As to the claims of the second class for the loss of charter-parties or freights, it is possible that in a certain sense double claims may, in a few instances, have been made by the owners of the ship, and by the charterers; but Charter-parties or these double claims are of an amount almost inappreciable as compared with the sum total. freights. Loss of profits, There may also be some claims of the second class for the loss of profits on goods and other merchandise which do include the freight and insurance paid on these goods. But we believe that these claims should be allowed to the full extent of the freight and insurance paid, for, at the time the goods were destroyed, they had cost the merchant what he had paid for them, together with the freight and insurance he had paid upon them, and certainly the value of those goods to him cannot be considered as less than this aggregate. Claims have been advanced for what may be considered as prospective losses in the loss of the voyage of a chartered ship, in the destruction of goods shipped to be sold at a large profit in a distant part, or in the breaking up of a whaling season which has just begun in a remote sea. All claims of this kind Messrs. Cohen and Young think should be absolutely rejected; but we maintain that such a rejection would be directly contrary to the general language of the Roman law: "Quantum mea interfuit; id est, quantum mihi ab est quantumque lucrari potui," and would also be contrary to the existing rule of the common law, which is thus stated in the last edition of Sedgwick on Damages, page 86, note: "It may now be assumed to be the general rule that in actions of tort, where the amount of profits of which the injured party is deprived, as a legitimate Loss of profits a result of the trespass, can be shown with reasonable certainty, such profits part of the damages constitute to that extent a safe measure of damages. In these cases the in actions in tort. rule adopted with reference to certain breaches of contract which makes the offending party liable for the loss of profits, so far only as he foresaw, or should have foreseen that particular consequence of his act, does not apply. He who commits a trespass must be held to contemplate all the damage which may legitimately follow from his illegal act, whether he might have foreseen it or not, and, so far as it is plainly traceable, he should make compensation for it. To this extent the recovery of a sum equal to the profits lost while fairly within the principle of compensation, is also within the limits which exclude remote consequences from the scale in which the wrong is weighed." It may be true that in some instances the courts of the United States and England, bound down by the rules of law in previous cases, have reduced the award for prospective damages in the destruction of a vessel and her cargo, to the low and average rate of interest upon loaned money; and thus, though it is well known that the profits for maritime and mercantile adventures are generally much greater than those obtained from the loan of capital at the ordinary rate, the injured party has been made to suffer from the inability of the court, who, though they recognize the justice of the claim, are limited by the checks on their power to estimate. In regard, however, to the claims presented to this Tribunal for damage by the loss of profit, we confidently expect that an award will be made which will bear a due relation to the great actual damage caused. What has been already said as to the loss by the breaking up of a merchant voyage, or by the destruction of goods, applies much more strongly Breaking up voy to the breaking up of a whaling or fishing voyage. Writing of vessels ages of whaling ves-engaged in these voyages, Mr. Crapo says, (7 U. S. Docs., p. 194 :) sels. "The vessels destroyed had entered upon their cruises, and were engaged in the prosecution of their whaling voyages. Most of the ships had sailed many thousands of miles from their North Atlantic home ports, around Cape Horn, and, traversing the length of the Pacific Ocean, had reached their whaling-grounds in the Arctic. Many months had been consumed in the passage. The ships engaged in this business leave home in the months of September and October, and reach their cruising-grounds the following May, and then entering the ice of that northern ocean, penetrating it as it breaks up in summer, commence their whaling in June, and continue the taking of their cargoes until the storms of September compel them to make their way out of Behring's Straits, whence they proceed to recruit for another season's work, or for the passage home. When the Shenandoah destroyed the twenty-six whale-ships in the North Pacific and Arctic, these vessels had entered upon the portion of their voyages which was to remunerate them for the long passage from home and the long passage back again, which passages would add little or nothing to their cargoes. Hence, the portion of the voyage which brings to the owners and crew a return for their capital and labor is embraced in a few months of summer whaling. The great expense involved in sailing these vessels into distant seas had been incurred when the Shenandoah came upon them and burned them. If they had not been molested, they would have obtained their accustomed catch, and the owners and crews would have received the usual return for their outlay and labor. If, then, the claim of a merchant-vessel for the freight-money she would have earned upon the delivery of her cargo, if she had not been destroyed, is a just and legitimate one, and recognized as one for compensation, then the claim for prospective catch' is equally just and legitimate. "Another consideration for the allowance of 'prospective catch,' which presents itself with much force, is the interest which the captured seamen have in it. The masters, officers, and crews of whale-ships are not paid by monthly wages, as in the merchant marine, but by 'lays' or shares in the oil and bone taken. Their proportion of these catchings amounts to a percentage varying from 30 to 40 per cent. of the whole cargo. These men encounter the dangers and toil of this peculiarly hazardous business, and their remuneration for the support of themselves and families is dependent upon the catch of whales during the short season of summer. If no allowance is made for prospective catch, these men receive nothing for their many months of toil and exposure. This business, when undisturbed by violence, is sure of a return. As certain as the harvest to the farmer, is the catch of oil to the whaleman. The average catch of whales is well known and understood by the merchant and the seaman. Upon this knowledge of probable average catch the sailor readily procures an advance before sailing, and his family obtain necessaries and a support during his absence. In case of his death or disability during the voyage, and before any cargo has been obtained, he or his family share in the whole catch of the voyage, in the proportion of his term of service to the entire period of the voyage. By the burning of the Arctic fleet, Captain Waddell, of the Shenandoah, left these men utterly helpless thousands of miles away from their homes, and with no means of returuing to them. He destroyed not only all their personal effects, but he destroyed also the earnings of a whole year of service, and burdened them with the debts contracted at home for the support of their families during their absence. "Whatever money is obtained from the English Government for loss of prospective catch, is, under the provisions of the shipping articles, subject to division among the officers and crews, in the proportion of their respective lays.' Hence the amount embraced in this item of the claims is not entirely profits of the owners, but represents damage to officers and crew, as well as loss of outlay and capital, and the expenses incident to this business. "In preparing the claims which have been presented to you, the claimants have varied in the amounts for which they ask compensation under the item of prospective catch. This variation arises from the fact that whale-ships are fitted for voyages of from three to five years in duration, and while some of the ships destroyed had partially completed their voyages, others were upon their first season. The estimates of oil and bone have been based upon the average takings of these and other vessels engaged in such voyages as they were prosecuting. Carefully prepared, accurate, and reliable statements have yearly been collected by those interested in these fisheries, which exhibit the total quantities of oil and bone taken, and the number of vessels employed, both in the sperm and right-whale fisheries. An examination of these yearly statements will demonstrate that the claims for prospective catch are not fictitious or excessive. "The prices affixed in these estimates of 'prospective catch' have mostly been determined by ruling rates for oil and bone where the same is marketed, at times when the same would have found a market." it We are confident that if this Tribunal shall determine to award a sum in gross, will find, in the facts above stated, and in the general principles of equity and justice, abundant ground for making an estimate in that award of damages which claimants have sustained in the loss of profits on goods in freight, or for merchant voyages, but above all for those great losses which owners, officers, and crew have experienced in the sudden breaking up of the long-continued but yet just begun whaling voyage. On page 471 of the Case of the United States, it is stated that "it is impossible at present for the United States to present to the Tribunal a detailed stateClaims of the offi ment of the damages or injuries to persons growing out of the destrucears and crews. tion of each class of vessels. Every vessel had its officers and its crew. who were entitled to the protection of the flag of the United States, and to be included in the estimate of any sum which the Tribunal may see fit to award. It will not be difficult, from the data which are furnished, to ascertain the names and the tonnage of the different vessels destroyed, and to form an estimate of the number of hardy, but helpless, seamen who were thus deprived of their means of subsistence, and to determine what aggregate sum it would be just to place in the bands of the United States on that account. It cannot be less than hundreds of thousands, and possibly millions of dollars." To this statement, and to this class of claims, we again call the attention of the Tribunal, feeling confident that Her Majesty's Government will agree that they are just, being in accordance with a recent decision of Sir Edward Thornton, one of Her Majesty's High Commissioners in the making of the Treaty under which this Tribunal is now sitting, which decision was given in July, 1870, when he was acting as arbitrator on a question that had arisen between the United States and Brazil, as to the liability of Brazil to make compensation to the United States for the loss of the whale-ship Canada, of New Bedford, through what was alleged to have been the improper interference of certain officers of the Government of Brazil. In that case, Sir Edward Thornton decided that the Government of Brazil was responsible for the damage caused by the loss of the Canada, and in his award said: "Certain expenses incurred for the maintenance and passage home of the crew, as also three months' wages to each of the crew, being the amount which all owners of vessels of the United States are bound to pay to seamen discharged abroad, the undersigned considers to be justly due;" and in his award allowed for these items, estimating the wages of the mate at $100 per month, the wages of the second mate at $75 per month, the wages of the third mate at $60 per month, the wages of the fourth mate at $50 per month, the wages of the four boatswains at $40 per month, the wages of four other boatswains at $30 per month, and the wages of fourteen men, sailors, &c., at $12 per month, thus awarding over $3,000 for the three months' wages, and for the expenses home of the officers and crew. We do not desire in any way to be understood as restricting the damages which they claim in behalf of the officers and crews of the vessels destroyed by the Alabama and other cruisers, either to the limits of length of time or of wages per month as given by Sir Edward Thornton. But we have referred to his opinion principally as evidence that such claims are "justly due." It will be for this Tribunal, taking into its consideration the distant places in which many of the vessels of the United States were burned, to determine what reasonable estimates shall be made of the damages caused to the officers and sailors. The Counsel desire here to call the attention of the Tribunal to the revised List of Claims which was filed with the Counter Case of the United States, from an examination of which it will appear that the amount of the claims filed for injuries from the captures made by the several cruisers has been considerably increased, and that the sum of such claims without interest was $19,739,094.81. II. ARGUMENT OR SUMMARY SHOWING THE POINTS AND REFERRING TO THE BY THE GOVERNMENT OF HER BRITANNIC MAJESTY IN ANSWER TO THE CLAIMS OF THE UNITED STATES: PRESENTED TO THE TRIBUNAL OF ARBITRATION CONSTITUTED UNDER ARTICLE I OF THE TREATY CONCLUDED AT WASH- BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. 17 C |