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, capitulated 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 representative 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.