[222 U.S. 574, 575] Messrs. Haward Thayer Kingsbury, Crammond Kennedy, and Frank D. Pavey for appellants.
Assistant Attorney General Thompson and Mr. Franklin W. Collins for appellee.
Mr. Justice McKenna delivered the opinion of the court:
This case was argued and submitted with No. 89, Herrera v. United States, just decided. [ 222 U.S. 558 , 56 L. ed. 316, 32 Sup. Ct. Rep. 179.] As in that case the findings of fact recite the pendency of the war between the United States and Spain, the capitulation of Santiago and the cessation of hostilities in that district between the contending forces, the seizure and capture by the military authorities of the United States of the steamer Thomas Brooks, among other vessels and lighters, on the 17th day of July, 1898, she then being owned by claimants, and her use for the transportation of troops and munitions of war until September 6th of the same year, a period of fifty-seven days, the United States paying the cost of operating the steamer. Prior to her seizure she had been used to transport Spanish troops and munitions of war. The full and reasonable value of her use was $125 per day, amounting to the sum of $6,375, no part of which has been paid.
The other vessels seized and captured were small vessels and lighters, which were used for a time and later returned on the advice or opinion of the Judge Advocate General of the Army. Their use was paid for by government on [222 U.S. 574, 576] some amicable terms. Also, after September 6, 1898, the claimants were, by some amicable agreement between them and the quartermaster in charge at Santiago, permitted to use and operate the Thomas Brooks at their own expense, they agreeing to transport in her troops and munitions of war and other supplies at one half the transportation rates. This was done, and the claimants were paid for the service.
On the 18th of January, 1899, after the vessel had been turned over to claimants, they executed a receipt and released all claims in the form set out in Herrera v. United States.
It was also found by the court as follows, being No. 5 of the findings:
The President's proclamation of July 18, 1898, is found as in the Herrera Case.
The court of claims dismissed the petition on the authority of J. Ribas y Hijo v. United States, 194 U.S. 315 , 48 L. ed. 994, 24 Sup. Ct. Rep. 727, and the Herrera Case.
Claimants urge nothing in this case because one of them is a British subject, except on the principles expressed in The Venice (United States v. Cooke) 2 Wall. 258, 17 L. ed. 866, and of those principles we have commented in the Herrera Case. Nor can much be urged on account of the settlement made by the officers of the United States with claimants for the services rendered after the surrender of the vessel, and the settlement made for some smaller vessels and lighters, or the tender of payment of $4,000 by the quartermaster at Santiago for the use of the wharves, as set out in finding V. Indeed, counsel say that 'the intention to pay must be the officially declared intention of the government, evidenced in the cases at bar by the rules and regulations prescribed by the President and promulgated by the Secretary of War in general orders No. 101, and not the mere temporary mental processes of this or that subordinate officer who happened to be quartermaster at the time and on the spot, and ignorant or disregardful of the law of the case as laid down by the President.' The necessities of the case require claimants to [222 U.S. 574, 578] take that position; but we need not repeat what we said in No. 89 of those orders or of the proclamation. It is not possible to hold that the proclamation of the President was intended to supersede the laws of war, and attach to every appropriation by the military officers conducting operations of war the obligations and remedies of contracts. It could not have been the intention of the President to prevent the seizure of property when necessary for military uses, or to prevent its confiscation or destruction. For the reasons for this conclusion we refer to the opinion in the Herrera Case.