Cosme Blanco Herrera v. United States

• Decision Date: 15 January 1912
• Docket Number: No. 89,89
• Citation: 56 L.Ed. 316,32 S.Ct. 179,222 U.S. 558
• Parties: COSME BLANCO HERRERA and Jose Blanco Herrera, Doing Business under the Firm Name of Herrera Nephews, Appts., v. UNITED STATES
• Court: U.S. Supreme Court

222 U.S. 558

32 S.Ct. 179

56 L.Ed. 316

COSME BLANCO HERRERA and Jose Blanco Herrera, Doing Business under the Firm Name of Herrera Nephews, Appts.,

v UNITED STATES.

No. 89.

Argued December 11 and 12, 1911.

Decided January 15, 1912.

Messrs. Howard Thayer Kingsbury, Crammond Kennedy, and Frank D. Pavey for appellants.

[Argument of Counsel from pages 559-562 intentionally omitted] Assistant Attorney General Thompson and Mr. Franklin W. Collins for appellee.

Mr. Justice McKenna 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 implied 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 contract could be implied, and that therefore the case is 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 J. Ribas y Hijo v. United States, 194 U. S. 315, 48 L. ed. 994, 24 Sup. Ct. Rep. 727, 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 regime 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 16th 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- lated to the United States in accordance with the terms of a military convention which provided that all hostilities between the American and the Spanish forces in that district should cease, and that the Spanish forces should be returned, at the expense of the United States, to Spain. Actual hostilities ceased with the surrender of Santiago.

The United States military authorities seized and captured the steamer San Juan on the 17th 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 115 days. The reasonable value of her use 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, the 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 for the 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 order was promulgated in Cuba, July 20, 1898.

On November 8, 1898, the Quartermaster General of the Army telegraphed to R. A. C. Smith, the representa- tive and attorney-in-fact of claimants, that it was proposed to return the 'captured steamer' to owners, and asked him to wire their names. Smith answered on the 12th 'that claimants agreed to accept the vessel, reserving their right to make claim.' On the 15th the War Department notified Smith that the government was ready to deliver the vessel to her owners upon condition that a receipt be given showing that she was accepted with full knowledge and understanding that the Secretary of War did not consider that any allowance was due the owners on account of her use, she being captured property, or for any damage sustained by her while she was in the possession of the United States, and that any claim subsequently quently made should be a matter for future consideration by the War Department. The terms were rejected, and she remained in the possession of the United States.

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 17th 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- quently sequently made for such use and damages shall be a matter for future consideration of the War Department.

'And we name and authorize our agents in Santiago de Cuba Messrs. Gallego, Mesa, & Company, of said city—to receive and take 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 agents '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. No 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 J. Ribas y Hijo v. United States, and that case also is the main reliance of the government's argument. Claimants, however, contend that the J. Ribas y 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 Navy on July 28, 1898. The vessel was used by the quartermaster until some time in April, 1899, when she was ordered to be returned to the owner, if all claims for damages for use or detention should be waived. The condition was refused, and the vessel was subsequently abandoned, and was wrecked in a hurricane. We quote the following from the statement of facts in the opinion: 'The vessel was never in naval custody nor condemned as prize. When seized it was a Spanish vessel, carried the Spanish flag, and its owner, captain, and crew were all Spanish subjects. It did not come within any of the declared exemptions from seizure set forth in the proclamation of the President of April 26, 1898. 30 Stat. at L. 1770. A claim filed in the War Department in February, 1900, for its use, was rejected.'

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. 24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 752. 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 established principles of...