clearing out of its ports to trade with the enemy—a claim which it was in at least some cases sought to enforce by exacting a bond that the vessel would not go to an enemy's port or trade with the enemy. The claimants contended that this was not a valid ground of condemnation. # # “If,” said the memorial in question, "the principle is established that neutrals may traffic with belligerents, those that may have entered the ports of either can not by any regulations of the port, in which they may chance to be, be deprived of that right In the case of the Esther, she has only resorted to an artifice to effect a legal purpose. By the laws in force in the ports of Peru, she could not clear directly for the ports in Spain; therefore, in conformity with the laws of Peru, she clears for some other destination-a thing of every day's practice among all nations—and then proceeds to one of the ports of the enemy, which she had an undoubted right to do, and which right no laws of Peru could take away from her." The second ground alleged for the condemnation of the ship was that she carried a passenger from Chiloe and landed him at one of the intermediate ports between Chiloe and Lima, and that this passenger was a spy with dispatches for the Spanish forces. The claimants submitted depositions to show that the passenger in question was a grocer at Chiloe; that he paid but a small sum for his passage; that he was represented to the captain as going on a mercantile voyage; and that he was "landed in open day by the ship's boat at the intermediate port of Rescadores, the ship lying to waiting the return of the boat, four leagues from the shore, so that had the port been blockaded the ship did not approach near enough to violate it." Among the papers presented by the claimants was a copy of the instructions of the owners to the master of the ship, showing their intention to have the voyage conducted in perfect good faith and to permit no violation of any law whatever. The owners made the following claim: 1. Value of the ship at the time of seizure.. 2. Amount of charter party to Smith and Tracy earned, but not paid in consequence of the seizure and condemnation, 4 mos. at $2,000 per month 3. Amount due for demurrage by the seizure of the ship from Jan. 1, 1823 to May 8, 1823, four months and seven days, at $2,000 per month. Primage at 5 per cent 4. Amount of disbursements after seizure 5. Amount of wages to crew $25,000.00 $8,000.00 8,400.00 $8, 466. 69 8,890.03 1,272. 12 842.65 6. Amount of loss of freight to the U. S. in consequence of seizure, being amount earned on former voyage from Valparaiso to Baltimore 7. Wages of master, while awaiting trial 15,000.00 496.33 The memorial, in further support of this position, said: "The fact of false clearance was never heard of as the cause of the condemnation of a ship It is well known that almost all the vessels from the United States, which proceed around the Horn, are cleared out for the northwest coast, although their actual destination is Valparaiso or Lima." 8. Master's board and other expenses from Dec. 28, 1822 to May 7, 9. Amount paid for Master's passage home.. Interest on the above at 6 per cent from May 7, 1823, to May 7th, 1841, 18 years.... Deduct amount received from Smith and Tracy $4,426.32 and interest at 6 per cent for 10 years 4 mos. and 3 days, $2,746.33. $500.00 250.00 63.75 60, 714. 88 65, 572. 07 126,286.95 7, 172. 65 119, 114. 30 The Attorney-General awarded the sum of $28,111.10, being the whole of items 1, 4, 5, 7, and 9, and one-half of item 8. In regard to the other items he said: "So much of the second item as relates to the amount of the charter party to Smith and Tracy, earned but not paid in consequence of the seizure, is rejected, it appearing that the owners sued Smith and Tracy and recovered from them, prior to the date of the convention. If any claim on this account is valid against this fund, it is clearly due to Smith and Tracy, or one of them, and not to these parties. The residue of said item for primage is also rejected, it appearing that this charge was compromised with the principal claim in the suit between the owners and Smith and Tracy. These parties having elected their remedy and adjusted their whole claim, it would be inequitable to allow them a pro rata share of this indemnity. The third item for demurrage after seizure of the ship is also rejected, it being inconsistent in principle with the claim already allowed these parties for the value of the ship. It was their unquestionable right to insist that the value of the vessel should be estimated according to its worth at the time it was seized; they were then divested of their property. It is not a satisfactory answer to this to say that the Peruvian Government has in this case confessed the injustice of the proceeding; if it were so the claim for demurrage might be extended indefinitely even to the date of the convention. The admission on their part only confirms the right to compensation to the extent of the loss sustained, but it cannot change the character or the legal effect of the judgment previously rendered. The charge for primage is rejected, as the principal sum is not admitted. The sixth item for loss of freight not earned falls clearly within the rule of speculative damages and is therefore inadmissible. No allowance can be made for prospective profits or speculative damages in any case. The tenth item for translating Spanish documents is rejected in pursuance of the rule adopted throughout, requiring the parties in all cases to furnish their own proof. The charge for interest is rejected for the reason assigned in the award in the case of the ship Providence. "NATHAN CLIFFORD, The cargo as well as the ship was condemned; and claims were allowed on account of the condemnation of the cargo, as follows: To Samuel F. Tracy, assignee of Henry D. Tracy, in his own right and as surviving partner of Stiphale & Smith, and also as assignee of Captain Low, and of Stephen B. Howe, supercargo, the sum of $19,654.39 was awarded, including items for the value of the cargo, for freight, and for advances and expenses of defending the property in Peru. These items were allowed on the basis of actual loss. An item for $10,000 for damages to mercantile credit, for the breaking up of commercial transactions, and 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 Tracy, and purchased of them by said Howe, on the 14th of September 1822. 2. The loss of the articles shipped by him on board said vessel on his own account at San Carlos, 4 December 1822.. 3. Commission on outward cargo sold by Howe at San Carlos, to wit, 5 per cent on $25,836.87 4. Commission on return cargo purchased by Howe at San Carlos, to wit, 2 per cent on $26,899.62. 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: "PERUVIAN COMMISSION. "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 varions 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." "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 beth Ann." 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; |