P. IOI

§ 2; § xi. tom. 1, p. 310; 3 Phill. Int. Law, 41; Wheat. Int. Law (Lawrence ed.), 512; Haver v. Yaker, 9 Wall. 32. The rule of damages is to measure the compensation by the freight which the vessel was in the act of earning. Williamson v. Barrett, 13 How. 101; The Gazelle, 2 W. Rob. 279; The Glaucus, 1 Lowell, 366; Vantine v. The Lake, 2 Wall. Jr. 52; The Narragansett, Olcott, 388; The Rhode Island, Olcott, 505; The M. M. Caleb, 10 Blatchford, 467; The Stromless, I Lowell, 153; Whitehall Trans. Co. v. N. J. Steamboat Co., 51 N. Y. 369; Mailler v. Express Propeller Line, 61 N. Y. 312. Under the circumstances complete indemnity can be given only by compensation for the loss of earnings as well as the loss of the vessel. Allen v. Fox, 51 N. Y. 562; Star of India, I Prob. Div. 466; Dermott v. Jones, 2 Wall. 1; Sturgis v. N. J. Steamboat Co., 35 N. Y. Superior Ct. Rep. 251; S. C. on appeal, 62 N. Y. 625 ; Howland v. Coffin, 47 Barb. 653. For the parallel rule at common law, see Hadley v. Baxendale, 9 Exch. 341; Phil., Wilm. & Balt. R. R. Co. v. Howard, 13 How. 307. And the order of the prize court of Aug. 22d, 1862, for the delivery of the vessel to the navy department, does not affect the right of the claimant to the whole award for demurrage up to the time of final decree. The Memphis, Blatchford Prize Cases, 202; The Ella Warley, Ib. 207; Hudson v. Guestier, 4 Cranch, 293; Home v. Camden, 2 H. Bl. 532, and 4 T. R. 383; Willis v. Commissioners of Prize, 5 East, 22; The Noysomhed, 7 Ves. Jr. 593; The Brig Louis, 5 C. Rob. 146; The Two Friends, 1 C. Rob. 271; The Eliza, 1 Acton, 336; Smart v. Wolffe, 3 T. R. 323; The Pomona, I Dodson, 25; The Peterhoff, Blatchf. Prize Cases, 620; Le Caux v. Eden, 2 Doug. 594, 610, 616; Goss v. Withers, 2 Burr. 683, 694; The Flad Oyen, 1 C. Rob. 134; The Santa Cruz, 1 C. Rob. 49; The Fanny and Elmira, 1 Edw. Adm. 117; The Ceylon, I Dodson, 105. |

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After reciting the facts as above stated he continued:

That the steamer was not lawful prize or the subject of capture was expressly decided on the former appeal. It was also impliedly settled that the capture was without probable cause, for it was said that the owner was undoubtedly entitled to a fair indemnity for the losses sustained, the only difficulty being as to the amount. These questions are, therefore, no longer open. Clark v. Keith, 106 U. S. 464; Supervisors v. Kennicott, 94 U. S. 499.

The first of the remaining questions to be considered is whether a decree can be entered against the United States for damages. As the capture was made by the army, or by the army and navy operating together, it inured exclusively to the benefit of the United States. There is no distribution of prize money in such a case. Porter v. United States, 106 U. S. 607; The Siren, 13 Wall. 389. The United States were, there

fore, in legal effect the captors, and they came voluntarily into court to secure for themselves the benefit of what had been done. They deliberately adopted the acts of the military and naval officers as their own, and came, as captors, to condemn their prize. Offers to purchase the vessel were made and declined before she was seized, and soon after the seizure she was chartered and put into actual use without any attempt at securing an adjudication. It is evident, also, that the capture must have been the subject of diplomatic correspondence between the government of Spain and the United States before the vessel was brought in for adjudication, because on the 6th of May, 1862, after the vessel got to New York, and before the libel was filed, Mr. Seward, the then secretary of State, wrote the district attorney for the Southern District of New York, as follows:

'SIR: Noticing the arrival at New York of the Spanish steamer Nuestra Señora de la Regla, which was seized at Port Royal by General Sherman for an alleged illegal breach of neutrality, I now transmit the papers found on board of her, and an abstract of them which I caused to be prepared and which you may find useful.' |

Although the libel was filed on the 9th of June, 1862, and the claim p. 102 was promptly put in, the adjudication was not had until June of the following year, when all further proceedings were stayed with the consent of both parties to await an adjustment of damages by the two governments. Nothing further was done until nearly seven years afterwards, when the secretary of State informed the Spanish government of the wish of the United States that the parties interested should apply to the court, which still retained jurisdiction, for such relief as justice demanded, and in the mode that tribunal should deem most proper and convenient. Thereupon, on motion of the claimant, and with the consent of the United States district attorney, the reference was ordered to ascertain the damages. Under these circumstances we cannot but think the United States have voluntarily submitted themselves to the court at the instance of the Spanish government, and with the consent of the claimant, for the purpose of having the questions of damages growing out of the capture judicially settled according to the rules applicable to private persons in like cases.

It is objected, however, that the executive department of the government had no power, in the absence of express legislative authority, to make such a submission. It was the duty of the United States, under the law of nations, to bring all captured vessels into a prize court for adjudication. If that had not been done in this instance, the Spanish government would have had just cause of complaint, and could have demanded reparation for the wrongs that had been done one of its subjects. The executive department had the right to bring the suit. In that suit it had been determined that the capture was unlawful. Necessarily, therefore, the question of damages to the owner of the

captured vessel arose. Since, without the consent of the United States, no judgment for damages could be rendered against them in the pending suit that could be enforced by execution, the Spanish government had the right to assume the prosecution of the claim, and it did. Necessarily the negotiations on the part of the United States under this claim were conducted by the executive. After long delay no agreement was reached, p. 103 and as a last resort for ending the controversy, it | was determined to refer the whole matter to the court for judicial inquiry and determination. We see no reason why this might not be done in such a case. It is true any judgment that may be rendered cannot be judicially enforced, but the questions to be settled are judicial in their character, and are incidents to the suit which the United States were required to bring to enforce their rights as captors. It is too late now to insist that the case is not one of prize, because in the libel it is expressly alleged that the vessel was captured as lawful prize, and condemnation was asked on that account. When, therefore, the United States, through the executive of the nation, waived their right to exemption from suit, and asked the prize court to complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission, and that it is the duty of the court to proceed to the final determination of all the questions legitimately involved.

The next inquiry is as to the amount of damages. The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum v. Mayberry, 2 Wheat. I; The Apollon, 9 Wheat. 362; The Lively, 1 Gall. 314; The Corier Maritimo, 1 Rob. 287.

Upon the facts in this case there can be no doubt of the propriety of such an allowance for the extraordinary detention of the vessel before she was delivered up for adjudication, especially since she was detained for the express purpose of use by the United States. And as to the amount of the allowance, there is no opportunity for discussion. The United States were willing and actually contracted to pay $200 a day for her use if she was not in fact lawful prize, and that is shown to have been a reasonable price for her charter at the time. She was seized on the 29th of November, and it is fair to assume that if due diligence had been used she might have been surrendered for adjudication by the 16th of December, when her charter began to run. She was not actually surrendered until the p. 104 9th of June-a delay of 175 days beyond what was necessary. It is not disputed that her value at that time was $30,000. She cost when built $50,000, and was new when captured. As she has never been restored under the order to that effect, there can be no doubt of the liability of the United States for her value, when at their request she was delivered into

their possession by the court. It is not a matter of any importance that the certificate of deposit in the treasury of the amount of her appraised value was not filed. By taking the vessel on the terms imposed by the court, the United States impliedly agreed to restore her in as good condition as she was when taken, or pay her value in money. By the surrender of the vessel for adjudication, the United States relieved themselves from any further liability for damages in the way of demurrage, and became bound for the vessel instead.

The allowance for demurrage includes reasonable compensation for the pay and expenses of an agent to look after the interests of the owners up to the time of the delivery of the vessel to the navy department by the court. After that no agent was necessary. From that time the case stood as though a sale had been made and the proceeds paid into the registry of the court.

Our conclusion is that damages should be allowed as follows: For unnecessary and unusual delay in proceeding to adjudica

To which add interest, at the rate of six per cent. per annum, from the time of the order of restitution, June 20th, 1863, until the decree. The decree of the district court is reversed and the cause remanded with instructions to enter another decree in accordance with this opinion.

The Olinde Rodrigues.

(174 U.S. Reports, 510) 1899.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.

No. 704.

Argued April 11, 13, 1899.-Decided May 15, 1899.

A blockade to be binding must be known to exist.

There is no rule of law determining that the presence of a particular force is necessary in order to render a blockade effective, but, on the contrary, the test is whether it is practically effective, and that is a mixed question, more of fact than of law. While it is not practicable to define what degree of danger shall constitute a test of the efficiency of a blockade, it is enough if the danger is real and apparent. An effective blockade is one which makes it dangerous for vessels to attempt to enter the blockaded port; and the question of effectiveness is not controlled by the number of the blockading forces, but one modern cruiser is enough as matter of law, if it is sufficient in fact for the purpose, and renders it dangerous for other craft to enter the port.

The blockade in this case was practically effective, and, until it should be raised by an actual driving away by the enemy, it was not open to a neutral trader to ask whether, as against a possible superiority of the enemy's fleet, it was or was not effective in a military sense.

P. 511

After the captors had put in their proofs, the claimant, without introducing any-
thing further, moved for the discharge and restitution of the steamship, on
the ground of the ineffective character of the blockade and because the evidence
did not justify a decree of condemnation; and in addition claimed the right
to adduce further proofs, if its motion should be denied. Held, that the settled
I
practice of prize courts forbids the taking of further proof under such circum-
stances.

The entire record in this case being considered, the court is of opinion that restitution
of the Olinde Rodrigues should be awarded, without damages, and that payment
of the costs and expenses incident to her custody and preservation, and of all
costs in the cause, except the fees of counsel, should be imposed upon the ship.
THIS was a libel filed by the United States against the steamship
Olinde Rodrigues and cargo in the District Court for South Carolina,
in a prize cause, for violation of the blockade of San Juan, Porto Rico.
The steamship was owned and claimed by La Compagnie Générale
Transatlantique, a French corporation.

The Olinde Rodrigues left Havre, June 16, 1898, upon a regular voyage on a West Indian itinerary prescribed by the terms of her postal subvention from the French government. Her regular course, after touching at Paulliac, France, was St. Thomas, San Juan, Port au Platte or Puerto Plata, Cape Haytien, St. Marque, Port au Prince, Gonaives, and to return by the same ports, the voyage terminating at Havre. The proclamation of the President declaring San Juan in a state of blockade was issued June 27, 1898. The Olinde Rodrigues left Paulliac June 19, and arrived at St. Thomas July 3, 1898, and on July 4, in the morning, went into San Juan, Porto Rico. She was seen by the United States auxiliary cruiser Yosemite, then blockading the port of San Juan.

On the fifth of July, 1898, the Olinde Rodrigues came out of the port of San Juan, was signalled by the Yosemite, and on communicating with the latter asserted that she had no knowledge of the blockade of San Juan. Thereupon a boarding officer of the Yosemite entered in the log of the Olinde Rodrigues an official warning of the blockade, and she went on her way to Puerto Plata and other ports of San Domingo and Haiti. She left Puerto Plata on her return from these ports, July 16, 1898, and on the morning of July 17 was captured by the United States armored cruiser New Orleans, then blockading the port of San Juan, as attempting to enter that port. A prize crew was put on board and p. 512 the vessel was taken to Charleston, South Carolina, where she was libelled as before stated, July 22, 1898. Depositions of officers, crew and persons on board the steamship were taken by the prize commissioners in preparatorio, in answer to certain standing interrogatories, and the papers and documents found on board were put in evidence. Depositions of officers and men from the cruiser New Orleans were also taken de bene esse, but were not considered on the preliminary hearing except on a motion by the District Attorney for leave to take further proofs.