Opinion of Mr. Commissioner Frazer in the
cases of the Boyne, the Monmouth, and the Hilja, Nos. 216, 315,
and 467. (See p. 153,
The allowance of prospective earnings by vessels was denied by the tribunal at Geneva unanimously. It is not, so far as I am aware, allowed by the municipal law of any civilized nation anywhere. The reason is obvious and universally recognized among jurists. It is not possible to ascertain such earnings with any approximation to certainty. There are a thousand unknown contingencies, the happening of any of which will render incorrect any estimate of them, and hence result in injustice.
Who can say that the Monmouth would have reached Savannah at all? That she could have procured a cargo of cotton at ¾d. per pound, the lowest freight in proof? Who can say that she would have got better or as good rates as that? Why could she have done better? There is no reason. Who can say that she could have been laden and sailed before the blockade would have stopped her? The witnesses do [Page 253] not say so, but only “if she had met no detention or accident.” Can this commission say so? It is palpable that we can only conjecture, and conjecture is no fit basis for an award of damages. We should have had evidence more satisfactory from the claimant, such as the prevailing rate of charter of such a vessel at the time and place. Under such circumstances we are left to estimate the value of the vessel for return-cargo upon very unsatisfactory evidence. I base my estimate upon cotton-freight at ¾d. per pound, because there is, in my judgment, a greater probability, in view of all contingencies, that this is above rather than below a just estimate.
These observations apply also to the case of the Boyne, heretofore decided. I now doubt whether this is not too much. It assumes that each contingency would have been avoided, the happening of any one of which would have prevented this vessel from doing as well as some others; and this assumption in favor of the claimant is quite as much as, in my judgment, we may make, with due regard to public law, as declared at Geneva, and to the principles of justice, as recognized everywhere.
The Monmouth, (No. 315.), The President, by proclamation of April 19, 1861, gave public notice of a purpose to blockade the ports of South Carolina, Georgia, and of the States south thereof, announcing that a “competent force would be posted” for that purpose. The proclamation announced further that any vessel approaching or attempting to leave “either of said ports” with a view to violate “such blockade,” would be warned by the commander of “one of the blockading vessels,” who would indorse such warning and the date thereof on her register, and any subsequent attempt of the same vessel to enter or leave “the blockaded port” (certainly meaning every port covered by the warning) would result in capture. It cannot be supposed that it was intended that this warning was to be repeated off each port blockaded.
In these cases the warning was by a vessel blockading Charleston and off that port before there was any actual blockading force off Savannah, and was indorsed thus:
Boarded, informed of the blockade, and warned off the coast of all the Southern States by the United States steamship Niagara, May 12, 1861.
EDWARD C. POTTER,
Lieutenant United States Navy.
This warning was not, and is not, disavowed. It must, therefore, have the same effect as if the officer giving it had been expressly instructed by the highest authority to give it in that form. It must be regarded as the act of the United States, and was notice to the vessel that all the Southern ports embraced within the proclamation were then actually blockaded, and that any subsequent attempt of the vessel warned to enter any of such ports would result in capture.
A vessel bound for Savannah, thus warned, it is true, might have disregarded the warning, and could lawfully have proceeded to Savannah because there was not, in fact, any force blockading that port. If captured she would, unquestionably, have been discharged with damages by the prize court.
But must the neutral merchantman run the hazard of attempting to enter Savannah? Had she found there an actual blockade and been captured, her previous warning would have been good, and her condemnation as good prize would have been certain. There is in the facts every element of a strong obligation upon the United States, and in favor of a vessel which, on the faith of the warning given, fully respected [Page 254] it, and by so doing suffered loss, to make good that loss. The neutral vessel, ignorant as to the facts, had a right to act upon the warning; and I am compelled to hold that, in doing so, she acted with all prudence and propriety, and that, judging, as her captors must at the time, any other course would have been rashness and folly. A regard for the interests of his owners, as well as respect for the United States, required that the master should abandon any purpose to enter Savannah.
These observations apply also to Nos. 216 and 467.