in or off the harbor of Manila for orders, the act of God and all dangers of the sea excepted."

"It is proposed not to load the steamers beyond two-thirds

Page 214 U. S. 56

of their steerage capacity. This is considered not only advisable as an act of humanity, but absolutely necessary owing to climatic conditions and length of voyage."

"I further propose to call at any port of the Philippine Islands that the U.S. government may designate, provided the vessels can safely lay afloat."

"The charge for this service is dependent on the ports of call in the Philippines, and also on the quarantine regulations in Spain, but I propose and hereby agree to do this service at a price not to exceed in any case:"

"For each officer . . . . . . $215.00"

"For each enlisted man. . . . 73.75"

"It is proposed to furnish subsistence equal to the United States garrison rations, or, if preferred, the usual rations furnished under Spanish regulations."

"I will furnish a satisfactory bond for the faithful fulfillment of this service."

This bid was accepted, and on March 4, 1899, a contract was executed between the Secretary of War and Ceballos & Company, by their attorney in fact which, omitting the attestation clause and signatures, is as follows:

"Whereas, under the terms of the treaty of peace entered into by and between the representatives of the governments of the United States and of Spain, signed at Paris on December 10, 1898, it is mutually agreed and stipulated in the first paragraph of Article V that --"

"The United States will, upon the signature of the present treaty, send back to Spain at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces."

"And in Article VI, which reads as follows:"

" Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses in connection with the insurrection in Cuba and the Philippines and the war with the United States. "

Page 214 U. S. 57

" Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines."

" The government of the United States will at its own cost, return to Spain, and the government of Spain will at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article."

"And whereas sealed proposals having been invited for the transportation of the Spanish prisoners from Manila or such other port in the Philippine Islands as may be designated, to Cadiz or such other port in Spain as may be designated, and in response thereto the proposal of J. M. Ceballos & Company, of New York, having been duly accepted by the Secretary of War of the United States:"

"Therefore this article of agreement is made and entered into this 4th day of March, 1899, by and between the said J. M. Ceballos & Company, for the transportation of the said prisoners of war from the Philippine Islands to Spain, as are designated in the terms of the treaty of peace, referred and quoted herein."

"The said J. M. Ceballos & Company hereby agree to furnish good and safe transportation for such number of prisoners of war and persons as may be designated by the Secretary of War, from the Philippine Islands to such port in Spain as may be designated by the Secretary of War, and to furnish to them subsistence while en route and on board the ships, and to deliver them on shore in Spain."

"The said company further agrees that, for the purpose herein stipulated, they will provide a sufficient number of steamships for the safe and comfortable transportation of the prisoners of war and such other persons as may be designated by the Secretary of War, with cabin accommodations for all officers, and third-class or steerage accommodations, space,

Page 214 U. S. 58

and ventilation for the enlisted men and other persons on board each ship; that the subsistence furnished by the company shall be equal in every respect to the United States army garrison rations."

"The company further agrees to provide a sufficient number of steamships in the harbor of Manila to perform the entire service as herein stipulated, so that the embarkation of the last of the prisoners of war and the other persons may be made not later than May 1st, 1899; that the ships to be used for the purpose are named and described in the list submitted with their proposals, copy of which is hereto attached as a part of this agreement, and the company agrees that no troops shall be transported upon any one of said ships in excess of two-thirds of the steerage capacity of each ship, as shown in the list referred to."

"In consideration of the faithful performances of the foregoing stipulations and in compensation therefor, the Secretary of War hereby agrees, on behalf of the United States, to pay to the said J. M. Ceballos & Company, for the transportation, subsistence, and delivery on shore of each commissioned officer, the sum of two hundred and fifteen dollars ($215), and for each enlisted man, private soldier, or other person designated by the Secretary of War for transportation the sum of seventy-three dollars and seventy-five cents ($73.75), the said sums to be due and payable upon evidence that said officers, enlisted men, or persons have been transported, subsisted, and delivered on shore in Spain."

"It is further agreed that the prisoners of war and all other persons to be transported shall be delivered by the United States on board the ships at such ports in the Philippine Islands as may be designated by the Secretary of War, within five (5) working days after the vessel or vessels are ready to receive them. Demurrage, if any, earned by any such steamer or steamers, to be paid by the United States at the rate of fifteen cents (15

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