by the statute. They participated neither actually nor constructively in the captures. The rights to share of the commissioned officers and enlisted men of the United States Navy on board these two vessels depend on other considerations. The decree of the Supreme Court of the District of Columbia on the intervening libel is affirmed. The decree on the libel is reversed and the cause remanded with directions to enter a decree in accordance with this opinion. The Paquete Habana. (189 U.S. Reports, 453) 1903. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA. Nos. 578, 579, 580, 581, 582, 583, 584. 585, 586, 587, 588, 589.1 Argued March 19, 1903. Decided April 6, 1903. This court having decided in The Paquete Habana, 175 U. S. 677, that certain Under the circumstances of this case the decree should be entered against the THE case is stated in the opinion of the court. Mr. Solicitor General Hoyt for the United States. The court is free to weigh and settle the facts here uncontrolled by subordinate findings. The inquiry is whether the court is satisfied by the whole evidence. The Vigilantia, 1 Rob. I; The Soglasie, Spinks, 104; The Carlos F. Roses, 177 U. S. 655. The Vigilantia and The Soglasie exhibit the reasonable doubt of courts respecting the certificates of national magistrates presumably complaisant toward their countrymen. Early cases in this court show that the court handles such awards with great freedom, allowing some items and rejecting others, in the exercise of its discretion. The Apollon, 9 Wheat. 362; The Lively, I Gall. 315; The Charming Betsy, 2 Cr. 64; Maley v. Shattuck, 3 Cr. 458; The Amiable Nancy, 3 Wheat. 546. The claims are excessive and unconscionable, and the evidence in support of them unsatisfactory and inconclusive. The witnesses are in p. 454 1 No. 578. United States v. The Paquete Habana; No. 579. Same v. The Lola ; No. 580. Same v. The Poder de Dios; No. 581. Same v. The Antonio y Paco ; No. 582. Same v. The Engracia; No. 583. Same v. The Severita; No. 584. Same v. The Antonio Suarez; No. 585. Same v. The Fernandito; No. 586. Same v. The Oriente; No. 587. Same v. The Espana; No. 588. Same v. The Cuatro de Settembre; No. 589. Same v. The Santiago Apostol. the highest degree interested, and the inference of a combination of interest throughout the cases is irresistible. The reappearance of the same witnesses and claimants in different cases, and the corporate relations shown suggest that the ownership of these boats and the handling of their catch constituted a sort of Havana 'fishing trust.' The interrogatories called for candid and complete answers. Forgetfulness, failure to keep books, the omission to furnish bills of sale, statements about documents which the documents do not support-these things find no excuse in the form of the interrogatories. It was for the claimants to support their claims absolutely and completely. The harbor master's certificate is given as to all the vessels on the same day, long after the final condemnation below, appraising them as of the same date prior to the war. That officer admittedly acts as an expert appointed by the two firms chiefly interested to appraise the value of their respective fishing smacks. His testimony and certificate should not be accepted as a veritable and reasonable statement of the value of the vessels. Sufficient appears fairly to require the court to reject the exaggerated claims, and, indeed, sufficient appears to enable the court, justly and understandingly to fix the point between the prices realized at the government sale and the amounts claimed, which will give restitutio in integrum. If the court thinks that a satisfactory basis of readjustment and settlement is not yet before it, then we submit that the cases should go back to the court below for further inquiry. As to the naval captors' liability, The Ostsee, Spinks, 174, fully reviews the principles and authorities. The captors seize at their peril; they take the burden and the risk along with the possible benefits. The only question is whether the claimants are in fact entitled to restitution with damages and costs. The Ostsee decided that captors are liable; that they may afterwards be indemnified at the expense of the public makes no difference in the rule. They cannot be so indemnified by means of a judgment against the United States. It is for Congress to relieve them. The cases in this court, Murray v. The Charming Betsy, 2 Cr. 64; Little v. Barreme, 2 Cr. 170; Maley v. Shattuck, 3 Cr. 458, show that the p. 455 seizors have always | been held liable for restitution in value. The distinctions and qualifications as to government exemptions from liability, The Siren, 7 Wall. 162, speak for themselves and do not comprehend the present cases. The same remark is true of The Neustra Señora de Regla, 108 U. S. 96, in which the reduction of the claim is significant, and the original hearing is instructive on the general doctrine of the government exemption from liability in the courts. The Government by its commission and war instructions authorizes capture, but does not thereby adopt the acts of its officers as its own, or condone their errors, or assume the liability arising upon their wrongful acts, however 'pure in intention' the wrong may be. Such an idea is flatly contrary to all the principles of government exemption from suit and responsibility for the acts of its officers and agents except so far as it has expressly made itself liable. The Government grants prize rights to captors, and libels on behalf of captors and itself. The Government may restore, even after libel filed, at any time before condemnation; that fact would give disappointed captors no claim against the Government. If the executive should determine to recognize a diplomatic claim (which may be interposed after condemnation) that does not summon the captors to respond. Equally, if there is a judicial decree of restitution with damages and costs, that does not call upon the Government to respond because it files the libel and is the formal party plaintiff. The captors,' that is, the actual commander of the offending vessel representing all of his subordinates, must meet the responsibility of the illegal act of seizure. Mistaken practice in the lower courts or inferences from particular acts of Congress granting indemnity cannot avail to overturn an established rule. As in England the appeal for relief is to Crown or Parliament, here it is to Congress. The courts cannot recognize that appeal by giving judgment against the United States, even if it should be a nugatory judgment not subject to execution. We urge with conviction that any award to claimants here must rest upon the various naval captors and not upon the United States. | Mr. J. Parker Kirlin for claimants. I. No sufficient ground for the reversal of the decree is shown, so far as the quantum of the damages is concerned. I. There is no serious dispute as to the principle on which the damages are to be assessed. The claimants are entitled to 'fair indemnity for the losses sustained by the seizure.' The Nuestra Señora de Regla, 17 Wall. 29, 31. The owners of the vessels being Cubans, and the vessels having been seized in Cuban waters when about to enter Cuban ports, the damages are naturally to be measured with reference to the value of the vessels and property in Cuba rather than in the United States. Bates v. Clark, 95 U. S. 204, 210. The damages to be awarded should be equivalent to the injury sustained. The Lively, I Gallison, 315; Hetzel v. Baltimore & Ohio Ry., 169 U. S. 26. This principle is impliedly recognized in the mandates issued under the previous decision, which provided that the damages should be ' compensatory.' The assessment of the damages was referred by consent to the commissioner. His conclusions, therefore, will not be disturbed, unless they are clearly in conflict with the weight of the evidence. The Elton, 83 Fed. Rep. 519, 520; Kimberley v. Arms Co., 121 U. S. 512, 524; Davis v. Schwartz, 155 U. S. 631, 636; Crawford v. Neill, 144 U. S. 585, 596; P. 456 Furrer v. Ferris, 145 U. S. 131. Even if the reference had not been made on consent, the conclusions of the commissioner on matters of fact would still be entitled to much weight. Tilghman v. Proctor, 125 U. S. 136, 149. The District Judge heard argument on the libellant's exceptions to the report, and, after consideration, overruled them and confirmed the report. The case comes before the court, therefore, with the concurrent finding of the commissioner and the court in favor of the claimants. Under these circumstances the court should decline to interfere with the amount of the decrees, unless manifest error appears. The Ship Marcellus, I Black, 414; The Conqueror, 166 U. S. 110, 136. 2. The evidence produced on the part of the claimants consisted of the depositions of the owners of the vessels and of the harbor master in p. 457 the port of Havana in relation to the value | of the vessels, and of certain disinterested fish merchants as to the value of the fish. The evidence of the libellant consisted, for the most part, of the depositions of witnesses who did not profess to have any acquaintance with the value of fishing vessel property. The commissioner heard some of the witnesses for the Government, but accepted the evidence of the claimants' witnesses as more accurate and reliable. It is contrary to the practice of the court to reverse a decree where both courts below have concurred in the decision of questions of fact, and the result arrived at depends on the number or credibility of witnesses. The Richmond, 103 U. S. 540, 543. 3. The exceptions to the commissioner's report are insufficient to raise any question as to the amount of the damages. The exceptions were: 'First, that the amount allowed as compensatory damages for the following vessels, and each of them, is excessive and not sustained by the evidence; and, 'Second, that the value of each of said vessels . . . as ascertained by the commissioner is contrary to the evidence.' No suggestion was made as to the amount which the United States attorney thought the evidence would justify as an allowance for compensatory damages. Exceptions expressed in almost identical terms were held to be insufficient in The Commander-in-Chief, 1 Wall. 43, 50. 4. The status of the claimants does not affect their right to receive full compensation. Even if the claimants were technically in the position of enemies at the time of the captures, the court has, nevertheless, determined that their property was entitled to exemption from capture. In awarding compensation, therefore, the property is to be dealt with in the same manner as the property of friends. If its value was enhanced by reason of the war, that fact would not be material in measuring the damages except as showing the values current at the time when the right to compensation accrued. The right to compensation has been determined, and the damages are to be measured by the value of the property at the time of the capture, with interest and costs. If that value was enhanced by the military or naval operations of our Government, the claimants are, nevertheless, | entitled to be paid at the enhanced amounts; p. 458 for they represented the value which the property would have possessed, and at which, presumably, it could have been disposed of, but for the unlawful capture and condemnation. These observations apply alike to the valuations of the vessels, and to the current price for the fish, at the time of the capture, as to which there is no dispute. 5. There was no error in the award of interest, or the rate at which it was allowed. No question on that subject, however, is properly before the court. There was no exception to the report of the commissioner as to the rate of interest, or as to the propriety of allowing it. Nor is there any assignment of error to the final decrees on this subject. Without any exception or assignment of error on the subject, no question relating to interest appears to be before the court. The Commander-in-Chief, I Wall. 43. Interest has always been allowed in cases of this class, not only against private captors, but against the United States. The Apollon, 9 Wheat. 362, 376, 379, 380; The Charming Betsy, 2 Cranch, 64, 125; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 Wheat. 546, 562, 563; The Nuestra Señora de Regla, 108 U. S. 92, 104. The records in the cases of The Labuan, Blatchford's Prize Cases, 165; The Glen, Blatchford's Prize Cases, 375; The Sybil, Blatchford's Prize Cases, 615, show awards of interest against the United States and the captors jointly. The allowance of interest was within the fair scope of the mandates as a part of the compensatory damages' to be recovered. In allowing the legal rate of eight per cent, which prevails by statute in the Southern District of Florida, the court followed the practice which is sanctioned by this court. Texas & Pacific Ry. Co. v. Anderson, 149 U. S. 237, 242; The Conemaugh, 189 U. S. 363; Huey v. Macon Co., 35 Fed. Rep. 431; I Sedgwick on Damages, 8th ed. sec. 339. There can be no presumption that the rate of interest in Cuba, during or immediately following the war, when financial conditions were, notoriously, in an extremely unsettled condition, was less than the legal rate prevailing in p. 459 the district in which the final decrees in these cases were entered. II. The District Judge committed no error in deciding that the compensatory damages awarded to the claimants under the mandate of this court were payable by the United States. 1. It appears to have been determined by the previous decision of the court that the compensatory damages awarded are to be paid by the United States. It would seem that the only parties to these causes are the United States on the one hand, and the claimants of the vessels on the other. |