
    HERRERA NEPHEWS v. THE UNITED STATES.
    [43 C. Cls. R., 430; 222 U. S. R., 558.]
    
      On the claimant's Appeal.
    
    The suit is for the use and detention of a steamship owned by Spanish subjects, captured by the Army in the port of Santiago during the war with Spain.
    The court below decides:
    I. A claim by a subject of Spain for the seizure and use of a vessel in Spanish waters during the war with Spain can not be founded on any act of Congress or regulation of an executive department or contract, express or implied, and does not come within the jurisdiction of the court.
    
      11.A case growing out of the seizing of a vessel by the military forces of the United States in the prosecution of a war with a foreign power is one sounding in tort, and the nature of the case can not be changed by giving it the form of an action for the use of the vessel after actual hostilities were suspended.
    III. A state of war with Spain did not cease until the ratification of the treaty in April, 1809.
    IV. The order of the President 18th July, 1898, declaring that private property should be respected and could be confiscated only for cause, and should be paid for when taken for the use of the Army, does not change the fact that a seizure of private property was an act of war; and this rule applies to hostilities in Cuba as well as to hostilities in Porto Rico.
    V.The fact that the Government returned a vessel is not a confession that the seizure was not an act of war.
   The decision of the court below is affirmed on the same grounds.

Mr. Justice McKenna

delivered the opinion of the Supreme Court January 15, 1912.  