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American commissioner, who has seen the improvements in our agriculture, can and will, in rendering judgment in this case, allow a just sum for the right to import them for sale into the fertile regions of Paraguay.
Rule of Damages. We cite a few authorities upon the rule of damages. The civil law upon which international law and the law of all civilized countries, (in England and this country, through admiralty and equity,) is founded, recognises the principles for whose application we ask in this case.
The case put in Domat's Civil Law, vol. 1, $750, Cushing ed. $1921 et seq., by way of illustration, is of a person having leased a shop in some town not the place of his usual residence, and then deprived of his possession, the charges for damages in such a case for mere breach of contract, without tort or wrong, are, first, for transportation to the place and back again ; second, the loss of profits, to be adjusted according to the circumstances in a wise discretionstill the profits. He puts the case also of a breach of contract to deliver certain goods for shipment. The expenses of carriage and transport to receive the goods is a clear element of damages. So the profit to be made from them, to be rationally estimated. He speaks of it as a vulgar distinction between the loss of profits and the loss of property.
Thus we see the civil law would reimburse the party all he had expended in attempting to carry out the enterprise, and also for his profits, not wildly but judiciously estimated by the tribunal; and Domat goes on to say, section 1927, that in case the ejection from the leased premises was intended for the gain of the wrongdoer, so that he might make more from the other parties, " then the damages ought to have the utmost extent that the rigor of the law can give it."
So in section 1970. In the case of a builder who does not build the house he contracted for, he is liable for the expense of rebuilding, for the loss of rent in the meantime, and for any liability in damages from the landlord to a tenant with whom the landlord had contracted-as in our case to our employés. Rutherford, in his Institutes of Natural Law, being lectures on Grotius, says, page 203: “In estimating the damages which any one has sustained where such things as he has a perfect right to are unjustly taken from him or withholden or intercepted, we are to consider not only the value of the thing itself, but ths value likewise of the fruits or profits that might have arisen ftom it. He who is the owner of the thing, is likewise the owner of such fruits and profits; so that it is as properly a damage to be deprived of them as it is to be deprived of the thing itself.” The rules of the Supreme Court of the United States are the same.
In the case of Bell vs. Cunningham, (3 Peters, 69,) where an agent had neglected to purchase tiles in Leghorn, to be shipped to Havana, he was held liable not only for the money which the tiles would have cost in Leghorn, but also for the profit which would have been made on them in Havana.
So the case of P. W. & B. R. R. Co. vs. Howard, (13 Howard, 307,) when a railroad company had broken its agreement with a contractor, he was allowed to recover for the profits which he would have made if the contract had not been broken. Damages should make him whole of his loss, This case recognizes and sanctions the doctrine of the leading case on the subject in our American law, (Masterton vs. Mayor of Brooklyn, 7 Hill, 62,) where a contractor was allowed to recover in damages the profits he would have made on marble not yet bought or worked—the difference between what it would have cost him and what he would have received.
The case of the “ Amiable Nancy,” (3 Wheaton,) the only case referred to by the defendant's counsel, is not a case in which the court lay down the rule of damages against the wrongdoer himself, but against a party who is constructively liable only. We referred to the case, only that this distinction as to the character of parties in the liability for damages might be borne in mind on the trial. This very case, and this only, is cited by defendant's counsel, to show the law in a case against the wrongdoer himself. For such clearly is the case at bar. President Lopez and his government are confessedly the parties defendant, the parties who have done the wrong. The rule, therefore, laid down in the “ Amiable Nancy” is not applicable to this case, or if it were, has been overruled in the same court.
Now, putting our case down to the mild level of these analogies, regarding the decrees under which we went to Paraguay as offers accepted by us, and then rescinded or practically rendered null and void by the action of the Paraguayan government, what should be the measure of damages ? Certainly our cost in taking our men, machinery, and vessels to Paraguay, or cost bona fide incurred, though with some disaster and loss in doing so, and in getting back again. So also the value of our position, and especially the value of lease or patents, which, though difficult to estimate with precision, are certainly larger than our claim.
But this is not a mere case of contract broken, but of wrong proved and conceded in the convention, though denied on trial. And in such cases such liability is admitted in all the books. (See Sedgwick, and cases referred to in opening argument.)
Rights vested under existing laws cannot be divested under any system of government. This first principle is not open to controversy. It will not do to say in substance that Lopez is a despot, knowing no law but his own will. He does not so profess. He does not ask to be so judged. And Americans in that country he cannot treat in that manner without reclamation and vindication by the government of their country. Nor is his claim upon the justice of this commission increased if his method shall be found to be indirect and not direct, through popular annoyance instigated by him, through destitution caused by his will, through decrees founded upon alleged but erroneous suppositions of fact, through summary and ex post facto proceedings, imposing impossible conditions, and, when possible, thwarted by his own action, and especially if the motive of his conduct be tainted with personal purposes.
But we will not dwell upon this conduct; we leave all to the judgment of the commission. The largest expedition ever sent from this country has proclaimed our power in the heart of South America. It has proclaimed our justice too. The strength of united England and France is put forth in the eastern world, but our navy seeks the uttermost parts of the earth, also, to open up commerce and a civilization in regions yet comparatively undeveloped. And if wrong is done to American citizens in these new regions of enterprise and commerce, and these wrongs are left unredressed, if they are not made whole for their money expended, for time and labor, and years of life wasted, property destroyed, and reasonable hopes blasted, then the whole paraphernalia of armies and navies is a failure; for they are all, at least, in a republican government, the agents and protectors of private rights and of the welfare of the individual citizens of the Republic.
We are assured that the success which has attended the conduct of this difficult and perplexing precedent in our diplomatic history by the present administration will receive its crowning perfection in securing just compensation and redress to American citizens; and that it will never be left for history to record, after the distinct admission of the counsel for President Lopez, made after days of minute and laborious examination of books, papers, vouchers, and witnesses, that he has no doubt of their entire correctness as stated by the claimants—that the sums therefore which they have spent, and for which they are liable, for outlays in this Paraguayan enterprise are, with interest, over four hundred thousand dollars. And after it shall appear, as is equally undoubted, that these moneys were spent in good faith, in good judgment, in the prosecution of that enterprise by innocent parties; and when it appears also that every branch of the American government-and every officer who has heard both sides, and investigated the whole matter, have come to the same conclusion, that the company was most wrongfully expelled from Paraguay,that the President and Congress, and the army, and the navy have been moved by a sense of justice to obtain an acknowledgment of that wrong from Paraguay, and have obtained it-certainly it will not be left to history to say that these enterprising American citizens, endeavoring to open to American commerce and enterprise the great regions of central South America, now, in consequence of their wrongful expulsion, fallen into the hands of other commercial rivals, were turned off by an American commissioner, experienced in all the high duties of American statesmenship, with less than their expenditure. Nor will he tamely count as nothing the personal insult and wrong to which they were subjected, or the thought and time and labor which planned and have carried on the enterprise; and which, again, the counsel of President Lopez has said, was itself well done, except in the employment of Hopkins, as to whom the evidence, and not President Lopez or his counsel, should speak. We have employed no underlings to abuse our opponents or their cause through the public press. We have addressed each tribunal before whom we have appeared, and them only, and with considerations fit to be addressed, so far as we can judge, to the best court in Christendom. The record is right thus far. The past, at least, is secure. The rest is in just hands. An enlightened press, and the history of the country, will record the result, and with it we shall be satisfied.
Expenses. The expenses to which a party is subjected in vindicating his rights are, in the civil law, and in admiralty, and in the practice of commissions which settle international clairns, allowed as part of the damages to be received by him.
The statutes in our common law courts allow, on a similar principle, a uniformn and fixed rate of costs, which is more or less adepuate according to the circumstances of each case, as compensation for expenses.
The costs of this commission are chargeable as costs of court, like the sums paid to judges and sheriffs and clerks, which the plaintiff always must in the first instance pay, and always receives of the defendant when the latter is cast in the suit. The other expenses, in procuring the attendance of witnesses and for the necessary attendance of parties, comes under the same head, and are allowed in bills of costs. The counsel fees, small in common law bills of costs, and discretionary and just, in proceedings of this character, as well as in the civil law and in admiralty, are allowed in all tribunals.
Domat, $1941 : “ The ordinance requires a reimbursement of the charges which the parties who gain the said suit have been at in carrying out.'
So in the United States Supreme Court in admiralty.
The Apollon, 9 Wheaton, 98: “The fifth item, allowing $500 as counsel fees, is unexceptionable. It is the common course of the admiralty to allow expenses of this nature, either in the shape of damages or as part of the costs.”
Many cases in that court follow this rule.
Such is the practice, we are informed, in the Department of State in cases of international claims. Leggett's case illustrates it. Such seems to be the rule in Paraguay. Law of 1845, sec. 7 and 8, as in our patent laws.
Counsel fees, in addition to the bills of costs, are allowed at common law in cases of tort, as in cases of flowage of another's lands, (see 2 Story, 661, Whipple vs. Cumberland Manufacturing Company;) or, if not in that form specifically, yet under the liberal discretion allowed in all such cases included in the compensatory or exemplary damages by the tribunal assessing them. Sedgwick, 79.
The amount, we may safely say, of counsel fees for three years, with expenses of witnesses and attendance of parties during this six months' trial, will be an addition to the amount already paid and in the accounts, some three thousand dollars—not less than from ten to twelve thousand dol. lars, which we respectfully claim should be included in the award. Respectfully submitted by The United States and Paraguay Navigation Co.,
BY THEIR COUNSEL.