222 U.S.

558
32 S.Ct. 179
56 L.Ed. 316

COSME BLANCO HERRERA and Jose Blanco Herrera,

Doing Business under the Firm Name of Herrera Nephews,
Appts.,
v.
UNITED STATES.
No. 89.
Argued December 11 and 12, 1911.
Decided January 15, 1912.

Messrs. Howard Thayer Kingsbury, Crammond Kennedy, and Frank D.

Pavey for appellants.
[Argument of Counsel from pages 559-562 intentionally omitted]
Assistant Attorney General Thompson and Mr. Franklin W. Collins for
appellee.
Mr. Justice McKenna delivered the opinion of the court:

Petition in the court of claims for the recovery of $88,200 for the value of the
use and profits of which claimants were deprived, as it is alleged, by the taking
and detention of a certain steamship by the United States during the war with
Spain, and for the loss of certain property belonging to and a part of such
steamship, alleged to be 'fairly worth' the sum of $5,000, amounting in all to the
sum of $93,200.

Claimants base their right to recover upon an implied contract arising from the
facts which we shall presently detail. Opposing this view, the government
contends that the property was enemy property seized for military uses, and
that, besides, the record does not show a 'convention between the parties' or
circumstances from which a contract could be implied, and that therefore the
case is one sounding in tort, and claimants have no right of recovery.

The court found as a conclusion of law from the facts, 'on the authority of the
case of J. Ribas y Hijo v. United States, 194 U. S. 315, 48 L. ed. 994, 24 Sup.
Ct. Rep. 727, that the claim herein is one arising from the capture and use of a
vessel as an act of war, and the court is therefore without jurisdiction, and the
petition is dismissed.'

The claimants, at the time the steamship was taken, composed a commercial
partnership, doing business under the firm name of Herrera Nephews. They
were born in Spain, and, under the Spanish regime in Cuba, were Spanish
subjects residing in Havana. After the treaty they did not, in accordance with its
terms, preserve their allegiance to Spain.

On the 16th day of July, 1898, the Spanish forces then occupying the territory
constituting the division of Santiago, including the city and port of that name,
capitulated to the United States in accordance with the terms of a military
convention which provided that all hostilities between the American and the
Spanish forces in that district should cease, and that the Spanish forces should
be returned, at the expense of the United States, to Spain. Actual hostilities
ceased with the surrender of Santiago.

The United States military authorities seized and captured the steamer San Juan
on the 17th of July, 1898, she having been held in the harbor by its blockade by
the United States naval authorities. Prior to that date she had been used to
transport Spanish troops, munitions of war, and supplies for the Spanish troops
from place to place. After her capture she was used for like service for
American troops and indigent Cubans until November, 1898,a period of 115
days. The reasonable value of her use was $150 per day, amounting to the sum
of $17,250, no part of which has been paid to claimants.

After the surrender of Santiago and the seizure of the steamship, the Secretary
of War, on July 18, 1898, in pursuance of the proclamation of the President of
July 13, 1898, issued general order No. 101, which, among other things,
provided that 'private property, whether belonging to individuals or
corporations, is to be respected, and can be confiscated only for cause. Means
of transportation, such as telegraph lines and cables, railways and boats, may,
although they belong to private individuals or corporations, be seized by the
military occupant, but unless destroyed under military necessity, are not to be
retained. . . .

'Private property taken for the use of the Army is to be paid for, when possible,
in cash, at a fair valuation, and when payment in cash is not possible, receipts

are to be given.'
9

This order was promulgated in Cuba, July 20, 1898.

10

On November 8, 1898, the Quartermaster General of the Army telegraphed to

R. A. C. Smith, the representative and attorney-in-fact of claimants, that it was
proposed to return the 'captured steamer' to owners, and asked him to wire their
names. Smith answered on the 12th 'that claimants agreed to accept the vessel,
reserving their right to make claim.' On the 15th the War Department notified
Smith that the government was ready to deliver the vessel to her owners upon
condition that a receipt be given showing that she was accepted with full
knowledge and understanding that the Secretary of War did not consider that
any allowance was due the owners on account of her use, she being captured
property, or for any damage sustained by her while she was in the possession of
the United States, and that any claim subsequently quently made should be a
matter for future consideration by the War Department. The terms were
rejected, and she remained in the possession of the United States.

11

On April 25, 1899, the quartermaster at Santiago, on instructions from the War
Department, wrote claimants' agent that if they did not receive the steamer 'in
accordance with the conditions hereinafter expressed,' she would be delivered
to the Department of the Quartermaster of the Army and retained as property of
the United States.

12

On the 17th claimants accepted her and gave the following receipt:

13

'Received this 17th day of May, 1899, at Santiago, Cuba, from Maj. John T.
Knight, quartermaster, U. S. Army, chief quartermaster Department of
Santiago, the steamship San Juan , which vessel is accepted with the full
knowledge and understanding that the Secretary of War does not consider that
any allowance is due the owners on account of the use of the vessel, she being
captured property, or for any damages sustained while the vessel has been in
possession of the United States government, the return of the vessel being a
generous act on the part of the United States government, and that any claim
subsequently sequently made for such use and damages shall be a matter for
future consideration of the War Department.

14

'And we name and authorize our agents in Santiago de Cuba Messrs. Gallego,
Mesa, & Company, of said cityto receive and take possession of said
steamship San Juan.'

15

They also executed a paper which recited that it was given in consideration of
the prompt return of the vessel to claimants, and that released the government
and its officers and agents 'from all manner of actions, damages, claims, and
demands whatsoever' on account of her seizure, detention, and use.

16

From the time that the Quartermaster General of the Army proposed to return
the vessel until May 17, 1899, a period of 190 days, the vessel, though retained
by the United States, was not used. During said period the United States kept a
watchman on board, who was paid $45 per month. The compensation claimants
are entitled to, if any, for such period, taking into account that the vessel was
not used, would be $125 per day, or $23,750.

17

Upon the return of the vessel to claimants, tools and implements of the value of
$232.50 were missing, but it is not shown by whom they were taken. No other
property is shown to have been taken possession of by the United States. The
steamer, when returned, appeared to have been in as good condition as when
taken into possession, ordinary wear and tear excepted.

18

As we have seen, the court of claims rested its decision on the case of J. Ribas y
Hijo v. United States, and that case also is the main reliance of the
government's argument. Claimants, however, contend that the J. Ribas y Hijo
Case is distinguishable from that at bar.

19

The action there was brought to recover the value of the use of a vessel
belonging to Spanish subjects and taken by the United States in the port of
Ponce, Porto Rico, when that city was captured by the United States Army and
Navy on July 28, 1898. The vessel was used by the quartermaster until some
time in April, 1899, when she was ordered to be returned to the owner, if all
claims for damages for use or detention should be waived. The condition was
refused, and the vessel was subsequently abandoned, and was wrecked in a
hurricane. We quote the following from the statement of facts in the opinion:
'The vessel was never in naval custody nor condemned as prize. When seized it
was a Spanish vessel, carried the Spanish flag, and its owner, captain, and crew
were all Spanish subjects. It did not come within any of the declared
exemptions from seizure set forth in the proclamation of the President of April
26, 1898. 30 Stat. at L. 1770. A claim filed in the War Department in February,
1900, for its use, was rejected.'

20

The court of claims dismissed the petition on the ground that the vessel was
properly seized as enemy property, and its use was by the war power, for war
purposes. This court sustained the judgment and the principles upon which it

was based.
21

A question of jurisdiction became prominent in the case. The action was

brought in the district court of Porto Rico, and the court could only have had
jurisdiction under the Tucker act, so-called, which provides for the bringing of
suits against the United States. 24 Stat. at L. 505, chap. 359, U. S. Comp. Stat.
1901, p. 752. In other words, as expressed in the act, omitting grounds of action
with which the case was not concerned, that court was given jurisdiction of
suits 'upon any contract, express or implied, with the government of the United
States, or for damages, liquidated or unliquidated, in cases not sounding in tort.'
Considering whether the action was of that nature, this court said that there was
no element of contract in the case, for nothing was done or said by the officers
of the United States from which could be implied an agreement or obligation to
pay for the use of the vessel; and declared, further, that, according to
established principles of law, its owners, being Spanish subjects, were to be
deemed enemies, although not directly connected with military operations, and
that therefore the vessel was to be deemed enemy's property. 'It was seized,' it
was said, 'as property of that kind, for purposes of war, and not for any
purposes of gain.' In further emphasis of this conclusion, it was added: 'The
seizure, which occurred while the war was flagrant, was an act of war occurring
within the limits of military operations. The action, in its essence, is for the
recovery of damages, but as the case is one sounding in tort, no suit for
damages can be maintained under the statute against the United States.'

22

It was also decided that the claim of the plaintiff in the action was embraced in
the stipulation in the treaty of peace between Spain and the United States, by
which they 'mutually relinquished 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. . . .'
[30 Stat. at L. 1757.] That effect, it was declared, must be given to the treaty,
even though the Tucker act could have been construed to authorize the suit,
upon the ground that each being equally the supreme law of the land, the last in
date must prevail in the courts.

23

Before comparing that case with the case at bar we may take a glance at
Juragua Iron Co. v. United States, 212 U. S. 297, 53 L. ed. 520, 29 Sup. Ct.
Rep. 385, where it was decided that, Cuba being 'enemy's country,' even 'an
American corporation doing business in Cuba was, during the war with Spain,
to be deemed an enemy to the United States with respect of its property found
and then used in that country, and such property could be regarded as enemy's

property, liable to be seized and confiscated by the United States in the

progress of the war then being prosecuted.'
24

The action in that case was in the court of claims to recover from the United
States the alleged value of certain property destroyed in Cuba during the war
with Spain, by order of the officer commanding the United States troops
operating in the locality of the property, the purpose of the order being 'to
destroy all places of occupation or habitation which might contain fever germs.'
The buildings destroyed were sixty-six in number, and were used in connection
with mining operations and the manufacture of iron and steel products.

25

The destruction of the buildings was considered as an act of war and sustained
as such. It was also decided that, even on the supposition that such destruction
was wrongful and unnecessary, a tort was committed, and though committed in
the interest of the United States, there was no element of contract, and the
action was not one of which the court of claims could 'take cognizance,
whatever other redress was open to the plaintiff.'

26

We have, then, these propositions established: Cuba was enemy's country, and
all persons residing there pending the war, whether Spanish subjects or
Americans, were to be deemed enemies of the United States, their property
enemy's property, and subject to seizure, confiscation, and destruction. It would
seem necessarily to follow that the claimants in this case were enemies of the
United States, and their property subject to the necessities of war. And this is
but the application of the rule which declares that war makes of the citizens or
subjects of one belligerent enemies of the government, and of the citizens or
subjects of the other. The Venice (United States v. Cooke) 2 Wall. 258, 274, 17
L. ed. 866, 867; White v. Burnley, 20 How. 235, 249, 15 L. ed. 886, 889.

27

These consequences, it is insisted, are averted in the case at bar by two

important circumstances: that Santiago, unlike Porto Rico, was not captured,
but capitulated, and by the explicit direction of the proclamation of the
President of July 13, 1898, promulgated in Cuba on the 20th. The argument is
that those circumstances modified the general rule, and that the property of
claimant ceased to be 'hostile,' and passed 'under the sovereignty' of the United
States, and as inviolable as other property under the jurisdiction of the United
States, and, if taken for public use, an obligation to make compensation would
be implied. The Venice (United States v. Cooke) 2 Wall. 258, 17 L. ed. 866,
and other cases are adduced to support the contention. It was decided in The
Venice that after the surrender of New Orleans, its military occupation by the
Federal forces 'drew after it the full measure of protection to persons and
property consistent with a necessary subjection to military government.' The

limitation is important. The case is not as broad as the contention which it is

cited to support. It was concerned with the restoration of the authority of the
United States over a part of the United States which had been in a state of
insurrection, and in such case, that is, in districts occupied by national troops, it
was 'the policy of the government not to regard such districts as in actual
insurrection, or their inhabitants as subject in most respects to treatment as
enemies.' Such occupation, it was said, did not 'restore peace, or, in all respects,
former relations;' but it replaced 'rebel by national authority,' and recognized,
'to some extent, the conditions and the responsibility of national citizenship.' In
emphasis of the same view, it was said: 'As far as possible the people of such
parts of the insurgent states as came under national occupation and control were
treated as if their relations to the national government had never been
interrupted.'
28

The Ouachita Cotton (Withembury v. United States) 6 Wall. 521, 18 L. ed.

935, does not change the ruling in The Venice from an expression of the special
policy of the government indicated by its legislation to a declaration of law
necessarily following from the military occupation of even enemy country. It
was an obvious application of the principles of The Venice to hold that, with
the restoration of the national authority, 'from that time its citizens were clothed
with the same rights of property, and were subject to the same inhibitions and
disabilities as to commercial intercourse with the territory declared to be in
insurrection, as the inhabitants of the loyal states,' and that 'such is the result of
the application of well-settled principles of public law.' To the same effect is
Desmare v. United States, 93 U. S. 605, 611, 23 L. ed. 959, 960. Nor was there
any intention to enlarge the ruling in The Venice in United States v. Padelford,
9 Wall. 531, 19 L. ed. 788.

29

The case of The Grapeshot, 9 Wall. 129, 19 L. ed. 651, is also cited by
claimants, and some of its language demands notice. The question involved was
the legality of a provisional court for the state of Louisiana, established by the
President after New Orleans and parts of the state had been occupied by the
national troops. Expressing the purpose of the national government the court
said that it was 'neither conquest nor subjugation, but the overthrow of the
insurgent organization, the suppression of insurrection, and the reestablishment of legitimate authority.' It was further said that it was the duty of
the government, 'wherever the insurgent power was overturned, and the
territory which had been dominated by it was occupied by the national forces,
to provide as far as possible, so long as the war continued, for the security of
persons and property, and for the administration of justice.' To this was added
the following: 'The duty of the national government, in this respect, was no
other than that which devolves upon the government of a regular belligerent

occupying, during war, the territory of another belligerent. It was a military

duty, to be performed by the President as Commander-in-Chief, and intrusted
as such with the direction of the military force by which the occupation was
held.'
30

But it was not intended to express a limitation upon the undoubted belligerent
right to use and confiscate all property of an enemy and to dispose of it at will.
Miller v. United States (Page v. United States) 11 Wall. 268, 305, 20 L. ed.
135, 144, The Venice, and cases like it, expressed and enforced limitations to a
certain extent upon such right growing out of the policy of the government. It
may be, as said by Kent (1 Kent, Com. 92), that 'the general usage now is not to
touch private property upon land, without making compensation, unless in
special cases, dictated by the necessary operations of war, or when captured in
places carried by storm, and which repelled all the overtures for a capitulation.'
It may also be, as further said by the learned commentator, that 'if the
conqueror goes beyond these limits wantonly, or when it is not clearly
indispensable to the just purposes of war, and seizes private property of pacific
persons for the sake of gain, . . . he violates the modern usages of war.' Id. 92
and 93.

31

If the record presented such a case, the question could be raised whether it
presented one for judicial cognizance, even if a court could share the
indignation which the learned commentator says all mankind would feel. It is
certain that the court's power cannot be enlarged by its emotions. Besides, we
must regard the seizure of the San Juan as an exertion of the war power, and by
this we do not mean as mere 'booty of war,' and the comments made in Planters'
Bank v. Union Bank, 16 Wall. 483, 495, 21 L. ed. 473, 478, in regard to an
attempt by the commander at New Orleans, fifteen months after the occupation
of the city by the national government, to confiscate the indebtedness of one of
the banks to the other, do not apply. We only mean that the seizure was for the
immediate use of the Army,a right recognized in that case, for we do not
accept the view contended for by claimants, that, with the surrender of Santiago
and the cessation of active operations in the Santiago district, enemy property
lost such character and was not subject to such right of capture. The war was
flagrant elsewhere, and in such case Planters' Bank v. Union Bank is authority
for the right, not against it. It was there decided that the military commander at
New Orleans 'had power to do all that the laws of war permitted, except so far
as he was restrained by the pledged faith of the government, or the effect of
congressional action.' Such pledge and effect existed, it was held, citing the
case of The Venice. It may be said the indebtedness was not absolutely exempt
from confiscation as enemy's property, but only that it was not, under the
particular circumstances, 'subject to military seizure as booty of war.' And

'booty of war' was distinguished from 'a seizure for immediate use of the Army.'
This is a distinction important to observe, and is recognized explicitly or
implicitly in all of the cases and references contained in the able argument of
counsel. It accommodates, when its full range is properly understood, the
necessities of the conqueror and the personal and property rights, if they may
be called such, of the conquered. And there is nothing in the President's
proclamation of July 13, 1898, which militates against it. But suppose we
should grant the contrary. Suppose we should grant to the San Juan the
broadest immunity from seizure or detention. We are then brought to consider
the quality of the act of the officers of the Army who seized and used her. It
would seem easy to describe. If it was done in violation of the President's
proclamation, if it was done in violation of the laws of war and the conditions
arising from the capitulation of Santiago, it was done in wrong, and claimants
encounter the prohibitions of the Tucker act against the jurisdiction of the court
of claims. They are in the situation of the claimant in J. Ribas y Hijo v. United
States, and Juragua Iron Co. v. United States. A tort was committed against
them, and though committed in the interest of the United States, there is no
element of contract, and the action is one of which the court of claims could not
take jurisdiction, whatever other redress is open to claimants. Indeed, we might
have rested this branch of the case on those cases, both for the requirements of
the Tucker act and the rights and powers of belligerents, conqueror or
conquered. We have restated the propositions declared only in deference to the
earnestness and force of the argument of claimants' counsel. And we rest the
case on those propositions, and do not enter into a consideration of the
citizenship of claimants, whether born in Spain and Spanish subjects when their
vessel was seized, or Cuban by relation to the time either of the declaration of
Cuban independence or of its recognition by Congress, as contended. If
Spanish subjects, under the authority of J. Ribas y Hijo v. United States, their
right of indemnity for the seizure and use of their vessel was taken away by the
treaty between Spain and the United States.
32

Judgment affirmed.