for false imprisonment, was rejected, the first two constituents as "speculative," and the third (false imprisonment) as "not embraced within the terms of the convention." To Henry Farnam, administrator of the estate of Eliphalet Smith, the sum of $13,146.27 was allowed, for his interest in the cargo and for money paid by him for freight. Items for expenses incurred in defending suits on the charter party in which the owners of the ship recovered were rejected, the Attorney-General saying: "It was the party's own fault to delay the payment and incur the expenses of a lawsuit in resisting a legal demand.” Edward Sharp, as administrator of the estate of Stephen B. Howe, supercargo, made the following claim: 1. For loss of his proportion of the cargo shipped by Smith and 2. The loss of the articles shipped by him on board said vessel 4. Commission on return cargo purchased by Howe at San Car- 5. Commission on return cargo for conducting same to a market in Callao, to wit, 5 per cent on $26,899.62 . "Interest thereon" $3,092. 29 562.56 1, 291. 84 672.43 1,344.98 6, 964. 10 On this claim the Attorney General rendered the following award: Regarding the first item as overcharged, I have reduced the amount to conform with the allowances made in the other cases, relating to this ship and allow And the second item is allowed.. $3,000.00 562.56 3,562.56 "The third, fourth and fifth items are rejected, deeming it more consonant with justice and equity, among the respective claimants, to limit their several claims to their actual loss, rejecting all charges for prospective profits and speculative damages. The claim for interest is rejected for the reason assigned in the award in the case of the ship Providence." The "overcharge" in the first item was due to the failure of the claimant in estimating the value of the cargo to deduct the amount of duties payable on it. The sum of $1,584.07 was allowed to certain underwriters for money paid on a part of the cargo of the vessel, and the further sum of $843.28 was awarded to Captain Low for the loss of a personal adventure. The whole amount allowed on the claim was $66,901.67. Case of the Ship "General Brown." In the case of the ship General Brown, to which reference has heretofore been made, the sum of $454,091.18 was claimed, with interest, on account of the wrongful confiscation of the vessel and cargo. The claim included items not only for the value of the ship and cargo, and for freight, but also for the loss of profits on the voyage. The Attorney-General allowed: For the value of the vessel, $40,000; for the value of the cargo at the time and place of seizure, $139,036; for freight earned on the cargo prior to its seizure, $14,000; for the return of the crew and for the expenses of legal proceedings in Peru, $8,732.18; total, $201,768.18. Case of the Ship "Friendship." In the case of the ship Friendship, of Salem, the memorial set forth the following claims: The Attorney-General allowed the sum of $4,000, the whole of the first and third items. The item for interest was rejected for the reasons stated in the case of the Providence. The fourth item, for the interruption of the voyage, was rejected "for the reason that it was not embraced in the terms of the convention, and is excluded by the rules prescribed by Congress in the first section of the act of the 8th August 1846 for the adjudication of these claims." The fifth item was disallowed, "there being no proof to sustain the charge. No goods were sequestered by the Government of Peru." An additional claim for the sequestration of $600 in money was allowed. A special claim, which was made and rejected, is stated in the following opinion: "ATTORNEY-GENERAL'S OFFICE, 29th July 1847. Special claim for damages resulting to mercantile establishment and credit, from an illegal arrest, and expenses incurred in defense of person and property. "Claimant: Samuel F. Tracy, of New York, assignee of Henry D. Tracy. "Memorial filed 19 April 1847. "The memorial alleges that in April 1823 the ship Friendship, of Salem, Richard Meek, master, arrived as Callao (Peru), consigned to said Henry D. Tracy, who after disposing of her cargo and placing on board a return cargo, including twenty thousand dollars in silver coin, on which coin he had regularly paid before shipment the current legal export duty of five per cent, and when the ship had obtained a clearance and was in the act of leaving the port on her voyage, to wit, on the 26th April 1823, she was seized by the authorities of the port, on the false allegation that she had on board a much larger amount of coin than twenty thousand dollars, and that it was attempted to defraud the revenue out of the export duty on the excess beyond the twenty thousand dollars, so cleared out. That the ship was thereupon taken forcible possession of, by a military officer and twenty-five soldiers, and conveyed to the inner harbor, when the cargo was discharged, together with the twenty thousand dollars, and six hundred dollars additional which belonged to the captain and supercargo of the ship for her and their private use. That the captain of the ship was forthwith sent to prison, there kept for eleven days, during which period the said seizors were employed in searching the ship by wantonly breaking up the cabin ceiling and other woodwork, desks, chests, etc., but found no other coin nor other suspicious goods than said twenty thousand dollars, and six hundred dollars, twenty thousand dollars whereof were restored to the ship on the 12th of May following, and the balance of six hundred dollars was retained by the authorities for further trial, which was subsequently ordered to be paid to the said Henry D. Tracy, after the ship had sailed, but was not paid in consequence of the government having used the money for its own purposes.' The above outline of events that occurred at Callao appears to be recited in the memorial merely by way of inducement to the statement of the injuries complained of in this case. No claim is made for the seizure or damages to the ship. The property of the ship was in other claimants, who are allowed for the detention and injury. No claim is made for the the coin; the twenty thousand dollars were returned and the six hundred dollars has been awarded to the rightful owner. "After reciting the facts in the manner above mentioned, the memorialist proceeds to state the grounds of his claim, for remuneration out of the indemnity stipulated in the convention of the 17th March 1841. The following is an exhibit of the amount claimed and of the several items thereof as appears by the schedule annexed to the memorial of the claimant on file: For damages sustained resulting from illegal arrest of Henry D. Tracy to his mercantile establishment and credit as set forth in the memorial hereto annexed... For sundry expenses incurred in his defense and in defense of his property For interest in $26,500 from 12 May, 1823 to 29 March 1847 at 6 per cent.. For cost of proof and translation $25,000.00 1,500.00 37, 987.75 250.00 64, 737.75 "Having examined the memorial in this case, and the records, documents and all other papers transmitted from the State Department relating thereto, and having heard the evidence offered by the claimant in support of the claim, and maturely considered the same, I do hereby adjudicate and determine, that no part of said claim is embraced within the terms of the convention of the 17th March 1841, and that the whole claim be and the same is hereby rejected. "The sum of three hundred thousand dollars was stipulated to be paid by the Government of Peru, in order to make full satisfaction for various claims of citizens of the United States on account of seizures, captures, detentions, sequestrations and confiscations of their vessels, or for the damages or destruction of them, of their cargoes, or other property at sea or in the ports and territories of Peru. It is not alleged or pretended that the mercantile establishment of Henry D. Tracy was seized by the order of the Government of Peru. There was no seizure, and it is very clear that consequential damages altogether imaginary cannot be allowed. No claim is made directly for the false imprisonment, doubtless for the obvious reason that none such is provided for in the convention. "Attest: "JOHN T. REID, Clerk." beth Ann." "NATHAN CLIFFORD, Attorney-General." In the case of the brig Elizabeth Ann, Thomas DunCase of the Brig "Eliza- lap, assignee of Perit & Cabox, claimed: (1) For loss on the sale of the brig, through deterioration, loss of tackle, etc., occasioned by her unlawful detention, $3,000; (2) money paid by the master to the charterer, in consequence of the brig's inability to proceed to Guayaquil owing to her detention, $1,100; (3) the estimated loss of homeward freight, owing to the damaged condition of the brig, $3,000; (4) expenses incurred in going to Iquique and Tarapaca to receive part of the price of the brig when sold, $315.50; (5) expenses incurred in a lawsuit (representing presents for three judges and the fiscal, $850; treasurer of the custom-house, $425; a horse given to General Valero, $250; saddle and bridle for the same, $130), $1,655; (6) board and horse hire of the master while attending trial, $290; (7) medical attendance on the master, $200.25; (8) passage and stores of the master to Arica homeward, $112.50; (9) passage, freight, and stores of the master to Philadelphia, $448; total, $10,121.25. The Attorney-General allowed the sum of $3,950.50, which included $2,000 on the first item for deterioration and injury of the vessel and loss of tackle by the detention; the whole of the second item, it appearing that the money was actually paid to the charterer; the sixth item, for board of the master, and the eighth and ninth items, for the passage of the captain, it being necessary for him to return after the sale, the vessel having become unseaworthy by the detention. The allowance on the first item was for loss arising from the "direct injury" to the vessel, the residue being rejected on the ground that it fell "within the rules of speculative damages." The third item, for freight not earned, was declared to be "clearly inadmissible for the same reason." The fourth item, for the ex penses of a journey to receive part of the price of the brig, was considered "too remote to be taken into the account." The fifth item, for presents to the judges and other officials, was rejected as "wholly inadmissible. No allowance can be made for bribes." The seventh item, for medical attendance, was rejected as falling "within the rule of speculative damages." Another claim in the case of the Elizabeth Ann, made by Joseph A. Clay, administrator of the estate of Charles G. Swett, for loss of cargo by reason of the detention, was allowed to the amount of $4,435.56. This allowance included an item of $1,885 for the value of the goods; of $1,750 for demurrage paid to the master in cash; of $620.56 paid to the master for expenses; and of expenses of board, etc., during the detention. Case of the Ship "Catharine." In the case of the Bremen ship Catharine the claimants demanded (1) $1,575, the amount of export duty paid to the Colombian Government on a quantity of cocoa shipped on that vessel at a Colombian port, and afterward exacted by the Peruvians again, on their entering into possession of the port; and (2) $700 for demurrage alleged to have been paid by the owners of the ship in consequence of the detention caused by the above-mentioned incident. The Attorney-General allowed the first item. The second he rejected for want of evidence that the demurrage was paid, or that any claim for it was enforced. The Schooner "Henry," and other Cases. In the case of the schooner Henry, which was a claim for the unlawful detention of the vessel, Samuel F. Tracy, as assignee of Henry D. Tracy, demanded: (1) For the value of two brass cannon and their carriages, taken by the captors, $400; (2) for a boat and oars taken at Callao, $200; (3) for money expended in defending the property, $2,000; (4) for money expended in releasing the master from prison, $200; (5) for loss of the master's services while in prison, $200; (6) for loss of profits in the exchange of the cargo at Pisco, and for breaking up the voyage, $5,000; (7) for demurrage, and support of the officers and crew during four months, $6,000; (8) interest, $20,659.33; (9) cost of preparing proofs and translations, $200; total, $34,859.33. The Attorney-General allowed the sum of $8,800, being the whole of items 1, 2, 3, 4, and 7. The fifth item, for loss of the master's services, and the sixth, for loss of profits and for the breaking up of the voyage, were disallowed, as not being within the terms of the convention. No allowance was made for the preparation of proofs and translations, or for interest. The principles applied in this and the preceding cases were also applied in the cases of the ship Flying Fish and the schooner Wasp, in which claims for unearned freight, for interest, and for the expenses of preparing proofs and translations were rejected, only the actual losses and costs in Peru being allowed. In the case of the bark Peru, of Salem, the claim was composed of the following items: (1) Detention and sequestration of the bark for the transportation of 335 soldiers, say at $10 a head, $3,350; (2) articles stolen by the soldiers, $708.62; (3) damages to the ship and detention for repairing them, $300. From the aggregate of these items the claimant deducted the sum of $1,641.75, realized from the sale of a Peruvian draft for $2,512.50, leaving as the whole amount claimed, exclusive of interest, the sum of $2,716.87. The Attorney-General allowed the sum of $1,008.63, being the whole of the second and third items. The first item was disallowed for the reason that it appeared that the charge had been made the subject of a settlement between the agent of the claimant and the Peruvian Government two years before the date of Mr. Larned's note to the minister for foreign affairs. In the case of the ship China, of Salem, the claimants demanded: (1) For wrongfully causing the ship to deviate from her intended voyage, resulting in her detention from February 25 to March 3, 1824, six days, at $100 a day, $600; (2) for damages done the China by a 24-pound shot fired into her, $500; (3) for damage done to the cargo by the shot, $1,610. The Attorney-General allowed the sum of $2,710, being the whole claim, exclusive of interest. The schooner Robinson Crusoe and her cargo were seized and appropriated by Admiral Guise, of the Peruvian navy, without legal adjudication, and were destroyed while in his possession. The sum of $10,000 was allowed, the actual value of the vessel and cargo. A claim was allowed in favor of Samuel F. Tracy, assignee of Henry D. Tracy, for the seizure on land of naval stores, furniture, and other property, which were guaranteed by the capitulation of Lima, but were seized by the Peruvian authorities in violation thereof. Case of the "Macedonian." We have narrated elsewhere the history of the claim against Chile growing out of the seizure by Lord Cochrane, in the valley of Sitana, Peru, in May 1821, of a sum of money, the proceeds of the sale at Tacna of a part of the cargo of the American brig Macedonian. At that time the greater part of the cargo remained unsold, and the master of the brig, Eliphalet Smith, was on his way to Arequipa with a view to dispose of the residue. In July 1821 the combined forces of Chile and Buenos Ayres, under General San Martin, obtained possession of Lima and established there a provisional government. In December of the same year Captain Smith, having found a part of his cargo unsalable at Arequipa, sent it under convoy to Lima, in charge of Stephen B. Howe, his nephew, with orders to consign it for sale to Abadia & Arismendi, his usual commission merchants, if that house continued to exist, and if not, to some other suitable consignee. It turned 1 Supra, 1449. |