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Williamson et al. v. Barrett et al.

In the next place, the collision occurred on the Ohio River, and the rules of law applicable to the controversy must accommodate themselves to that navigation.

The injured boat was sunk, and the plaintiffs declared for a total loss; but it came out in evidence, that she was raised and repaired, and again commenced running the river. On this state of facts the jury was charged: 1st. That damages should be given for raising the boat: 2d. For repairing her: and 3d. Also damages in addition, "for her use, during the time necessary to make the repairs and fit her for business."

The expression "for her use," must mean either the clear profits of her probable earnings; or, how much she could have been hired for to others during the time of her detention. Both propositions come to the same result, to wit: how much clear gains the owners of the Major Barbour, could have probably made by their boat, had she not been injured, during the time she was detained in consequence of being injured. This probable gain, the jury was instructed to estimate as a positive loss, and to charge the defendants with it.

The suit is merely for loss of the boat, and has no reference to the cargo. It does not appear that she had either cargo, or passengers; nor does the evidence show in what trade she was engaged.

In cases of marine torts, no damages can be allowed for loss of a market; nor for the probable profits of a voyage. The rule being too uncertain in its nature to entitle it to judicial sanction. Such has been the settled doctrine of this court for more than thirty years.

In the case of the Amiable Nancy, 3 Wheat. 560, when discussing the propriety of allowing for probable loss of profits on a voyage that was broken up by illegal conduct of the respondents' agents, this court declared the general and settled rule to be, that the value of the property lost, at the time of the loss; and in case of injury, the diminution in value, by reason of the injury, with interest on such valuation, afforded the true measure for assessing damages: "This rule," says the court, "may not secure a complete indemnity for all possible injuries; but it has certainty, and general applicability to recommend it, and in almost all cases, will give a fair and just recompense." And in the suit of Smith v. Condry, 1 How. 35, it is declared, that in cases of collision "the actual damage sustained by the party, at the time and place, of the injury, is the measure of damages." that case there was detention as well as here, but it never occurred to any one, that loss of time could be added as an item of damages. In other words, that damages might arise after

In

Williamson et al. v. Barrett et al.

the injury and be consequent to it; and which might double the amount actually allowed.

The decision found in 3 Wheat. was made in 1818, and I had supposed for many years past, the rule was established, that consequential damages for loss of time, and which damages might continue to accrue, for months after the injury was inflicted, could not be recovered; and that there was no distinction in principle, between the loss of the voyage, and loss of time, consequent on the injury.

The profits claimed and allowed by the Circuit Court, depended on remote, uncertain, and complicated contingencies, to a greater extent, than was the case, in any one instance, in causes coming before this court, where a claim to damages was rejected for uncertainty.

Here, full damages are allowed for raising the boat, and for her repairs. To these allowances no objection is made; it only extends to the additional item for loss of time. That the investigation of this additional charge will greatly increase the stringency, tediousness, and charges of litigation, in collision cases, is manifest; nor should this consideration be overlooked. The expense and harassment of these trials have been great when the old rule was applied; and, the contest, if the rule is extended, must generally double the expense and vexation of a full and fair trial. Nor will it be possible, as it seems to me, for a jury, or for a court (where the proceeding is by libel) to settle contingent profits, on grounds more certain, than probable conjecture. The supposition that the amount of damages can be easily fixed, by proof of what the injured boat could have been hired for on a charter-party, during her detention, will turn out to be a barren theory, as no general practice of chartering steamboats, is known on the western rivers, nor can it ever exist; the nature of the vessels, and the contingencies of navigation being opposed to it. In most cases, the proof will be, that the boat could not have found any one to hire her; and then, the contending parties will be thrown on the contingency, whether she could have earned something, or nothing; little, or much, in the hands of her owner, during the time she was necessarily detained; and this will involve another element of contention of great magnitude; to wit, whether she was repaired in reasonable time. Forasmuch as no necessity will be imposed on the owner to bestow the repairs, as is now the case, he will rarely, if ever, do so; and having the colliding boat and her owners in his power, gross oppression will generally follow, in applying this new and severe measure of damages to western river navigation.

In a majority of cases of collision on the western waters, par

Mitchell v. Harmony.

tial injury, repairing, and detention of the injured boat occur. Contests before the courts have been numerous where the precise question of compensation here claimed was involved, and yet in an experience of twenty-five years, I have never known it raised until now. The bar, the bench, and those engaged in navigation, have acquiesced in the rule, that full damages for the injury at the time and place when it occurred, with legal interest on the amount, was the proper measure; nor do I think it should be disturbed; and that therefore the judgment of the Circuit Court should be reversed, because the jury were improperly instructed, in this particular.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered, and adjudged, by this court, that the judgment of said Circuit Court, in this cause, be, and the same is hereby affirmed with costs, and damages at the rate of six per centum, per annum.

DAVID D. MITCHELL, PLAINTIFF IN ERROR, v. MANUEL X. HAR.

MONY.

In some of the States it is the practice for the court to express its opinion upon facts, in a charge to the jury. In these States, it is not improper for the Circuit Court of the United States to follow the same practice. During the war between the United States and Mexico, where a trader went into the adjoining Mexican provinces which were in possession of the military authorities of the United States, for the purpose of carrying on a trade with the inhabitants which was sanctioned by the executive branch of the government, and also by the commanding military officer, it was improper for an officer of the United States to seize the property upon the ground of trading with the enemy. Private property may be taken by a military commander to prevent it from falling into the hands of the enemy, or for the purpose of converting it to the use of the public; but the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. The facts as they appeared to the officer must furnish the rule for the application of these principles.

But the officer cannot take possession of private property for the purpose of insuring the success of a distant expedition upon which he is about to march. Whether or not the owner of the goods resumed the possession of them at any time after their seizure, was a fact for the jury. In this case, they found that he lid not resume the possession and in this they were sustained by legal evidence.

The officer who made the seizure cannot justify his trespass by showing the orders of his superior officer. An order to commit a trespass can afford no justification to the person by whom it was executed.

The trespass was committed out of the limits of the United States. But an action for it may be maintained in the Circuit Court for any district in which the defendant may be found upon process against him, where the citizenship of the respective parties gives jurisdiction to a court of the United States.

Mitchell v. Harmony.

Under the 18th rule of this court, the mode of calculating interest, when a judgment of the Circuit Court is affirmed, is to compute it at the rate of six per cent. per annum, from the day when judgment was signed in the Circuit Court until paid. (See report of the clerk and order of court at the end of this case.)

THIS case was brought up, by a writ of error, from the Circuit Court of the United States for the Southern District of New York.

Mitchell was an officer of the army, and was sued in an action of trespass by Harmony for seizing his property in the Mexican State of Chihuahua.

By an act passed on the 3d March, 1845, (5 Stat. at Large, 750) Congress allowed a drawback on foreign merchandise exported in the original packages to Chihuahua and Santa Fé, in Mexico. Harmony was a trader engaged in this business, and on the 27th of May, 1846, had transported to Independence, in Missouri, a large amount of goods imported under this law, and in conformity with the regulations of the Treasury Department. On the 27th of May he left Independence, with several other traders, before the. passage of the act of Congress of 13th May, recognizing the existence of war with Mexico, was known there.

The whole history of Colonel Doniphan's expedition was given in the record, being collected from official documents and the depositions of persons who were present. A brief narrative is given in the opinion of the court of all the facts which bore upon the present case.

The declaration was in the usual form and contained three counts, all of them charging the same trespass, namely, that the defendant, on the 10th of February, 1847, at Chihuahua, in the Republic of Mexico, seized, took, drove, and carried away, and converted to his own use, the horses, mules, wagons, goods, chattels, and merchandise, &c., of the plaintiff, and compelled the workmen and servants of the plaintiff having charge, to abandon his service and devote themselves to the defendant's service. The property so alleged to have been taken is averred to be of the value of $90,000, and the damages, $100,000.

Besides the general plea of not guilty to the whole action, the defendant, Mitchell, pleaded several special pleas.

1st. That war existed at the time between the United States and Mexico; that he was a lieutenant-colonel, &c., forming a part of the military force of the United States, employed in that war, and under the command of Colonel A. W. Doniphan, and he justifies the taking, &c., under and in virtue of the order, to that effect, of his superior and commanding officer, Colonel Doniphan; that the order was a lawful one, which he was bound to obey, and that he was no otherwise instrumental in the alleged trespass.

Mitchell v. Harmony.

2d. Alleging the same preliminary matter, avers that the plaintiff, Harmony, was a citizen of the United States, and, with a full knowledge of the war, had gone with his wagons, merchandise, &c., into Mexico with design to trade with the people of Mexico, and to afford aid to the same in said war; that said Doniphan, as he had a right to do, commanded the defendant to seize, take, &c., the said wagons, &c., and that he did, in obedience to said order take, &c., doing nothing more than was necessary to the execution of that order.

3d. With the same preliminary matter as in the second plea, justifies the taking by his own (Colonel Mitchell's) authority as an officer.

The three special pleas above stated are to the first count of the declaration.

To the second count the defendant pleaded of like effect with the above; and three like pleas were plead to the third count. To the three first and three last pleas, that is, the pleas to the first and third counts, issues were joined to the country.

To the special pleas to the second count, the plaintiff replied as follows, to wit:- To the first, that the said Doniphan did not command the said horses, wagons, &c., to, be stopped, taken, &c., nor were the same taken in contemplation of any proceeding in due course of law for any alleged forfeiture thereof, but to apply the same to the use of the United States without compensation to the plaintiff, of which the defendant had

notice.

To the second, that the plaintiff did not carry his goods, &c., out of the United States, for any purpose of trading with the enemy, or elsewhere than in places subdued by the arms of the United States, and by license and permission; and that said Doniphan did not command the defendant to take the same for or on account of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but to apply the same to the use of the United States, without compensation to the plaintiff.

To the third, that he did not, after notice of the war, carry his goods into Mexico, "except to and into such place and places as had been, and was, or were captured, subdued, and held in subjection by the forces of the United States," &c., and by the permission of the commanding officer of said forces; nor with design to carry on any friendly intercourse or trade with the citizens of Mexico hostile to the United States; and that the defendant did not, in the performance of his duty as lieutenantcolonel, seize, take, &c., said property, by reason of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but the same was taken by the defendant of his own wrong, &c.

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