NOTE D.-CONSIDERATION OF THE CLAIMS ARISING IN THE DESTRUCTION OF VESSELS AND PROPERTY BY THE SEVERAL CRUISERS.

ments have been presented.

The United States presented to this Tribunal, on the 15th of December last, a detailed printed statement of all the claims for the destruction of vessels Detailed state and property by the several cruisers that had, down to that date, come to their knowledge in time to be so presented. The United States then declared that this statement showed the cruisers which did the injury, the vessels destroyed, the several claimants for the vessel and for the cargo, the amount insured upon each, and all the other facts necessary to enable this Tribunal to reach a conclusion as to the amount of the injury committed by the cruiser; and further, that it showed the nature and character of the proof placed in the hands of the United States by the sufferers.

In accordance with its right, the United States again, on the 15th day of April last, presented to this Tribunal a revised statement of claims containing those mentioned in the previous statement, as well as others which had been received by the Government of the United States subsequent to the printing of the previous statement and prior to the 22d of March, 1872, at which time it was necessary to conclude the printing of the revised list in order that it might reach Geneva in season for presentation with the Counter Case of the United States. (See Revised List of Claims, p. 335.)

With the evidence These claims do not appear as claims audited by the United States, furnished by the but in the form and supported by the evidence in which the claimants have presented them to the Government of the United States.

claimants to support them.

In his Annual Message in December, 1870, President Grant recommended that Congress should authorize the appointment of a Commission to take proof of the amounts and the ownership of these several claims on notice to the representative of Her Majesty at Washington; and also that authority should be given for the settlement of these claims by the United States, so that the Government might have the ownership of the private claims as well as the responsible control of all demands against Great Britain. A Bill had been introduced into Congress for carrying out this recommendation of the President, when the negotiation and ratification of the Treaty under which this Tribunal is now assembled, prevented the proposed legislation. Otherwise these claims might now have existed as so many millions of dollars which the United States had paid to its citizens for injuries which it believed to have been inflicted upon them by Great Britain.

Recognizing the situation in which these and other claims of the United States existed, the Treaty provided that under certain conditions this Tribunal might "proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it ;" and further, that in case the Tribunal "should not award a sum in gross," then that "a board of assessors" should be appointed to ascertain and determine what claims are valid, and what amount or amounts should be paid by Great Britain to the United States on account thereof, under the decision of this Tribunal. The United States, however, for reasons stated in its Case, (p. 480,) earnestly exThe United States pressed the hope that the Tribunal would exercise the power conferred desire an award of a upon it to award a sum in gross to be paid by Great Britain to the sum in gross on the United States, believing that it would be unjust to impose further delay evidence presented. and the expense of presenting claims to another tribunal, if the evidence which the United States has the honor to present for the consideration of these Arbitrators shall prove to be sufficient to enable them to determine what sum in gross would be a just compensation to the United States for all the injuries and losses of which it complains. In the opinion of the United States, the evidence presented does furnish all the facts necessary to enable the Tribunal to reach such a conclusion. The United States has not, however, thought it necessary to print all the memorials and documents presented by the several claimants, and referred to in the two lists of claims; nor, in the absence of any expressed desire on the part of this Tribunal, has it produced, as it offered to do, if desired, the original evidence.

Her Majesty's Government has, in vol. vii of the Appendix, presented with the Counter Case a report of a committee of two persons, Messrs. Cohen and Young, appointed by the Board of Trade to investigate the claims presented on behalf of the United States Government.

British criticisms

on this evidence.

This committee felt it to be its duty to sift and analyze these claims, to state the amounts which, in its opinion, should be considered to constitute a fair and proper

compensation for the losses in respect to which these claims are put forward, and to explain the reasons upon which its conclusions were founded.

Their report is said to cover all the claims contained in the printed list, exclusive of the claims for interest and the claims relating to increased war premiums. And in the British Counter Case (p. 134) it is stated that "a reference to this report will convince the Arbitrators that no reliance can be placed on the estimates presented of alleged private losses, and that were the Tribunal to hold Great Britain liable in respect to any one or more of the enumerated cruisers, and to decide on awarding a gross sum for compensation, these estimates could not safely be accepted as furnishing even a primafacie basis for the computation of such a gross sum."

The Government of the United States, on the other hand, holds that the statement of claims presents all the facts necessary to enable the Tribunal to reach

The answer to

a conclusion as to the amount of injury committed by each cruiser, not these criticisma with that exactness which would be necessary if the Tribunal were asked to assess the damages caused to each claimant, but with sufficient exactness to enable the Tribunal "to award a sum in gross to be paid by Great Britain to the United States for all the claims."

The United States cannot recognize the report of Messrs. Cohen and Young as any basis for the estimate or computation of indemnity by this Tribunal. To that committee as a Board of Assessors the United States have not referred these claims, neither has this Tribunal sought the report of those gentlemen as the opinion of experts.

The Counsel of the United States will, however, call the attention of this Tribunal to some of the general characteristics of these claims as they appear in the lists of claims, and at the same time will note certain comments made thereon by Messrs. Cohen and Young.

The claims now under discussion (excluding those for increased war premiums) may be divided into two general classes:

1. Claims for the alleged value of property destroyed by the several cruisers.

2. Claims arising from damages in the destruction of property, but over and above its value.

Under the first class would be included, (a) owners' claims for the values of goods destroyed; (b) merchants' claims for the values of goods destroyed; (c) whalers and fishermen's claims for the values of oil or fish destroyed; (d) passengers, officers, and sailors' claims for the values of personal property destroyed; (e) the claims of insurance companies, for the values of property destroyed for which they had paid the owners the insurance.

Under the second class of claims would be included, (a) owners' claims for the loss of charter-parties, freights, &c. ; (b) merchants' claims for the loss of expected profits on goods; (c) whalers and fishermen's claims for the prospective catch of oil or fish; (d) passengers' claims for various injuries other than in the loss of baggage; (e) officers' and sailors' claims for wages and expenses until their arrival home.

As to this first general class of claims, the Counsel believe that the Tribunal will find that they are fairly stated by the claimants. It was possible, doubtless, for Messrs. Cohen and Young to find therein some claims which seemed to them to have been exaggerated; but certainly as to the value of property this Tribunal must regard the sworn valuation of men who owned the property destroyed, and who made their estimates at or about the time of its destruction, rather than the estimates of Messrs. Cohen and Young, who have no knowledge of the property destroyed, except that the claimants say it was of a certain value.

The owners of vessels have generally sought to establish their claims by a sworn memorial setting forth the facts, describing the vessel, and stating her value. In some instances they have presented the certificate of underwriters or ship-builders in support of their statement. An examination of their several claims will show that the owners have by no means given such values to their vessels as would show them to have been of an equal value per ton. But this is no evidence of exaggerated value, as Messrs. Cohen and Young would seem to imply, but, rather, being correspondent with the fact, namely, that the vessels are not of equal value per ton, indicates that the owners have placed a fair valuation upon their property.

Injustice of the

sels destroyed.

Messrs. Cohen and Young have made some investigations from which they have concluded that the price of $40 per ton is a liberal estimate of the average market price of the merchant vessels destroyed by the Alabama and other British estimate of cruisers, and it may be well to notice how they arrived at this conclu- the value of the vession; for it will then appear how little value can be put upon the same. They say, vol. vii, Appendix, British Case, p. 22, "We have been at some pains to ascertain the average price per ton which was realized, shortly before the time of the captures, in the ports of Liverpool and London by a sale of a very large number of vessels belonging to the United States, and it seems to us to be a fair inference from the fact of these sales being effected in England, that the prices obtained here did not fall short of the market value in America."

The Counsel maintain that no average price or no conclusion could be more unjust

Prices obtained under forced sales no criterion.

than this. The fact being that British-built cruisers were destroying every United States vessel they could find, led some United States citizens to sell their ships to Englishmen, who could fly over them a flag that would save them from this destruction. Under these circumstances, it has probably been possible for Messrs. Cohen and Young to find at Liverpool and London the record of the terms of transfer of many ships of the United States to British subjects. But if this Tribunal shall find that Great Britain has, by any act or omis sion, failed to fulfill any of the duties set forth in the three rules, or recognized by the principles of international law, not inconsistent with such rules, and shall certify such fact as to the Alabama and each of the other cruisers, certainly it will not then proceed to award that Great Britain shall pay for those vessels which the Alabama destroyed at the low rate at which Englishmen were enabled to buy other vessels of the United States, which were sacrificed rather than to run the risk of their capture by the same cruisers. And further, the value to a citizen of the United States of a ship in London, under the British flag, is not the same as her value to him under the flag of the United States.

By the laws of the United States, certain privileges are given to vessels built in the United States and owned by citizens of the United States, and practically no vessel can carry the flag of the United States unless it was built in the United States. The object of this law is to encourage ship-building in the United States, and the effect of it is to make ships built in the United States more valuable to citizens of the United States than similar ships built out of the United States would be to citizens of the United States, or than the same ships would be to any persons not citizens of the United States. Therefore, the price at which a United States ship can be sold in Great Britain is by no means the representative of her value to a citizen of the United States, for the United States citizen, while he owns her, is able to employ her in certain trade and commerce in which the British subject cannot employ her. Consequently, but few United States vessels have ever been sold in England, except when the Alabama and her consorts were burning all vessels that carried the flag of the United States, Certainly those United States citizens who lost their vessels by the Alabama must not be paid for them at the rate at which other citizens of the United States sacrificed their property through fear of the same danger. The fact that a large number of vessels were transferred to the British flag, though it has destroyed the commerce of the United States, may have saved Great Britain from the liability of paying for the absolute destruction of the vessels transferred. But it cannot, in justice, be held to present a standard of value for others, not sacrificed through fear of burning, but actually burned.

The owners have estimated the round value of their property as vessels of the United States to citizens of the United States, and at that rate it must be estimated in the award of any gross sum.

Whaling and fishing vessels.

What has been said in regard to the estimate put upon the merchant vessels by Messrs. Cohen and Young will also apply to their estimate put upon the whaling and fishing vessels. They say, page is: "The inquiries that we have instituted convince us that an average rate of $100 per ton will amply represent the value of the whalers," and the context shows that this estimate includes the outfit also.

From page 17 of their report it appears that the average rate of the claims for outfits, (32 in number,) which are made distinctly and separately from the claims for the value of the vessel, is at the rate of $88 per ton.

The Counsel ask the Tribunal to assume that these claims for outfits are strictly correct. The owners of each vessel keep a separate and accurate account of all the expenses in outfitting each vessel, and when they made their claim for the loss of a vessel and her outfits, as far as the claim for outfits was concerned, they simply copied from their books the statement there contained for moneys expended in her outfits, and by which they can establish the claim for the same if ever they are called upon to

do so.

Taking, then, this statement of outfits as correct and true, the estimate of Messrs. Cohen and Young leaves only $12 per ton as the average value they would place upou the whaling vessels, which value is by their own estimate only about one-quarter of the price at which vessels of the United States were sacrificed in England, and a much smaller proportion of what the same vessels were worth to citizens of the United States, provided they could have carried the flag of the United States free from the danger of being destroyed by the Alabama and other British-built cruisers.

In this connection, and as contrasted with the estimates of Messrs. Cohen and Young Letter of Mr. Crapo. the Counsel refer to the following contract of a letter from Mr. Wm. W. Crapo, a very intelligent and respectable gentleman, under whose direction most of the claims for the destruction of the whaling vessels were prepared. (See his letter to the Secretary of State, vol. vii, U. S Doc., p. 103.)

He says:

As the attorney for numerous claimants, I have prepared and forwarded to the

State Department of the United States memorials and claims, setting forth the destruction, by Confederate cruisers, of a large number of ships and their cargoes, owned by merchants by New Bedford and its vicinity, and praying for suitable compensation for the loss of their property and the damages resulting therefrom. The claims thus prepared and forwarded represent nearly forty ships in number, with their whaling outfits and cargoes. The aggregate amount claimed by these persons for property destroyed is very large, and I beg leave to state the mode adopted in fixing values and estimating damages. Many of the ships, especially those burned by the Alabama, had but recently sailed from their home ports when destroyed. The values claimed for ship and outfits in such cases were based upon the actual cost and present worth of the property, as can be abundantly and conclusively proved when the occasion requires. "The large number of whale-ships, for which claims have been presented by me, were destroyed by the Shenandoah in the Arctic Ocean. In computing the damage sustained by this destruction, prices were placed upon each vessel and its outfit which represented their value as they were in that distant ocean, and at a sum less than the cost of replacing them. The more valuable ships, with their outfits, were estimated as worth $60,000 each. This was the sum at which they were insured, in cases where insurance had been effected. This sum was less than the actual cost to the owners in replacing them at the home port, by vessels and outfits of equal quality. An appraisal of the several vessels by ship-builders and ship-brokers, and the vouchers for purchased outfits, will confirm the justness of the valuations made by the claimants."

In view of this letter of Mr. Crapo the Counsel maintain that this Tribunal ought not to make any diminution in the value placed upon these vessels and their outfits by the owners thereof.

Property destroyed.

The second division of claims under what has been called the first class, is the claims of merchants for the values of goods destroyed. An examination of the list of claims will show that these claims are generally proven by the sworn memorial of the merchant, setting forth that he owned them, that they were on board the vessel destroyed, and that they were of a certain value, which memorial is accompanied by the bill of lading and invoice, the one confirming the statement that they were on board the vessel, and the other the statement that they were of a certain value.

How proved.

Though some few of these claim may have been increased by including in them the expected profits on the goods and the insurance on the same, as well as on the profits, (of the right to include which profits and insurance in all the claims, mention will be hereafter made,) yet we are confident that the true value of the goods represented in this class of claims is the price named in the claims; the claimants have made their claims expecting at some time to be called upon to prove the value of the property destroyed, by the production of the invoices which will show the prices paid for them. We cannot, therefore, in any way admit that Messrs. Cohen and Young are right in stating that they are confident that they are considerably overestimating the value of the goods at the port of shipment, by assuming such value, together with the interest up to the time of capture, to be only 12 per cent. less than the aggregate amount claimed in respect to the cargoes. (See vol. vii, British Appendix, pp. 25, 28.)

Oil or fish de

Another division of claims under the first class embraces the claims of the owners of whaling and fishing vessels for the value of oil or fish on board, and destroyed at the time of their capture. These claims Messrs. Cohen and stroyed on whalers Young propose to estimate very easily by ignoring all claims made by and fishing vessels. the owners for secured earnings, and by allowing interest at the rate of 25 per cent. per annum on the value of the ship and outfit, and in addition 5 per cent. per ton per day to meet expenditures on account of wages and other disbursements. Such an easy calculation as this enables them to decide that the secured earnings of the forty-one whale-ships destroyed by the several cruisers, together with the wages of the officers and crews, and all other disbursements, amounted to but $301,759. Taken as a sample of other estimates made by Messrs. Cohen and Young after "careful consideration," (p. 18,) it may be well to examine this estimate a little more closely. Their estimate in round numbers is that the forty-one whalers, down to the time of their capture, had earned for their owners, their officers and crews, the sum of $301,759. The officers and crews of these whaling vessels, on an average, consist of at least twenty-five persons, and there were on board these forty-one whalers more than a thousand persons, captains, officers, and sailors, whose earnings and expenses in this most hazardous, but at that time most lucrative employment, are estimated at one-quarter of $301,759, (see p. 18 of report of Messrs. Cohen and Young,) or at about $75,000, which divided proportionately would give to each man not more than $75. When it is remembered that very few of these men had been away from home for less than six months, and that many of them had been away for two and three years, it is easy to see that the estimates made would not cover their expenses, much less their earnings.

Under these circumstances, knowing well the large profits that our hardy seamen have made in whaling voyages, we must earnestly protest against their claims for

actual earnings being so reduced, and farther on we shall again call the attention of this Tribunal to the claims of officers and sailors.

The proposal to substitute the estimate of Messrs. Cohen and Young seems by no means necessary or just in view of the facts, as stated by Mr. Crapo.

He says, (U. S. Doc., vol. vii, p. 104,) "Oil and bone on board, and destroyed with the ships, have been made the subject of claim. The quantity has been stated upon the sworn evidence of the masters and officers of the respective vessels, and the value has been ascertained by the current market quotations at the time when said oil and bone would, if not destroyed, have found a market and sale."

We are confident that enough has been stated to convince the Tribunal that the sworn statement of the masters and officers must be taken as better evidence of what was on board the whale-ships destroyed by the Alabama and Shenandoah than the socalled estimate of Messrs. Cohen and Young, who would make it appear that they have been able to arrive at the percentage which that oil and bone bear to the value of the vessels and outfits as again estimated by Messrs. Cohen and Young, and under these circumstances the attention of the Tribunal is particularly directed to the fact that this percentage is made to apply by Messrs. Cohen and Young, not to the whole length of the voyage of the several whalers, but in many instances only from the date when the ship sailed from Honolulu or some other port at which it had last touched. In regard to the claims of passengers, officers, and sailors for the values of personal property destroyed, Messrs. Cohen and Young estimate it at the rate of Personal effects. $5 per ton on the vessels captured by the Shenandoah, (see p. 17, Brit. App., vol. vii,) and at the rate of $3 per ton on some of the vessels captured by the other cruisers, (see pp. 17, 28, Brit. App., vol. vii,) and on other individual vessels they have chosen to make certain deductions, as to them seemed best.

Messrs. Cohen and Young state as a fact that the claims for personal effects, &c., on board vessels destroyed by the Shenandoah are made at the average rate of $8 per ton. Thinking this to be excessive, they give their opinion that if the loss of personal ef fects in the case of the Shenandoah "be estimated at the average rate of $5 per ton of the captured vessel, adequate compensation will be provided, especially as it appears from Captain Semmes's journal, and other sources of information, that in many cases the masters and crews had ample opportunity of saving a considerable part of their property." Messrs. Cohen and Young may have found the above statement to be satisfactory to themselves; but we do not expect that this Tribunal will find in the journal of Captain Semmes, who probably never even saw the Shenandoah, any evidence as to the value of the personal effects of the passengers, officers, and crew of the vessels burned by that cruiser.

Possibly some of the claims of this class may be exaggerated. But, on the other hand, a large quantity of personal property was destroyed on board these vessels, which, though small in the amount belonging to each individual, was large in the sum total, and for which no claim has yet been made. And further, as to some of the claims made for personal property on board the whaling vessels destroyed by the Shenandoah, the officers and captains had with them articles of various kinds, and of considerable value, for the purpose of trading with the natives; and it is for such kind of property that we understand that the claims of the master and two of the crew of the Abigail were made, as also the claim of the master and mate of the Gipsey.

If the estimates of Messrs. Cohen and Young cannot be depended upon when made as an average, still less can they be when an attempt is made to estimate particular claims. (See p. 25, Brit. App., vol. vii.) Remembering that Messrs. Cohen and Young have no other knowledge of the claimants, or of what property they have lost, than can be obtained from the list of claims, we are at a loss to know why these gentlemen should decide that the claims of the captains of the Brilliant and C. Hill should be made to be equal to each other, or why the claim of the chief officer of the Express seems to be excessive, or why any of the other deductions proposed should be made, unless, as in the case of the Alina, the value of the personal effects of the captain seems by them to have been considered as having some ratio to the tonnage of the vessel. The claim of insurance companies for the value of property destroyed, for which they have paid the owners the insurance, is the last division under the claims of the first class.

Claims of insur

ance companies.

We readily

No double claims

admit that, whenever the owner puts forward a claim for his loss at the same time that the insurance company also claims the money paid by supported by the them in respect of the same loss, then only one value of the property deUnited States. stroyed can be allowed; but we insist that, in all such cases, the award should be equal to the full value of the property destroyed.

It was the intention of the United States, in preparing the list of claims, to indicate whenever double claims of this class occurred, when it was evident, upon a simple examination of the papers, that such double claims were made, and it will be found that very few, if any, of such claims exist, except in the case of some of the whaling vessels which were destroyed by the Shenandoah, there being none of this class of double claims in the case of merchant ships, or property destroyed on merchant ships.