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Agreements between the United States, the captors and the claimants were filed with the prize court:

That the damages should be charged against the United States or the captors, or apportioned as to justice may appertain, and as the legal responsibility therefor may appear, saving the right to review the decree as to the amount and as to where the ultimate responsibility rested.

The district court entered decrees against the United States for the amounts, and the United States appealed on the grounds that the decree should have gone against the captors and not against the government.

The Supreme Court, by Mr. Justice Holmes, said:

We do not see how it is possible that a decree should be rendered against the captors. There was no formal intervention by them, and whether a decree can be made against the United States or not, it has so far adopted the acts of capture that it would be hard to say that under the circumstances of these cases it has not made those acts its own. It is not disputed that the United States might have ordered the vessels to be released. It did not do so. The libels were filed by the United States on its own behalf, praying a forfeiture to the United States. The statutes in force seemed to contemplate that form of procedure and such has been the practice under them. The libels alleged the capture pursuant to instructions from the President. The captures were by superior force, so that there was no question that the United States was interested in the proceedings. * * * We are not aware that it is disputed that when the act of a public officer is authorized or has been adopted by the sovereign power, whatever the immunities of the sovereign, the agent thereafter cannot be pursued. * * * Under the circumstances of this case, a decree may properly be entered against the United States. The former decree of this court remains in force, and requires a final decree for damages.

In a case cited,

The court was of opinion that the United States had submitted to the jurisdiction of the court so far as to warrant the ascertainment of damages according to the rules applicable to private persons in like cases. *** Decrees in cases which disclose no special circumstances have been recognized by subsequent statutes providing for their payment.

Numerous decisions are cited by the court in support of the foregoing propositions.

RIBAS Y HIJO V. UNITED STATES

194 U. S. Rep. Ed. 315; 48 L. Ed. 994

This case raised the question of the right of a subject of one govern ment to recover compensation from another government, with which the former was at war, for the seizure and use of his property by the enemy government as an act of war. The principle involved could not be in doubt, in the present state of international law, according to which, either belligerent government may, as an act of war, in the conduct of

military operations and for military purposes, requisition, seize or impress into its service the goods and chattels of citizens or subjects of the enemy state; and this without any liability to make indemnity for the property so taken in the course of regular warfare.

J. Ribas y Hijo, a Spanish corporation, brought suit against the United States government in the district court of Porto Rico to recover for the use of a merchant vessel taken by the United States authorities, in the port of Ponce, Porto Rico, when that city was captured by the United States army and navy, July 28, 1898.

The vessel was kept and used by the quartermaster's department of the army until some time in April, 1899, when the war department ordered its return to the owner, if all claims for use or damage for detention should be waived. Such conditional return was refused by the captain, who claimed to be a part owner, and with his crew he left the vessel. Subsequently, the consignees of the vessel were notified that it was at their disposal; that the government was about to discharge those having it in care; and they were requested to put someone in control of it. This they declined to do, and the vessel was abandoned, and in August 5, 1899, was wrecked in a hurricane.

The vessel was not seized as a prize of war; was not sent to a prize court; its nationality was Spanish; it was not within any of the declared exemptions from seizure set forth in the proclamation of the President of April 26, 1898.

The district court dismissed the case, which came by appeal to the Supreme Court of the United States, which decided:

According to the established principles of public law, the owners of the vessel, being Spanish subjects, were to be deemed enemies, although not directly connected with military operations. The vessel was, therefore, to be deemed enemy's property. It was seized as property of that kind, for purposes of war, and not for any purposes of gain.

The court decided, moreover, that:

The claim is not founded on the Constitution of the United States, or on any act of Congress, or on any regulation of an executive department. Nor can it be said to be founded on contract, express or implied.

Moreover:

The treaty of peace between the two countries provided that "the United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects, against the other government, that may have arisen since the beginning of the late insurrection in Cuba, and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war."

The judgment of the district court was affirmed.

COLOMBIA V. CAUCA COMPANY

190 U. S. Rep. Ed. 524; 47 L. Ed. 1159

This case involved the following questions:

1. The jurisdiction of the United States Supreme Court over an appeal from a judgment rendered by United States circuit court of appeals against a foreign government which had brought suit against an American citizen.

2. The validity of an award of a tribunal of arbitration, between the foreign government and American citizen, rendered by a majority of the arbitrators, one of them having resigned after the discussions were closed but before the award was rendered.

3. The impeachment of an award as having been given in part in excess of the jurisdiction conferred by the arbitral agreement.

4. The impeachment of an award by one of the parties after that party has received and retains the valuable consideration stipulated in the arbitral agreement.

5. The power of the arbitrators to render an award for the benefit of the assignee of the contract, the assignor, and not the assignee, being a party to the submission.

The decisive facts of the case were these: One Cheery received a concession, with the right of assignment, from the Colombian government to build a railroad. Cheery, for valuable considerations, assigned the concession to the Cauca Company, a West Virginia corporation, organized for the purpose of building and operating the road. Cheery then assigned his contract to the Cauca Company to the Colombian Construction and Improvement Company for certain valuable considerations. The latter company became thereby substituted to his place in his contract assigned to the Cauca Company. The road was not built within the period prescribed in the concession, and the government claimed the forfeiture. The Cauca Company claimed that this failure was due to the fault of the government. The matter became the subject of diplomatic discussion, and culminated in an agreement of arbitration, by the terms of which the Cauca Company surrendered the railroad to the government, which agreed to pay a just indemnity. The arbitration tribunal, styled a commission, consisted of three members, one appointed by Colombia, one by the Cauca Company, and the third by common accord between the secretary of state and the Colombian minister at Washington. The arbitral agreement provided that the commission was to

determine the procedure to be followed in the exercise of the power conferred upon it, both as to its own acts and the proceedings of the parties.

In pursuance of this power, it resolved that all decisions should be by majority vote. At the end of the trial, and before the decision, the Colombian commissioner announced his resignation to the commission. The award was rendered by the other two commissioners. The Colombian government brought suit in the United States circuit court for the district of West Virginia to set aside the award. From an appeal taken from the United States circuit court of appeals to the United States Supreme Court the latter decided:

1. As a foreign government has seen fit to submit its case to the courts of the country with whose citizens its controversy exists, it would be unfortunate if, through any mistakes, it was prevented from carrying questions of law to the court of last resort. We are of opinion that it had the right to appeal. The circuit court had jurisdiction, under the Constitution, article 3, section 2, and the act of August 13, 1888, section 1, 25 Stat. at L., 434, as the suit is "a controversy between citizens of a state and foreign states, citizens or subjects" within the words and meaning of the act. The right to appeal from the decree of the circuit court of appeals is given by the act of March 3. 1891, U. S. Compiled Statutes, 1901, 550, "in all cases not hereinbefore in this section made final."

2. Colombia is put in the position of seeking to defeat the award after it has received the railroad in controversy, and while it is undisputed that an apppreciable part of the consideration awarded ought to be paid to the company under the terms of the submission. The bill offers to pay the undisputed sum but not to rescind the submission and return the railroad.

mous.

3. It was not expected that a commission made up as this was would be unaniThe commission was dealt with as a unit, as a kind of court in the submission. It had itself resolved, under the powers given to it in the agreement, that a majority vote would govern. Obviously, that was the only possible way, as each party appointed a representative of its side. We are satisfied that an award made by a majority was sufficient and effective. Whatever might be the technical rule for three arbitrators dealing with a private dispute, neither party could defeat the operation of the submission, after receiving a large amount of property under it, by withdrawing or adopting the withdrawal of its nominee when the discussions were closed. 4. The main and serious question of the case is whether the scope of the submission was exceeded by any items of the award. * * * The only fair way is to take the language (of the arbitral agreement) in its natural sense, not straining it either way. It is for us to determine the scope of the commission, whatever may have been its own finding with regard to its powers. When its powers are established we are not called upon to revise any finding that could have been made without going beyond the line which we lay down.

***

Accordingly, the Supreme Court affirmed the award in part, but rejected certain items allowed by the commissioners.

5. It is said that the last named company (the Colombian Construction and Improvement Company) was not a party to the submission, which is true. But the

commission might have reasonably found that this company was the assignee of the contract between Cheery and Cauca Company by which Cheery was to build the road and receive the Cauca Company's stock and bonds. Therefore, the work done by the Construction Company had to be paid for by the Cauca Company, and the result of its work was the railroad which the company surrendered. Under such circumstances we can listen to no hair-splitting as to whether the work done upon the road by the Construction Company can be called the Cauca Company's obras y trabajos.

NORTHERN PACIFIC RAILWAY COMPANY V. AMERICAN TRADING COMPANY

195 U. S. Rep. Ed., 439; s. c. 49 L. Ed. 269

This case involved the question of contraband of war as a defense to an action against a common carrier for damages for breach of contract to transport.

A special agreement was made for the transportation of a quantity of lead from New York to Yokohama over intervening routes from New York to Tacoma and by the steamship of the Northern Pacific Steamship Company, due to leave Tacoma October 30, 1894. After the contract and payment of transportation charges were made, the defendant company declined to ship the lead upon the ground that it might be contraband of war. The trading company then notified the railway company that they would hold the company responsible for any loss from its failure to fulfil the contract. It was well understood by the parties before the contract was made that the lead might be considered as contraband of war in view of the war then existing between China and Japan. The deputy collector of the port refused to grant clearance papers to the ship while the lead was on board, which was accordingly unshipped; and this was also urged as a defense by the railway company on the ground that it made the performance of the contract both impossible and unlawful. The court held:

The contract was not unlawful when made. It may be assumed that the lead was contraband of war; but that fact did not render the contract of transportion illegal nor absolve the carrier from fulfilling. It is legal to export articles which are contraband of war; but the articles and the ship which carries them are subject to the risk of capture and forfeiture. Neither any law of the United States, nor any provision of international law, was violated by the making of this contract, nor by an attempt to export the lead pursuant to its provisions.

The court held that the mistaken action of the deputy collector in refusing to grant the clearance was an undoubted violation of his duty; that his refusal constituted no defense to the action on the contract,

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