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Opinion of the Court.

of the capture, Lieutenant Cushing was not entitled to prize money in proportion to his rate of pay, but only as commander of a single ship to one tenth of the prize money, and had therefore received $30,927.84 more than he was by law entitled to; and that Howarth and Gay were entitled to prize money only in proportion to their rate of pay as acting master's mates on the daw of the capture, and not according to the pay of the grades to which they had since been promoted, and had therefore received, Howarth $18,979.02 and Gay $11,801.52, more than they were respectively entitled to; and that by the amount of these three sums, or $61,708.38, the other twelve captors bad received less than they were entitled to; and gave judgment for each of them, or their representatives, accordingly. 19 C. Cl. 51.

The name, rank and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize pro ceedings, the amount which each should have received in the opinion of the Court of Claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:

Name and rank.

Pay.

Prize Pro-
ceedings.

Court of
Claims.

Due.

$14,691 30

11,801 00 11,301 00

Wiliam B. Cushing, lieutenant.....
Francis H. Swan, acting ass't paymaster
William Stotesbury, third ass't engineer..
Charles L. Steever, third ass't engineer.
William L. Howarth, acting master's mate..
Thomas S. Gay, acting master's mate.
John Woodman, acting master's mate..
Samuel Higgins, first-class fireman..
Richard Hamilton, coal-heaver..
Ecward J. Houghton, ordinary reaman.
Bernard Harley, ordinary seamnan.
William Smith, ordin: ry seaman..
Robert H. Kiny, land man
Henry Wilkes, landsman..
Lorenzo Deming, landsman.

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5,424 48 4,068 35 2,712 23 2,169 79 2,169 79 2,169 79 1,900 22 1.900 22 1,900 21

168

168
168

[blocks in formation]

61,708 88

The present suit is brought under the act of August 8, 1882, ch. 480, by one of the subordinate officers of the launch who had not been promoted since the capture of the Albemarle. The question whether he has heretofore received less than his

Opinion of the Court.

lawful share of prize money depends upon the question whether larger shares than the prize act allowed have been awarded and paid to Lieutenant Commander Cushing, and to Howarth and Gay, who, at the time of the capture, were two of his acting master's mates.

The prize court held that Cushing was entitled to share according to rate of pay with the other officers and men on board the launch. The Court of Claims held that he was entitled to one tenth of the prize money as commander of a single ship. The question which of these views was correct depends upon the rules laid down in section 10 of the prize act of June 30, 1864, ch. 174; 13 Stat. 306.

By those rules, all commanding officers have certain fractional parts of the prize money; and none of them have, or can elect to take, a share proportioned to their pay. By rule 4, there is to be paid "to the commander of a single ship one tenth part of all the prize money awarded to the ship under his command, if such ship at the time of the capture was under the command of the commanding officer of a fleet or squadron, or a division, and three twentieths if his ship was acting independently of such superior officer.” By rule 2, to the commanding officer of a division is to be paid one fiftieth part of any prize money awarded to a vessel of his division, unless he elects to receive instead the share due to him as commander of a single ship making or assisting in.a capture, that is to say, one tenth. And by rule 1, the commanding officer of a fleet or squadron receives in all cases one twentieth of all prize money awarded to vessels under his immediate command. So, by rule 3, the fleet captain receives one hundredth part of prize money awarded to vessels of the fleet or squadron in which he is serving, with the single exception that when the capture is made by the vessel on board of which he is serving, he shares, in proportion to his pay, with the other officers and men on board. It is only after the foregoing deductions,” that rule 5 directs that“ the residue shall be distributed and proportioned among all others doing duty on board (including the fleet captain), and borne upon the books of the ship, in proportion to their respective rates of pay in the service.” 13 Stat. 309, 310.

Opinion of the Court.

Those rules would seem to have been framed upon the theory that in making general regulations for the distribution of prize money it is more just and equitable, and more suitable to the rank of commanding officers, to grant them a certain fractional part, than to determine their shares by their rates of pay, like subordinate officers and men; and upon the supposition that the fractional part awarded to the commander of a single ship will usually be more than equivalent to a share pro pomioned to his rate of

pay. But whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming within their terms, and are the only guides of all courts and officers charged with the duty of administering the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying disabled in his berth; and the share of the admiral commanding the squadron is not increased if the capture is made by his flagship, nor diminished if is made without his participation or knowledge by another ship bilonging to his command. Lumley v. Sutton, 8 T. R. 224, 229; Pigot v. White, 4 Doug. 302; S. C. 1 H. Bl. 265 note ; Dr. Lushington, in The Banda & Kirwee Booty, L. R. 1 Adm. & Eccl. 109, 250; Decatur v. Chew, 1 Gallison, 506; 11 Opinions of Attorneys General, 9, 94. The courts cannot depart from the express law, because of the peculiar bravery or merit of the captors, or any of them, in a particular case. The Atlanta, 3 Wall. 425, 433; Porter v. United States, 106 U.S. 607, 611; The Joseph, 1 Gallison, 545, 561; The Anglia, Blatchf. Prize Cas. 566.

We can have no doubt that the launch which took the Albemarle was “a single ship,” within the meaning of the rules of distribution in the prize act of 1864.

In those rules, the words “single ship” are used in contradistinction to the words “vessel or vessels,” which include more than one; and upon a view of the whole act, it is manifest that the word “ship,” in the few instances in which it occurs, has no restricted sense, implying three square-rigged masts, or any masts at all, but is synonymous with the general

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Opinion of the Court.

words “vessel of the Navy," or simply “vessel,” as used throughout the act, and comes within the definition of $ 32, by which in the term “vessels of the Navy” are to be included for the purposes of this act, all armed vessels officered and manned by the United States, and under the control of the Department of the Navy. 13 Stat. 315. In the re-enactment of the fourth rule in Rev. Stat. § 4631, the words “commander of a single vessel” are substituted for “commander of a single ship.”

Nor is it material that there was no affirmative proof that the launch had any books. The keeping of books is not made a condition of the right of any vessel to share in prize money. The books of a ship are but the usual evidence of service on board; and neither the omission to keep books, nor the neglect of the proper officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such duty, from participation in prize money awarded to the ship. It is found as a fact that Lieutenant Cushing had been detailed by the proper authorities from the ship which he had previously commanded ; and as to the other officers and men, the doing duty on board is sufficient prima facie evidence, at least, that they belonged to the launch, and were entitled to share in the prize money. In Wemys v. Linzee, 1 Doug. 324, cited for the United States, the captain of marines, who was denied an officer's share, was no part of the complement of the ship. See Mackenzie v. Maylor, 4 Doug. 3.

The launch being a single ship, within the meaning of the prize act, her commander, as well as her other officers and her crew, was entitled to prize money according to the fourth and fifth rules of distribution therein prescribed.

The prize court therefore erred in awarding to her commander, instead of his one-tenth of the prize money, à share proportioned to his rate of pay.

Another error occurred in the distribution of the prize money, by order of the Secretary of the Navy, to Cushing, Howarth and Gay, according to the rates of pay of the grados to which they had been promoted since the capture. Although prize money is, strictly speaking, a matter of bounty and not of

VOL, CXIII-48

Opinion of the Court.

right, and no one has any absolute title to it before adjudication, yet unless the government, acting through the proper department, has clearly manifested an intention to revoke the grant, or to alter the mode of distribution, it is to be awarded and distributed according to the laws in force and the facts existing at the time of the capture. The Siren, 13 Wall. 389; The Elsebe, 5 C. Rob. 173; Stevens v. Bagwell, 15 Ves. 139, 152; Pill v. Taylor, 11 East, 414, and 8 Taunt. 805; 11 Opinions of Attorneys General, 102. The direction in the prize act to make distribution among inferior officers and men

according to their respective rates of pay in the service" naturally implies the rates of their pay at the time of the capture, by relation to which the subsequent distribution is made; and not those rates as affected by promotions after the capture and before decree or distribution, although such promotions, so far as affects rank, and possibly ordinary pay, date from the day of the capture. To hold otherwise would be to leave the shares of prize money, not only of the persons promoted, but also of all others on board and entitled to share according to rate of pay, subject to be varied in consequence of delay in obtaining distribution.

For these reasons, this court concurs in the conclusions of the Court of Claims as to the shares of prize money which the officers and crew of the launch were entitled to receive under the prize laws in force at the time of the capture. The inequitable operation of those laws, as applied to a capture by a vessel having so small a number of officers and men as this launch, by which the leader of the enterprise obtains less prize money than a paymaster or an engineer under his command, is a matter for the consideration of Congress, and not of the courts.

The report of the Committee on Naval Affairs of the House of Representatives, accompanying the bill which was afterwards passed as the act of August 8, 1882, ch. 480, referred, among other things, to the following documents : The decrees of the prize court in the case of the Albemarle. The orders of the Secretary of the Navy for the distribution of the prize money. The opinion of Attorney General Reverdy Johnson,

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