\\ 1 A = S= r- A — = V> = ^ ^— m ^ 33 ^ ^ 3D ■^ m 5 ^ =r o 1 ^ — > ^— r — / ^ = m — 33 3 = = J. = 3) = ^ -n = ^ ^ S I^ u Argunent , . , Before the Goinmlttee on the Judiciary by Edgar P, Brown k 03IAI3a fo^ ARGUMENT OF EDGAR F. BROWN, ^ BEFORE THE Committee on the Judiciary OF THE House of Representatives, at Washington, Jaxuaky 28th, 1876, ON BEHALF OF CERTAIN Claimants under the Geneva Award. NEW YORK: p. F. McBKEEN, Pkintek, 14 & 10 Ann Stkeet. > » •_ e • • • • "• • •• • • • m • • • • • • ••• • .•< ••• • rx AKGU3IE^T BY EDGAR F. BROWN Before the Committee ox the Judiciaky of THE House of Repeesextatiyes at Wash- ington, January 28, 1876, on behalf of Claimants to the Fund paid by Great Britain to the United States under the Geneva Award. Mr. Clmlnnan and Gentlemen of tlie Committee: (^ I liave listened with interest to the arguments which liave been made before von on behalf of the V various claimants to the fund paid by Great Britain ^ to the I'nited States under the Geneva Award. \ These claimants have arranged themselves under ^ two classes, the one asking to be indemnified for ^ actual losses sustained., and the other to receive "^ about five millions ofch)llars which is to be added to "^ Xirofits alread}^ received, growing out of the ^ hazard of insuring owners of vessels and cargoes ^' against loss by the so called "confederate cruisers" . during our late civil war. "^ It is apparent that all persons who have received ^ no remnneration for their losses are entitled to be 1 first paid fiom this fund, unless a special trust or intei-est attaches to it in favor of the underwriters as insurers, who have been large gainers by the , business of insuring against these war risks — Documentary Evidence of the nature of the claims 425768 o })i'osuiit('cl by tliis Ci()\ fniniciit a^aiiisl JMiii'lniHl before the Tiibiiiial of tliein-oceediiigs had before it and of the iiatmc of tlie award made by it has been so fully set forth and cited in tlic i)rinted arguments of counsel already before you, that it would seem needless for me to do more than made reference to such of them as may bear upon the question of tlie obligation of the United States in ivlation to tlie di sirihutiort of tliese ni()ne3-s. From my reading of these documents, and in listening to the arguments made befoj-e you by representatives of all claimants, I find that we all substantially agree to these facts, viz., that the arbitration v^^'A^ wJwlly irtternatiorudm its charac- ter and jurisdiction, that the ])]incipal claims against Great Britain were based upon national grounds, consisting of tlie alleged riolafion hij England of her ohllgat'ions as a nentTal government towards the United States in the loo //a.^ti/ recogni- tion of a state of belligereiu-y. whicli was the prin- cii)al and initial cause of all the losses sustained by any of the claimants. That no specific claims were adjusted. That claims of i/z/elmcr iters' Avere e:v- presslf/ reserved. And, linally, that a sunt in gross was i)aid as damage to the Ignited States, which tiiat Government insisted should be ])aid disciicum- bered of rrr/g Iriisl, and with full ])ow(M- t(» distrib- ute it amongst its cirizcns who suffered loss as it should (h'ciii ('Xj)edient and just. aiirilain under the (iciu'va Award is, wh(.'th«'r it is at liberty to indemnify the loyal citizens (ff Amci-ica for actual /o.v.sv^v sustained by the acts of tln' Confederate cini.sers, British built, or receiving aid in men, armament and pro- visions in British ports, or whether tliis Government is obligated in law or in equity to pay these moneys to corporations that have made large profits in the business of insuring against war risks. These cor- porations are the only claimants before you who are not losers, and their claims are resisted by all others upon this ground alone. The claims of underwriters are made u}ion the ground that the Tribunal found Great Britain liable only for the acts of the Alabama, Florida, and Shenandoah after leaving Melbourne; while the records of the proceedings show that nearly all of the cruisers that caused the damage for which redress is now sought, received in a greater or less degree aid in men, armament and supplies in British ports. The Florida, Alabama, Georgia, Tallahasse, Chickamauga, and Shenandoah were Britisli built cruisers, three of which, the Ala- bama, Georf/ia, and Slienandoali were never in a port of the Confederates States. All the other vessels, except the Boston, Jefferson Davis, Sallie and one or two others, had received aid from Britisli subjects in British ])orts. The claims for damages by those vessels only were excluded upon the "■round that there was no evidence to sustain them. The damage done by the Alabama and her tenders reached the enormous sum of 87,050,293.76; by the Shenandoah, §6,656,838.81; and by the Florida, $4,293,869.60; by the Chickamauga, $183,070.73; by the Georgia, $431,160.72; and by the Tallahasse, $830,841.83. These claims were subject to large reductions including prospective earnings, double claims for the same loss, &c. ; but this aggregate of claims presented before the Tribunal of about $20,000,000 for losses occurring by the acts of British built vessels will show how diminutive were the losses snstnined by n\u-U vessels as luid lun-ei- reached a British port. It was by rensoii of the plain Tiohdion of the duties of a iieiitial nation in furnisliing this aid, that Great Britain was called to account. It was shown that her too ^9rfc//?//a/(? recognition of belligerent rights was the initiatory and real cause of all these losses. England was not, therefore, exculpated from the payment of a large portion of these claims for loss ui)on the ground that her subjects did not furnish the means of destruction in her own. ^jorts., Init upon the giound that our government failed to ojjb-iallii notify her of the acts complained of in time to liold her responsible ;is ;i nation for ])ermit- ting the wrong. If (mr Government was at all in fnult in this respect how reasonable tliat in accepting a gross sum, in full satisfaction of all t\w. claims now repi-e- sented before this Committee and presented before the Geneva Tribunal, it should insist U])on tlie right to distribute the money amongst its citizens according to equity and justice^ thus protecting all wiio had suffered loss before granting an y indemni- ty to those who had been so fortunate as to realize large projlts hy the hazaid of insuranc*' against war risks. Mr. Fish, in his letter of iiisl inciioiis, says. "The ''Pi'esident (h-siirs nic to h.-ixc t hesubject discussed "as one bet wt'cn t he two (iovei-nnicnts * * '^ "to secure W possilih the :iw:ir(l ol" ;i sum in u,ross. "And in t he t renrnieut of the/v/Z/yr ciise you will be "caieful 110/ to coniuiit the (TO\'ei-nuieut iistothe "dis])ositioii of ^\ll:lt in;iy be Mwarded. 'i'JM> ''C^)^■e)•nment wishes to hold il>«lf fn'C to decide as "to the rig/ds and chiiins t)^ insnrii's. \\ fhe \;due "of the ])ro])ei'ty ciijit u red (udest royi'd I )e ivcdxci-id 5 "in the name of the Government, the distribution of "the amount recovered will be made by tliis Govern- "ment without committal as to the mode of distribu- tion." It is 7iot denied that these instructions were received by the counsel, that the case was thus pre- sented and that England acquiesced\iit\iQ: demand, Jind a sum loas aicardedm gross iclthout calculation as to any item, under the Itli article of tlie treaty, in satisfaction and discliar ge of all the claims presented, and all that might exist on behalf of the United States, or its citizens, wiiich grew^ out of the causes which had to the arbitration. Our Govern- ment then received the money with the right con- ceded to distribute it as though it came from its own Treasury^ disencumbered of any trust or obli- gation to disburse it amongst any particular class of claimants and entirely free to do justice to all. Mr. Cushing, counsel for our Government, in his book upon Alabama claims, says : " The awaid is to the United States, in conformity "with the letter of the treat}', which has for its " well-delined object to remove and adjust com- " plaints and claims on the part of the United "States." "But the history of the treaty and of the arbi- " tration, show^s that the United States recover, not "for the benefit of the American Government as " such, })ut of such individual citizens of the United " States as shall appear to have suffered loss by the "acts or neglects of the British Government. It is "however, he says, Tioi^ special trust legally af- ^■'■fected. to any particular claim or claimants, but "a general fund to be administered by the United " States in good faith, in conformity with theiv oioji "conceptions of justice and equity, iDithin the range " of the award. * * Nor does the tribunal 6 "define affiiniatively wliat cluinis sliould be satis- "fied otlierwise than in tlie e()nii)relienaive terms of "tlie awai-d, wliicli declares tliat the snm awarded "is 'the indemnity to be paid b}^ Great Biitain to " the United States for the satisfaction of all tlie " claims referred to the consideration of tln^ tribu- "nal, conformably to the ])rovision8 contained in " artich^ l'//of the aforesaid ti-cnity/'' He fnrther says. "The arbitrators, be it observed, do not say "for the satisfaction of certain specific clainis "among those referred to the consideration of the "tril)nnal, Init of ^ all the claims'' so referred con- "formably to the provisions of the treaty." This wonld seem to be a fail- statement and view of the situation of the fund in tpu^stion and the doctrine of subrogation invoked on behalf of un- derwriters has no application to the case ju-esented before you. The ownei- of the propei'tj destroyed by the Alabama, Florida oi- Shenandoah, has no in- terest in the fnnd Avhich he could enforce, if unin- snred, either in the courts or by international law. it was not })aid as Jiis nioxcy. The Government refused to receive it as sncli. il'he :i|)])lication for relief is now made by all t he claimants asa yratuil y. ir a])])ro])riate(l it must be Aow^^uw gratia and ujion no otiier ])rinci])le. The law of subrogation gives Ww insurer who stands in the ichition of surety hi his princi/xtl when he pays the toss the right to the ])i'operty in- sured after abandonment, as also the riyht dictum of any wiitei- on international law, has been cited to that ell'ect. In fai-t our uiu- 7 nicijycdlaio prolilhits the maMny of such a claim, and any claim npon this nation through Congress for indemnification could rest only upon the duty of the Government to protect its citizens which is answer«^d in this case by the fact that all reasonable diligence was used and therefore the application must be ex gratia for such reparation as the Govern- ment ma}' deem proper to grant. The decision in the case of Comegys v. Yasse, (1 Peters. 193). and kindred cases cited in behalf of the underwriters to substantiate their right by sub- rogation, was based upon the fact that by the 7th ssction of the treat}' with Spain, the clawis of tJie citizen were recognized. The treaty recited that as the municipal law was inadequate ''a full and com- " plete compensation will be made by the British *' Government to the com/plainants^'''' No such provision is contained in the treaty relating to Ala- bama Claims, and the case cited is not an authority establishing any right in the insurance companies to this fund. Tlie comi)anies however ask you to apply a doc- trine which a court could not enforce in order that you may do a gross injustice, viz. to add to their eiiormoiis 'profits at the expense of the very persons through lolioni these profits were derived, and who have not only lost the money they were compelled to pay for protection, but other large sums in the interuption and diversion of their trade. The question which you are free to determine be- tween these claimants is, whether those who have lost nothing but are lai-ge gainers b}^ the misfor- tunes of others, ought to be paid an additional profit, to the exclusion of persons who are actual sufferers and losers, and who have received no re- muneration for their losses. This is the precise sit- 8 nation and relation of tlie claims of the nnmerous merchants I represent to those of the nnderwriters. If it be said that the payment of these war premi- nms was a measure of fear or coioardice, I answer that no merchant could have continued his buisness a month without insuring agjiinst war risks, he could not obtain a dollar's worth of goods at home or abroad on credit, without a clean policy against this risk for the benefit of his creditor, as no mer- chant was independent of credit. The courts early decided that the underwriter was not liable for loss upon a polic-y for maiine risks, when the loss occui-red by the acts of Con- federate cruisers. The shipper was then compelled to insure against war risks, increasing the expense of insurance three-fold. It has been said that the merchant x)ay].ng these excessive rates charged th(Mn in the cost of his o-oods and lost nothing. This allegation is in no sense true. A large portion of the American canying trade was tianslerred to neutral bottoms insuretl at ordin- ary rates, as these vessels wei-e free from danger of capture, and coinpetitioH tliiougli this cliannel refutes the idea that any merchant could control the market pi'ice of the world \\\ Ji ix Jitic (f iner- cliandifihir/^ there was no niono])oli/ing jjower to that extent in the hands of any one who now makes claim to this fund. The underwriters expr<»ss their willingness in ask- ing for tJie balance of this I'mid to conline them- selves to the acts of the Alabama, Florida, and IShenandoah after leaving Melbourn(^ because the Geneva Tribunal found England at fault as regards these vessels only, although their losses by all the vessels have been ])i-ovide(l for. They claim that the money was paid to indenmiry the persons who 9 lost by these vessels, while the other claimants are losers by all, or nearly all the cruisers, and there- fore should be first paid, ignoring- the facts that the great arbitrataion was chiefly constituted for the set- tlement of international rights. That the subject of money damage was incidental and as far as possible avoided bv our Government. That while by the tenth article of the treaty assessors might have been ap- pointed to prove specilic claims, the money was paid as a gross sum under the seventh article, in satisfaction not of insurance claims or war pre- niium claims, (for both these claims were rejected for being doubly presented,) or any particular class of claims, but of any and all just claims of the nation and of its citizens, with the right of distribu- tion ahsolutely and unqualifiedly resting with our Government to which it was paid, and while actual sufferers mi (/lit, England could not complain even though the United States should cover this money into the treasury for the nation's benefit. The right oi claimants to this fund does not depend on the question of the negligence of the English Government in letting the three vessels escape, but upon the facts that cdl the vessels that destroyed the property and created the losses, did receive aid and sitpport in men, provisions and armament in British ports; and hut for this and the too early recognition of belligerent rights by Great Britain as a neutral ])ower, all these evils wottld have been averted. It seems to me that the plain dut}' of Congress is to apportion the fund amongst these claimants according to the merits of each case^ withottt reference to the particular acts of the Alabama, Florida, or Shenandoah, if his claim arises from the act or acts of anj^ vessel receiving aid from British IT) 'ports. It was tlic duty of onr Govei-nmeiit to pro- tect tlie persons and property of its eitiz(Mis wliile engaged in lawful commerce upon tlie liigli seas to the extent of its power. Its inahility to do so was a source of regret and mortification, and tlie wrongs tliat its citizens Lave suffered by this inability and which have thus far gone unnnlressed, may now be rtpaired by the Just distribution of the money paid by England as part rei)aration for her wrongs. The actual sufferers now asking to be paid their losses, are the persons who were compellinl to pay large sums for tlie protection of their pro})erty as I have stated, and those who have suffered iu tin- class re])resented by Mr. Metcalf, llirough the acts of vessels otliei than the Alabama, Florida, and Shenandoah, and while his loss was caused b}' the actual destruction of his yn-operty which was unin- sured, he choosing to take a risk, the class of claim- ants I I'epresent coidd not tal'e ike risJx and were compelled to pay for protection; both are losers of amounts clearly ascertainablymid equally entitled to be paid from this fund. Section 12 of the act, distributing a portion of the fund, i)i'Ovides for the payment of all ^/r///m-2,' i:)(n203) l-WIVERSITY of CALIFORNU AT LOS ANGELES LIBRARY AA 000 517 300 t a o — plea^'e: do not remove THIS BOOK CARdS =3 Ml University Research Library a » 8 it » a t s B V u » s « £ 6 ^8 > ^^1 lU w