United States v. Steever

delivered the opinion of the court.

This is an appeal from a decree of the Court of Claims in favor of the appellee in a suit brought by him under the act of , August 8, 1882, ch. 480, to recover the amount necessary to make up his lawful share of the prize money awarded for the capture of the. rebel ram Albemarle. Thé facts of the case, as appearing in the findings and judgment of the Court of Claims, ■ are as follows:

The rebel iron-clad ram Albemarle was captured and sunk at Plymouth in the Roanoke River, in the State of North Carolina, on the night of October 27, 1864, by the United States Picket Launch No. 1, an armed torpedo launch propelled by

The Albemarle was afterwards raised by the United States forces, and appropriated to the use of the United States, and was twice appraised by duly appointed boards of naval officers; the first time, before she was so appropriated, at the sum of $79,944, which was forthwith deposited by the Secretary of the Navy with the Assistant Treasurer of the United States at Washington; and the second time, under the act of April 1, 1872, ch. 76, 17 Stat. 649 , at the sum of $282,856.90, which, less the sum already deposited, was likewise so deposited, pursuant to the act of January 8, 1873, ch. 18, 17 Stat. 405 .

Upon successive prize proceedings in 1865 and 1873, in the District Court of the United States for the District of Columbia, the Albemarle was condemned as prize of war, and it was adjudged and decreed that she was of superior force to the launch, and that her appraised valúe, deducting costs, and amounting to $273,135.09, be paid to the captors as follows: One twentieth part to the admiral commanding the squadron at the time of the capture,, one hundredth part to the fleet captain, and one fiftieth part to the officer commanding the division to which the launch was attached, and the remainder distributed to the other persons doing duty on board the launch, in proportion to their respective rates of pay' in the service. In all the prize proceedings, there was no appearance by or in behalf of any of .the captors except Cushing.

Before either of those decrees was made, three of the -officers of the launch were promoted: Lieutenant Cushing, in February, 1865, to the rank of lieutenant commander; and Acting Master’s Mates William L. Howarth and Thomas S. (Lay, in

The money so ordered to be distributed amounted, after deducting' the shares paid to the-commander of the squadron, the; fleet captain and the division commander, to the sum of $251,284.29, which was distributed by the officers of the- Treasury Department among all the officers and crew of the launch, or their legal representatives, in proportion to the respective rates of. pay to which they were by law. entitled on the day of the capture, except that Cushing, Howarth and Gay were, by order of the Secretary of the Navy, paid in proportion to the rates of pay of the grades to which, after the capture, they had been promoted as aforesaid.

By the act of August 8, 1882, ch. 480, Congress referred the claims of the cáptórs of the Albemarle to the Court of Claims, “ with jurisdiction and authority to hear and determine the same, and all defences thereto which are or may be open’ to the United States, and to render judgment thereon, with the right of appeal as in other cases ; ” and if the court should find that any of the captors had not received their full and just share of the prize money awarded for the capture of the Albemarle, according to the proportions provided in the prize laws in force, at the time of the capture, and that they were entitled"to claim and recover the same, then to render judgment in favor of them, or their legal representatives, for such sums as, added to the amount already paid, should make up their lawful shares; and provided that no suit should be brought under the provisions of this act after one year from the date of its passage; and that any judgment rendered by the Court of Claims should be paid by the Secretary of the Treasury out of any money in the treasury applicable to the payment of prize to captors, and, failing such fnoney, out of any money in the treasury not otherwise appropriated. 22 Stat. 738 .

’Within the time limited by this act, all the officers and men of the launch, or their legal representatives, except Cushing, Howarth and Gay, brought suits under it in the Court of Claims, which held that, according to the prize laws in force at the time

The name, rank and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize proceedings, the amount which each should have received in the opinion of the Court of Claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:

The present suit is brought- under the act of August 8, 1882, ch. 480, by one of the subordinate officers of the launch who had not been promoted since the capture of the Albemarle. The question whether he has heretofore received less than his

The prize court held that Cushing was entitled to share according to rate of pay with'the other officers and men on board the launch. The Court of Claims held that he was entitled to one tenth of the prize money as commander of a single ship. The question which of thesé' views was correct depends upon the rules laid down in section 10 of the prize act of June 30, 1864, ch. 1J4; 13 Stat. 306 . '

By those rules, all commanding officers have certain fractional parts of the prize money; and none of them have, or can elect to take, a share proportioned to their pay. By rule 4, there is to be paid “ to the commander of a single ship one tenth part of all the prize money awarded .to the ship under his command, if such ship at the time of the capture was under the command of the commanding officer of a -fleet or squadron, or a division, and three twentieths if his ship was acting independently of such superior officer.” By rule 2, to the commanding officer of a division is to be paid one fiftieth part of any prize' money awarded to a vessel of his division, unless he elects to receive instead the share due to him as commander of a single ship making or assisting in.a capture, that is to say, one tenth. And by rule 1, the commanding officer of a fleet or squadron receives in all cases one twentieth of all prize money awarded to vessels under his immediate command. .So, by rule 3, the fleet captain receives one hundredth part of prize money awarded to vessels of the fleet or squadron in which he is serving, with the single exhéption that when the capture is made by the vessel on board of which. he is serving, he shares, in proportion to his pay, with the other officers and men on board. It is only “ after the foregoing deductions,” that rule 5 directs that “ the residue shall be distributed and proportioned among all others doing duty on board (including the fleet captain), and borne upon the books of the ship, in proportion to their respective rates of pay in the service.” 13 Stat. 309 , 310.

But whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming • within their terms, and are the only guides of all courts and officers charged with the duty of administering the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying disabled in his berth; and the share of the admiral commanding the squadron is not increased if the capture is made by his flagship, nor diminished if is made without his participation or knowledge by another ship belonging to his command; Lumley v. Sutton, 8 T. R. 224, 229; Pigot v. White, 4 Doug. 302 ; S. C. 1 H. Bl. 265 note; Dr. Lushington, in The Banda & Kirwee Booty, L. R. 1 Adm. & Eccl. 109, 250; Decatur v. Chew, 1 Gallison, 506; 11 Opinions of Attorneys General, 9, 94. The courts cannot depart from the express law, because of the peculiar bravery or merit of the captors, or any of them, in a particular case. The Atlanta, 3 Wall. 425 , 433; Porter v. United States, 106 U. S. 607 , 611; The Joseph, 1 Gallison, 545, 561; The Anglia, Blatchf. Prize Cas. 566.

We can have no doubt that the launch which took the Albemarle was “a single ship,” within the meaning of the rules of distribution in the prize act of 1864.

In those rules, the words “single ship” are used in contradistinction to the words “vessel or vessels,” which include more than one; and upon a view of the whole act, it is manifest that the word “ ship,”- in the few instances in which it occurs, has no restricted sense, implying three square-rigged masts, or any masts at all, but is synonymous with the general

Nor is it material that there was no affirmative proof that the launch had any books. The keeping of books is not made a condition of the right of any vessel to share in prize money. The- books of a ship are but the usual evidence of service on board'; and neither the omission to keep books, nor the neglect of the propér officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such duty, from participation in prize money awarded to the ship. It is found as a fact that Lieutenant Cushing had been detailed by the proper authorities from the ship which he had previously commanded; -and as to the other officers and men, the doing duty on board is sufficient prima facie evidence, at least, that they belonged to the. launch, and were entitled to share in- the prize money. In Wemys v. Linzee, 1 Doug. 324 , cited for the United States, the captain of marines, who was denied an officer’s share, was no p'art of the complement of the ship. See Mackenzie v. Maylor, 4 Doug. 3 .

The launch being a single ship, within the meaning of the prize act, her commander, as well as her other officers and her crew, was entitled to prize money according to the fourth and fifth rules of distribution therein prescribed.

The prize court therefore erred in awarding to her commander, instead of his one-tenth of the prize money, a share proportioned to his rate of pay.

Another error occurred in the distribution of the prize money, by order of the Secretary of the Navy, to Cushing, Howarth and Gay, according to the rates of pay of the grades to which they had been promoted since the capture. Although prize money is, strictly speaking, a matter of bounty and not of

For these reasons, this court concurs in the conclusions of the Court of Claims as to the shares of prize money which the officers and crew of' the launch were entitled to receive under the prize laws in force at the time of the capture. The inequitable operation of those laws, as applied to a capture by a vessel having so small a number of officers and men as this launch, by which the leader of the enterprise obtains legs prize money than a paymaster or an engineer under his command, is a. matter for the consideration of Congress, and not of the courts.

The report of the Committee on Naval Affairs of the House of Representatives, accompanying the bill which was after-wards passed as the act of August 8, 1882, ch. 480, referred, among other things, to the following documents: The decrees of the prize court in the case of the Albemarle. The orders of the Secretary of the Navy for the distribution of the prize money. The opinion of Attorney General Reverdy Johnson,

It is evident, therefore, that the act of 1882 was passed with a knowledge of the manner in which the prize money for the capture of the Albemarle has been distributed by the Secretary of the Navy under the decrees' of the prize court; and the reasonable inference is that Congress intended, without impeaching the validity of the distribution so made, or affecting the fight of any captor to hold the money already paid him, but treating each as having received no more than a suitable reward for his gallantry, to allow out of the Treasury, to those of the captors who had received less than their lawful share according to the rules of the prize act, enough to ipake up the deficiency. The joint effect of the act of 1882 and the previous distribution is the same as if the prize money had been distributed in conformity with those rules, and Congress had afterwards granted to Cushing, Howarth and Gay, out of money in the Treasury, sums in addition to their lawful shares of prize money, as was done in the case of Captain Pgrry for captures on Lake Erie in the "War of 1812. Act of April 18, 1814, ch. 70 ; 3 Stat. 130 .

It is therefore unnecessary to express an opinion upon the question argued by counsel, whether, under the act of 1864,