
    THE METEOR CASE.
    R. B. Forbes et al. v. The United States.
    
      On the Proofs.
    
    
      The Meteor is seined by the Government, in the port of New York, for an alleged intent to violate the neutrality laws. She is libeled in the district court and condemned, but on appeal to the circuit the libel is dismissed. Congress refer a claim for her detention to this court “ for the allowance of the amount of damages actually sustained” “ by reason of such wrongful seizure,” with a proviso that the damages “shall only include detention, deterioration, and actual expenditures, but excluding all damages for loss of market or breaking up a voyage.” The owners bring suit and seek to recover demurrage.
    
    I. Demurrage is compensation for the delay of a ship in her employment or voyage. It is a, per-diem compensation, in lieu of earnings.
    II. Where a statute authorizes damages against the Government for the wrongful seizure of a vessel, but provides that the damages “shall only include detention, deterioration, and actual expenditures, but excluding all damages for loss of market or breaking up a voyage,” the owners cannot recover demurrage. The court will treat the vessel as so much capital, when allowing damages under the head of “detention,” instead of as a freight-earning vessel.
    
      The Reporters' statement of the case:
    The owners claim in their petition $188,822.16 for damages sustained by them by the seizure and detention in the port of New York of their ship Meteor by the United States, on u the charge that she was being fitted out to commit hostilities against the government of Spain, in violation of the neutrality laws of the United States.”
    The case was referred to this court by the “ Joint Iiesohction relative to the steamship Meteor,” February 17, 1871, which provided: “That' the memorial of Robert B. Forbes, John M. Forbes, W. H. Aspinwall, A. A. Low & Brothers, Leonard W. Jerome, E. B. Ward, M. H. Simpson, James Lawrence, H. S. Russell, and Theodore Lyman, executors; Richard S. Rodgers, J. G-. Cushing, W., B. Bacon, J. P. Bayley, James Davis, and J. F. Tuckerman, owners of the steamship Meteor, built to be tendered to the (Government for the pursuit of the rebel-cruiser the Alabama, and wrongfully seized and detained at New York, in eighteen hundred and sixty-five, by authority of the United States, and all papers relating thereto, be referred to the Court of Claims, for examination and the allowance of the amount of damages actually sustained by said owners by reason of such wrongful seizure and detention; the judgment rendered by said court to be paid out of the appropriations duly made to pay judgments rendered by said court: Provided, That said damages shall only include detention, deterioration, and actual expenditures, but excluding all damages for loss of market or breaking up a voyage.”
    And the court found the facts to be, that the Meteor was a well-built sea-going steam and sailing vessel, built for war purposes, and possessed of great speed, and capable of carrying a heavy armament. She was completed near the end of the late war, and in January, 1865, was twice chartered by the United States, and performed one trip to New Orleans for her owners. She was then offered for sale, and was finally fitted for sea, with the intention of selling her abroad. To this end she was manned and victualed for a foreign voyage, and took on board about 700 tons of coal, and provisions and cargo, amounting in value to $19,643.94. She was on the eve of sailing, when she was seized by the United States, in the port of New York, for the alleged intent of violating the neutrality laws. She was libeled in the district court of the United States for the southern district of New York, and there condemned; but on appeal'to the circuit court the libel was dismissed.
    The seizure took place on the 23d of January, 1866, and she was detained in New York by the United States marshal until the 25th July, 1866, a period of five months and twenty-seven days.
    After her discharge in New York she was sent to Boston for necessary repairs, where she remained undergoing repairs until the 21st of September, 1866, a period of two months and one day, making the entire detention, including jier voyage from New York to Boston, seven months and twenty-eight days.
    When the seizure was made the crew and all her officers except the captain were on board. The crew was sent away the night of the seizure, and the next day were discharged, though some of them remained on board for some days. The captain, first mate, and engineer, and two or three men in the engineer’s department, and a watchman, remained on board during her detention in New York.
    The ship was loaded down heavily, so that little opportunity was afforded to make repairs on the hull externally, and her coal and cargo prevented access to her hold within; and while she lay under seizure, exposed to the sun and weather, her planks shrank and dried, her seams opened, and the oakum came out of them from the water-line up, and she leaked badly. The decks, though covered with awning and matting, &e., were much dried and opened, and admitted water the length of the ship, which injured the panel-work of the cabins, and the beams and frame-work of the hull, and also her machinery; and her masts and spars, by exposure to the sun and weather, were materially injured.
    During the war the Meteor was chartered by the Government from March 28, 1865, to April 29, at $690 per day; and again from June 3,1865, to July 28, at $190 per day.
    
      Mr. William J$. Chandler for the claimants:
    In estimating the damages in this case, the court should apply the rules of law applicable in cases of torts. The jurisdiction of this court is ordinarily limited to claims against the United States arising from contracts, express or implied. But here, by express statute, the court is to determine the damages in a case of tort, and should therefore adopt the measure of damages enforced by other courts against wrong-doers. The damages in tort are more elastic and comprehensive than in contract cases. The United States in this case should pay the same damages that would be required of an individual who should do the same wrong, as clearly stated in Brown v. The United States, (6 0. Cls. It,, 197:) “The Court of Claims was established to give legal redress to the citizen as against the Government where he would have had legal redress as against another citizen.” The correct rule of damages to be. applied in this case, it seems to the claimants, has been established by the Supreme Court of the United States in the case of Williamson v. Barrett, (13 How., 101,) decided in 1851, which was an action to recover damages for injuries from a collision of two steamboats on the Ohio River. In the circuit court Judge McLean directed the jury to give damages which should remunerate the plaintiff for the expenditure necessarily incurred in raising and repairing the boat, “and also for the use of the boat during the time necessary to make the repairs and ñt her for business.” (4 McLean,*589.) Mr. Justice Nelson delivered the opinion of the Supreme Court, sustaining the instructions of JudgeMcLean, and defines the amount to be paid for the loss of use of the boat as “ what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged.”
    The court refer, in support of their decision, to the case of the Gazelle, (2 W. Rob., 279,) decided in 1844, where Dr, Lush-iugton, in a collision case, determined the damage for detention by the gross freight which the vessel would have earned during her detention while undergoing repairs, deducting “so much as would, in ordinary cases, be disbursed on account of the ship’s expenses in the earning of the freight.” The counsel for the plaintiff contended for the rule in insurance cases, as stated in a prior case of Palmer v. Blaclcburn, which allowed the gross freight, without any deduction on account of expenses. Dr. Lushington sustained this deduction, but disallowed, in determining the amount due for repairs, any deduction “on account of new materials in place of old, it being a case of tort.”
    The English rule as decided by Dr. Lushington ánd the American rule as established by Mr.-Justice Nelson have never been disturbed, and seem conclusive as to the method of fixing the damages in this case. In Head v. Holman, (19 Sc. C. JB., N. S., 1,) the decision in the case of the Gazelle was affirmed. A society of underwriters had agreed in writing to re-imburse all the damages sustained by the ship Westward Ho in a collision. The court decided that the damages sustained by the ship meant the damages which the owners would have been entitled to recover in admiralty, namely, the expense of repairs, the cost incurred in the arrest and detention, and the loss of freight during the time repairs were going on.
    The decision in Williamson v. Barrett has been applied or recognized in the following cases: The Catherine, (17 How., 174, decided in 1854 by Judge Nelson;) The Cayuga, (2 Ben. 0. 0., 125;) The Umpire State, (ib., 178.) (See Sedg. on Dam., 469.)
    This method of determining damages from detention by de-murrage charges was recognized in the United States much earlier than the decision in Williamson v. Barrett. In Talbot v. Janson, (3 Dali., 133,) in a case of illegal capture and detention, the damages allowed consisted of “ demurrage for the detention and delay,” at a given rate per day, till the ship was sold by order of court, and interest. The principle was approved in the case of the schooner Lively, (1 Gall., 322.) (See also The Corier Marítimo, 1 W. Bob., 287; 4 C. Bob., 71; 5 Bob., 33.)
    The case of The Apollon (9 Wheat., 363) was a libel against a collector of customs for illegal seizure and detention of the ship and cargo. The court allowed, iii addition to the other items of damage, demurrage charges at $40 per day for one hundred and seventy-five days.
    The only cases which may seem to be in conflict with the doctrine of Williamson v. Barrett are those in which the courts have rejected estimated probable losses of profits of voyages broken up, and are perfectly reconcilable with the allowance of regular demurrage charges at market rates, easily ascertained by competent and reliable evidence,. (The Amiable Lfaney, 3 Wheat., 560, in 1818; La Amistad de Bues, 5 Wheat., 385; Smith v. Condry, 1 How., 35; The Rhode Island, 1 Ab. Adm., 100; see opinion of Judge Nelson in the circuit court, 106, and 2 Blatch., 113; The Mary J. Vaughan and the Telegraph, 2 Ben. C. 0., 47; The Narragansett, Olcott, 395; Sedg. on Dam., 70, 469.)
    Even the allowance oí loss of profits eo nomine is sustained by high authority in Vantine v. The Lake, (2 Wall. C. 0., 52:) “ Besides the cost of repairs in this case, charges for wharfage while repairing, for the time of one of the owners and of the crew in raising and clearing out the injured vessel, and for the loss of profits to the vessel while sunk, and during the time she was being repaired, allowed by the court iu the assessment of' damages.” So also in Joly v. Bridge Company, (6 McLean, 248.)
    Upon reason, there can be no other correct or just rule for-determining the damages for the unlawful detention of personal property capable, when in motion, of earning money for its owners, whether ships, steamers, locomotives and cars, or horses with carriages or carts, than by fixing the amount they would .have earned, if not detained, at the fair market value of their services, readily ascertainable.
    
      2Ir.,J. K. MoCammon (with whom was the Assistant Attorney - General) for the defendants:
    The joint resolution of Congress of February 17, 1871, referring this case to the Court of Claims, limits the recovery of the claimants to damages actually sustained, and provides that “ said damages shall only include detention, deterioration, and actual expenditures, but excluding all damages for loss of market or breaking up a voyage.” (16 Stat. L., 703.) The steamer Meteor was not engaged in the merchant service at the time of the seizure, nor had it been prior thereto; and in estimating the actual damage sustained by the owners, a per-diem compensation cannot be allowed, as there is no standard by which it can be estimated. The ship was built, it is alleged by the claimants, to pursue the Alabama, was not adapted to ordinary mercantile use, and had been offered' for sale, just prior to the seizure, to a foreign government, to be used as a war-vessel, and was about starting south to seek a market abroad at the time of her seizure. In a memorial addressed by the claimants to Congress, dated December 16, 1868, asking compensation for losses alleged to have been sustained by the seizure of the Meteor, being the same seizure of which they complain here, the claimants stated inter alia that “ they completed” the Meteor “just as the war closed, when, of course, she could be of no use to our Government, and, from her peculiar construction, was of comparatively little value, except for sale to a foreign belligerent.” Congress, therefore, had in mind the peculiar character of the Meteor when the Joint Resolution February 17, 1871, referring the case, was passed; and by using the expression “ damages actually sustained,” and by the express limitation of tbe proviso to the resolution, intended to limit the court, and to direct judicial attention particularly to the peculiar character of the ship, and its unfitness for ordinary merchant service. Interest on the value of the Meteor for the period of the seizure is all that should be recovered under the head of detention. The actual deterioration of the Meteor during the time of the seizure is not proved. The presumption is that the repairs put upon the vessel restored it to its condition at the time of seizure. No allowance should be made for deterioration caused by the negligence of the owners, who had access to the vessel during the period of its seizure, and who had a captain, mate, engineer, and some men on board during the time of the seizure for the purpose of taking care of the vessel. Under the head of actual expenditures, counsel-fees cannot be allowed, nor any items of unnecessary expense. The court is respectfully requested to reject all such items from the $53,358.80 claimed by the claimants under this head. And if any items entering into this sum are allowed for deterioration, they are to be deducted under this head.
    The attention of the court is asked to the recent decision of the Supreme Court in the case of the Neustra Sonora d’Begla.
    
   Loeing-, J.,

delivered the opinion of the court:

It was contended for the petitioners in this case that they were entitled toa demurrage-compensation for the detention of the Meteor under the seizure by the United States, and in their petition they fixed the amount of this item of claim at $84,350. But we think a demurrage-compensation is precluded by the act referring this case to this court. In its technical and popular signification, demurrage is compensation for the delay of a ship in her employment or voyage. And in this case the joint resolution referring it here expressly excludes “ all damages for loss of market or breaking up of a ■voyage.” And the rule of law as well as of logic is uomne magus eontinet in se minus. And where an act forbids the consideration of the breaking up of a voyage, it cannot intend compensation for delaying it. And on the evidence in this case the voyage was literally broken up ; for when the vessel was seized, she was on the eve of sailing for a foreign port, and on and because of the seizure her crew were discharged. She was detained in New York five months, and she was then sent to Boston for necessary repairs, and detained there three months more. Manifestly this was an absolute breaking up of the voyage on which she was bound when seized; and it is for this, if for anything, that demurrage must be allowed. The words of the joint resolution authorizing us to find damages are as follows: “Provided, That said damage shall only include detention, deterioration, and actual expenditures, but excluding all damages for loss of market or brealcingup a voyage.” And when Congress used this language they knew precisely the facts of the case, for the petitioners had exhibited them all in their memorial to Congress, on which the resolution passed.

If demurrage, i. e., a per-diem compensation, in substitution for warnings, cannot be allowed, then the only other mode of allowing for the detention of the Meteor is to treat her as so much capital, instead of a freight-earning vessel. And we think that mode of fixing the allowance for the detention is dictated by the law and the facts of the case.

And for the grounds of damage specified and prescribed to us in the act, viz, “ detention, deterioration, and actual expenditures,” we allow in all $80,259; for which judgment is rendered, and will be certified to the petitioners.  