# United States v. Taylor (188 U.S. 283)

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## Dissenting Opinion

    Billings Brown
United States Supreme Court
188 U.S. 283
United States v. Taylor
Argued: October 27, 28, 1902. --- Decided: February 23, 1903
This is an appeal from a decree of the supreme court of the District of Columbia, sitting as a district court of the United States in admiralty, on a libel in prize filed by William T. Sampson, Rear Admiral, United States Navy, in behalf of himself and the officers and men of the naval force on the North Atlantic station who took part in the naval engagement off Santiago. During the pendency of the appeal in this court Admiral Sampson died, and, his death being suggested, Admiral Henry C. Taylor was substituted by direction of the court. 187 U.S. 436, ante, p. 216, 23 Sup. Ct. Rep. 216.
The engagement took place July 3, 1898, when the Spanish fleet, consisting of the Infanta Maria Teresa, Cristobal Colon, Viscaya, Almirante Oquendo, and the torpedo boats Furor and Pluton, which had been lying in the harbor of Santiago, made a sortie and attempted to force its way past the American fleet then blockading the port. None of the Spanish vessels were afloat at the close of the action. The least injured was the Cristobal Colon, which was sunk by her commander, and lay nearly on her beam ends. The vessel in the next best condition was the Infanta Maria Teresa, whose bottom had been pierced by a point of rock, while she was completely burned out above the protective deck. She lay nearly upright, being submerged to about her normal waterline aft, and a little less than this forward.
On July 6, 1898, a board of eight officers was designated by Admiral Sampson, the commander-in-chief, to make 'a thorough examination of the condition of the wrecked Spanish vessels,' and to consider and report on the possibility of saving any of them. July 13, 1898, the board reported that it was 'possible and desirable to float the Infanta Maria Teresa,' and as to the Cristobal Colon, 'that if the weather continues favorable the probabilities are good for saving the vessel.'
July 6, 1898, a contract was entered into between the Merritt-Chapman Derrick Wrecking Company and the United States, stating in its preamble that the United States was 'desirous of raising and saving as many as possible of the Spanish vessels composing the fleet of Admiral Cervera,' and providing that the contractors should, upon 'arriving at the scene of the wreck of the Cristobal Colon, at once begin the work of raising that vessel,' with so much of her armament, stores, etc., as it might be possible to recover, the vessel and appurtenances, if so required by the United States, to be transported to the Navy yard at Norfolk, Virginia. The contract further stated: 'Inasmuch as it is believed that the Cristobal Colon is the least damaged of all the Spanish vessels above referred to, the party of the first part will endeavor to float her, and in case of success in that undertaking, or if it should, in the judgment of the senior United States naval officer present, be impossible to save that vessel, or if, in his judgment, during the work on the Cristobal Colon, it should be practicable to devote any time, attention, or labor to the saving of any of the other of the said vessels, then the party of the first part shall do all in its power towards the accomplishment of that end,' etc. And further: 'An officer of the Navy, to be designated by the commander-in-chief, and at all times subject to his orders, under the direction of the Secretary, shall be present at the scene of the work as the department's representative, to supervise and inspect the operations under this contract; and the party of the first part shall subsist such officer on board its vessel during the performance of such work and until the return to the Navy yard at Norfolk, if so required.'
Soon after the report of the board convened by Admiral Sampson, the contractors began work on the Colon, and on July 29, 1898, a supplemental contract was made in regard to the work on that vessel. The operations were carried on for some time for the purpose of raising and floating both the Colon and the Teresa, but work on the Colon was stopped on or about August 31, 1898, and the efforts were concentrated on the Teresa, which was finally floated September 23, and reached Guantanamo, September 24. She there received certain temporary repairs, and on October 29, 1898, started for Norfolk, Virginia, convoyed by the U.S. S. Leonidas, and in tow of the United States repair ship Vulcan, and the wrecking tug Merritt, also using her own steam as far as the condition of her engines permitted. She was in charge of the wrecking company, but an officer of the Navy had charge of the government men and employees on board, at the request of the wreck master, to assist the company in taking the ship to Norfolk. On November 1 she encountered a severe storm, and, after some hours, being apparently in a sinking condition, she was cast off, and ultimately drifted on to Cat Island, where she struck on the rocks and became a hopeless wreck. The evidence showed that her inability to withstand the storm was because of injuries sustained in action. There was no contention as to negligence, and a naval court of inquiry made findings and a report to the effect that the ship was not prematurely abandoned, and that the abandonment was in nowise due to the fault or negligence of any officer of the Navy.
July 17, 1899, libellants filed a petition in the court of claims for bounty, under U.S. Rev. Stat. § 4635 (U.S.C.omp. Stat. 1901, p. 3134), for the destruction of the Viscaya, Oquendo, Colon, Furor, and Pluton, which went to decree in their favor. 35 Ct. Cl. 578.
July 31, 1899, the libel in the present case was filed, setting forth that the Teresa, and all property taken from her, as well as that taken from the Colon and other sunken vessels, were prize of war, and had been appropriated to the use of the United States. The libel averred that the Teresa, 'after being taken for and appropriated to the use of the United States, and while in the possession of the United States, under the control of the Secretary of the Navy, being in charge of contractors employed by him,' was abandoned at sea, driven ashore, and finally abandoned, 'and for that reason cannot be sent in for adjudication.'
The district court entered a decree of condemnation, July 30, 1901, to the effect that the Infanta Maria Teresa and all the property taken from her and from the other vessels were lawful prize of war, and directing, upon the ascertainment of their value, the amount should be deposited, subject to the further order of the court, and that libellants were entitled to receive a moiety thereof. This appeal was then taken.
Mr. Charles C. Binney and Assistant Attorney General Hoyt for appellant.
Messrs. James H. Hayden, William B. King, Joseph K. McCammon, and George A. King for appellees.
Mr. Chief Justice Fuller delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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