This Court having decided in
The Paquete Habana,
175 U. S. 677,
that certain fishing smacks engaged in coast fishing for the daily
market were not liable to capture, and ordered that the proceeds of
vessels and cargoes be restored to the claimants with compensatory
and not punitive damages and costs, and it appearing that the
damages allowed were excessive, the cases were remanded to the
district court for further proceedings.
Under the circumstances of this case, the decree should be
entered against the United States, and not against the captors
individually.
The case is stated in the opinion of the Court.
Page 189 U. S. 463
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are cases of fishing smacks, which were libeled as
Page 189 U. S. 464
prize of war. The proceedings in all the cases are similar, and
the evidence to a large extent the same. It was decided by this
Court in two of the cases,
The Paquete Habana and
Lola, 175 U. S. 677,
that smacks of this sort, engaged, as these were, in coast fishing
for the daily market, were not liable to capture, and decrees were
ordered that the proceeds of the vessels and cargoes be restored to
the claimants, with damages and costs. On motion of the United
States, it was ordered that the decrees be modified so as to direct
that the damages should be compensatory only, and not punitive.
Decrees were entered in each of the above-named cases by the
district court in pursuance of this mandate, and agreements between
the United States, the captors, and claimants were filed that the
damages should be charged against the United States or the captors,
or apportioned "as to justice may appertain and as the legal
responsibility therefor may appear," saving the right to review the
decrees as to amount and as to where the ultimate responsibility
rested. The papers do not disclose such an agreement in the
Cuatro de Settembre, but, as the records, so far as
similar to the first two cases, were not printed, we assume that
the omission was only in the index, and that it was understood that
this case should stand like the rest. The cases were referred to a
commissioner to report the amount of damages. He reported his
findings and the evidence. The United States excepted to the
findings as excessive. The district court entered decrees against
the United States for the amounts, and the United States appealed
on the grounds that the decrees should have gone against the
captors, and not against the government, and that the damages were
excessive, and the exceptions to the commissioner's report should
have been sustained.
We do not see how it is possible that a decree should be entered
against the captors. There was no formal intervention by them, and,
whether a decree can be made against the United States or not, it
has so far adopted the acts of capture that it would be hard to say
that, under the circumstances of these cases, it has not made those
acts its own. It is not disputed that the United States might have
ordered the vessels to be released. It did not do so. The libels
were filed by the United
Page 189 U. S. 465
states on its own behalf, praying a forfeiture to the United
States. The statutes in force seemed to contemplate that form of
procedure, Rev.Stat. § 4618, and such has been the practice under
them. The libels alleged a capture pursuant to instructions from
the President. The captures were by superior force, so that there
was no question that the United States was interested in the
proceeds. Rev.Stat. § 4630. The modification of the decrees in
regard to damages, on motion by the United States, imported a
recognition of the interest of the United States in that matter and
its submission to the entry of decrees against it. The agreements
to which we have referred had a similar import, although they
indicated an awakening to a determination to argue the form of the
decree. In the case of
Little v.
Barreme, 2 Cranch 170, conversely to this, the
United States was not a party, and the captor was. All that was
decided bearing upon the present point was that instructions from
the President did not exonerate the captor from liability to a
neutral vessel. As to even that, the Chief Justice hesitated. But
we are not aware that it is disputed that, when the act of a public
officer is authorized or has been adopted by the sovereign power,
whatever the immunities of the sovereign, the agent thereafter
cannot be pursued.
Lamar v. Browne, 92 U.
S. 188,
92 U. S. 199,
and as to ratification,
Buron v. Denman, 2 Exch. 167, 187,
189;
Secretary of State in Council of India v. Kamachee Boye
Sahaba, 13 Moo.P.C. 22, 86.
See Dempsey v. Chambers,
154 Mass. 330, 332. The principle and authority of
Buron v.
Denman was recognized and followed by the Court of Claims in
Wiggins v. United States, 3 Ct.Cl. 412, 423.
If we are right so far, we think that, under the circumstances
of this case, a decree properly may be entered against the United
States. The former decree of this Court remains in force and
requires a final decree for damages.
In re Potts,
166 U. S. 263,
166 U. S. 265;
McCormick v.
Sullivant, 10 Wheat.192,
23 U. S. 200.
The decree must run against the United States if a decree is to be
made. In The
Nuestra Senora de Regla, 108 U. S.
92,
108 U. S. 102,
the Court was of opinion that the United States had submitted to
the jurisdiction of the court so far as to warrant the
ascertainment of damages according to the rules applicable to
private persons in
Page 189 U. S. 466
like cases. It seems to us that the facts here are not less
strong. Decrees in cases which disclose no special circumstances
have been recognized by subsequent statutes providing for their
payment.
The Glen, Blatchf. Prize Cases 165; Act of
February 13, 1864, 13 Stat. 575, c. 10;
The Labuan,
Blatchf. Prize Cases 165; Act of July 7, 1870, 16 Stat. 649, c.
220;
The Sybil, Blatchf. Prize Cases 615; Act of July 8,
1870, 16 Stat. 650, c. 231;
The Flying
Scud, 6 Wall. 263; Act of July 7, 1870, 16 Stat.
649, c. 219.
See also 16 Stat. 650, 651, c. 234.
We pass, then, to the other ground of the appeal. With regard to
this, it is objected that the exceptions to the master's report are
not sufficient to open the question; referring to
The
Commander-in-Chief, 1 Wall. 43,
68 U. S. 50. But
the objection being the general one that the evidence did not
warrant the finding, and all the evidence being attached to the
report, nothing more is needed.
On the amount of the damages, we are of opinion that further
proceedings must be had. We do not forget the weight that is given
to the findings of a master or commissioner upon matters of fact.
But this weight is largely, although not wholly, due to the
opportunity, which we do not share, of seeing the witnesses. So far
as the commissioner disregarded the testimony of the witnesses whom
he saw, we should hesitate to overrule his conclusion, although it
seems too absolute on the grounds set forth. But the result reached
is based on documentary evidence which is before us, and as to
which we have equal opportunities for forming a judgment. It
appears to us plain that this evidence was given undue weight. The
source from which it comes and the high valuations require that it
should be taken with considerable reserve. The commissioner had a
right, which he seems to have thought that he did not possess, to
chancer the estimates. He adopted the owners' prices without
qualification. The certificate of the harbormaster of Havana is
dated November 23, 1898. It does not purport to be a copy of any
earlier record. It is true that he makes his valuation as of March
1, 1898, but he does not say, either in the certificate or in his
testimony, that he made that valuation at that or any other date
before November 23. We shall not go over the
Page 189 U. S. 467
other evidence in detail. Some, at least, of the vessels were
old; the
Paquete Habana, for instance at least eighteen or
twenty years. One-half interest was bought in 1892 for $2,400. She
is valued in 1898 by owners, harbormaster, and commissioner at
$4,500. The
Lola was purchased "at a cheap price,"
according to the owner, in 1887. The valuation of some of the other
smacks is above the price said to have been paid for them in
earlier years.
In the case of the
Espana, it appears that she was
about fourteen years old, and cost, when built, $10,000. She is
valued by the owners and harbormaster, agreeing as usual at $9,000.
The commissioner adopts this valuation. Yet it appears that the
vessel was resold to the owners for $2,300. Whether this price was
a fair value or not, and the owners would not give more, the result
of the sale was that they had their boat back again. It is
apparent, therefore, that their actual loss was only what they had
to pay to get it, the loss from detention of the boat, and any wear
and tear and changes that it had undergone in the meantime. In a
case of the present kind, it would be going beyond the requirements
of justice into the realm of very doubtful technicalities to
disregard the fact that the vessel got back because it was due to a
subsequent transaction with a stranger. There is some evidence that
the same thing happened in some or all of the other cases.
See
The Lively, 1 Gall. 315, 321.
The fish are allowed for at the highest price in Havana during
the blockade, which is too high a rate, and interest was charged at
eight percent, there being no reason apparent for charging more
than six if interest was allowed.
See
Lincoln v.
Claflin, 7 Wall. 132,
74 U. S. 139;
The Amalia, 34 L.J.Adm. 21;
Straker v. Hartland,
2 Hem. & Mil. 570;
Frazer v. Bigelow Carpet Co., 141
Mass. 126. These are details, but they show what is manifest
throughout, that the owners' demands have been accepted without
discrimination on evidence which does not justify the result.
We think that we have said enough to show that a revision of the
findings is necessary. It seems to us better that this revision
should take place in the district court, rather than
Page 189 U. S. 468
be attempted by us. Whether further evidence shall be taken we
leave to the parties and to that court.
Decrees reversed, and cases remanded for further proceedings
in accordance with this opinion.