Herrera v. United States

delivered the opinion of the court.

Petition in the Court of Claims for the recovery of $88,200 for the value of the use and profits of which claimants were deprived, as it is alleged, by the taking and detention of a certain steamship by the United States during the war with Spain, and for the loss of certain property belonging to and a part of such steamship alleged to be “fairly worth” the sum of $5,000, amounting in all to the sum of $93,200.

Claimants base their right to recover upon an impiied contract arising from the facts which we shall presently detail. Opposing this view, the Government contends that the property was enemy property seized for military uses and. that, besides, the record does not show a “convention between the parties” or circumstances from which a.con tract could be implied, and that therefore the case one sounding in tort and claimants have no right of recovery.

The court found as a conclusion of law from the facts, “on the authority of the case of Hijo v. United States, 194 U. S. 315 , that the claim herein is one arising from the capture and use of a vessel as an act of war, and the court is therefore without jurisdiction, and the petition is dismissed.”

The claimants, at the time the steamship was taken, composed a commercial partnership, doing business under the firm name of Herrera Nephews. They were born in Spain, and, under • the Spanish régime in Cuba, were Spanish subjects residing in Havana. After the treaty they did not, in accordance with its terms, preserve, their allegiance to Spain.

' On the sixteenth day of July, 1898, the Spanish forces then occupying the territory constituting the division of Santiago, including the city and port of that name, capitu

The United States military authorities seized and captured the steamer San Juan on the seventeenth of July, 1898, she having been held in the harbor by its blockade by the United States naval authorities. Prior to that date she had been used to transport Spanish troops, munitions of war and supplies for the Spanish troops from place to place. After her capture she was -used for like service for American troops and indigent Cubans Until November, 1898, a period of 1Í5 days.. The reasonable value of her usé was $150 per day, amounting to the sum of $17,250, no part of which has been paid to claimants.

After the surrender of Santiago and the seizure of the steamship, thé Secretary of War, on July 18, 1898, in. pursuance of the proclamation of the President of July 13, 1898, issued General Order No. 101, which, among other things, provided that “Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as' telegraph lines and cables, railways and boats, may, although they belong to private individuals or corporations, be seized by the military occupant,' but unless destroyed under military necessity, are not to be retained.

“Private property taken tor tne use of the Army is to be paid for, when possible, in cash, at a fair valuation, and when payment in cash is not possible receipts are to be given.”

This ordér was promulgated in Cuba, July 20, 1898.

On November 8, 1898, the Quartermaster-General of the Army telegraphed to R. A.

On April 25, 1899, the Quartermaster at Santiago, on instructions from the War Department, wrote claimants’ agent that if they did not receive the steamer “in accordance with the conditions hereinafter expressed,” she would be delivered to the Department of the Quartermaster of the Army and retained as property of the United States.

On the seventeenth claimants accepted her and gave . the following receipt:

“Received this 17th day of May, 1899, at Santiago, Cuba, from Maj. John’T. Knight, quartermaster, U. S. Army, chief quartermaster Department of Santiago, the steamship San Juan, which vessel is accepted with the full knowledge and understanding that the Secretary of War does not consider that any allowance is due the owners on account of the use of the vessel, she being captured property, or for any damages sustained while the vessel has been in possession of the United States Government, the return of the vessel being a generous act on the part of the United States Government, and that any claim subse

“And we name and authorize our agents in Santiago de Cuba — Messrs. Gallego, Mesa & Co., of said city— to receive and talcé possession of said steamship San Juan.”

They also executed a paper which recited that it was given in consideration of the prompt return of the vessel to claimants, and that released the Government and its officers and agefits “from all manner of actions, damages, claims and demands whatsoever” on account of her seizure, detention and use.

From the time that the Quartermaster-General of the Army proposed to return the vessel until May 17,1899, a period of *190 days, the vessel, though retained by the United States, was not used. During said period the United States kept a watchman on board, who was paid $45 per month. The compensation claimants are entitled to, if any, for such period, taking into account that the vessel was not used, Would be $125 per day, or $23,750.

Upon the return of the vessel to claimants, tools and implements of the value of $232.50 were missing, but it is not shown by whom they were taken. h£o other property is shown to have been taken possession of by the United States. The steamer, when returned, appeared.to have been in as good condition as when taken into possession, ordinary wear and tear excepted.

As we have seen, the Court of Claims rested its decision on the case of Hijo v. United States, 194 U. S. 315 , and that case also is the main reliance of the Government’s argument. Claimants, however, contend that the Hijo Case is distinguishable from that at bar.

The action there was brought to recover the value of the use of a vessel belonging to Spanish subjects and taken by the United States in the port of Ponce, Porto Rico, when that city was captured by'the United States army and

The Court of Claims dismissed the petition on the ground that the vessel was properly seized as enemy property and its use was by the war power for war purposes, This court sustained the judgment and the principles upon which it was based.

A question of jurisdiction became prominent in the case. The action was brought in the District Court of Porto Rico, and the court could only have had jurisdiction under the Tucker Act, so called, which provides for the bringing of suits against the United States. March 3, 1887, 24 Stat; 505, c. 359. In other words, as expressed in the act, omitting grounds of action with which the case was not concerned, that court was given jurisdiction of suits “upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort. ’ ’ Considering whether the action was of that nature, this court said that there was no element of contract in the case, for nothing was done or said by the officers of the United States from which could be implied an agreement or obligation to pay for the use of the vessel; and declared, further, that according to

It was also decided that the claim of the plaintiff in the action was embraced in the stipulation in the treaty of peace betweén Spain and the United States, by which they “mutually relinquish all claims for indemnity, national and individual-, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late-insurrection in Cuba and prior to-the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. .. .. .” That effect, it was declared, must be given to the treaty, even though the Tucker Act^, could have been construed to authorize the suit, upon the ground that each being equally the supreme law of the land, the last in date must prevail in the courts.

¡Before comparing that case with the case at bar we may take a glance at Juragua Iron Co. v. United States, 212 U. S. 297 , 306, where it was depided that, Cuba being “enemy’s country,” even “ftn American corporation doing business in Cuba was during the war with Spain, to be deemed an enemy to the United 'States with respect of its nropérty found and then used in that country, and such property could be regarded as enemy’s property, liable to

' The. action in that'case was in. the Court of Claims to recover from the United States the alleged value of certain property destrqyéd in Cuba during the warwith Spain, by order, of- the officer commanding the United States troops operating in the locality of the property, the purpose of the order being “to destroy all places of occupation or habitation which might contain fever germs.”. The buildings destroyed were 66 in number and were used in connection with mining operations and the manufacture of iron and steel products.

The 4estruction of the buildings was considered as an act of war and sustained as such. It was also decided, that, even on the supposition that such destruction was wrongful and unnecessary a tort was committed, and though ■ committed in the interest of the United States, there was no element of contract and the action was not one of which the. Court of Claims could “take cognizance, whatever-other redress was open to the plaintiff.”

We have, then, these propositions established V Cuba was enemy’s country, and all persons residing there pending the war, whether Spanish subjects or Americans, were to be deemed enemies of the United States, their property., enemy’s property and subject to seizure, confiscation and:destruction. It would seem necessarily to follow that the claimants in this case were enemies of the United States, and their property subject to the necessities of war. And this is but the application of the rule which declares that war makes of the citizens or subjects of one belligerent enemies of the government and of the citizens or subjects of the other. The Venice, 2 Wall. 258 , 274; White v. Burnley, 20 How. 235 , 249.

These consequences, it is insisted,' are averted in-the. case at bar by two important circumstances: that Santiago, unlike Porto Rico, was not captured but capitulated,

The Ouachita Cotton, 6 Wall. 521 , does not change the ruling in The Venice from an expression of the special policy of the Government indicated by its legislation to a declaration of law necessarily following from the military occdpation of even, enemy country. It was an obvious

The case of The Grapeshot, 9 Wall. 129 , 132, is also cited by claimants, and some of its language demands notice. The question involved was the legality of a provisiónal court for the State of Louisiana established by the President after New Orleans and parts of the*State had been occupied by the national troops. Expressing the purpose of the National Government the court said that it was “neither conquest nor subjugation, but the overthrow of the insurgent organization, the suppression of insurrection, and the reestablishment of legitimate authority.” It was further said that it was the duty of the Government, “wherever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the National forces, to provide as far as possible, so long as the war continued, for the security of persons and property, and for the administration of justice.” To this was added the following: “The duty of the National Government, in this respect, was no other than that which devolves upon the government of a regular belligerent occupying, during war, the territory of another belligerent. It was a military duty, to be performed by the President as commander-in-chief, and intrusted as such with the direction of the military force by which the occupation was held.

But it was not intended to express a limitation upon

If the record presented .such a case the question could be raised whether it presented one for judicial cognizance, even if a court could share the indignation which the learned commentator says ail mankind would feel. It is certain that the' eourt’s power cannot be enlarged by its emotions. Besides, we must regard the seizure of the San Juan as .an exertion of the war power, and by this we do not mean as mere “booty of war,” and the comments made in Planters’ Bank v. Union Bank, 16 Wall. 483 , 495, in regard to an attempt by the commander at' New Orleans, fifteen months after the occupation of the city by the National Government, to confiscate the indebtedness of one of the banks to the other, do not apply. We only mean that the seizure was for the immediate use' of the army, a right recognized in that case, for we do not accept the view contended for by claimants that with the surrender of Santiago and the cessation of active operations in the Santiago district, enemy propérty'lost such character and was not subject to such right of capture. The war

Judgment affirmed.