#### GALLEGO, MESSA AND COMPANY v. THE UNITED STATES.

[No. 25661.

Decided May 4, 1908.]

*On the Proofs.*

Tiie claimants, subjects of Spain, with one British subject, are doing business in the city of Santiago, Cuba. Military forces of the United States during the war with Spain seize and use their wharves and steamships.

I. The case is identical with the preceding case of Hererra Nephews, by which it is governed.

II. A foreigner residing during a state of war within the dominion of one belligerent is subject to the jurisdiction and control of the other, who may treat his property as hostile. The character of an enemy may attach either to his person or property; and he can not demand compensation for loss or damage resulting from military operations.

*The Reporters'*statement of the case:

The following are the facts of the case as found by the court:

I. The claimants herein, Pascasio Diaz, representing the three sisters Gallego, to wit, Carmen, Mercedes, and Josefa, Enrique de Messa, and Robert Scott Douglas, were, at the time of the taking of the property hereinafter mentioned, a partnership doing business under the firm name of Gallego, Messa & Company. Mercedes, now dead, was the wife of Pascasio Diaz, and left minor children, of whom Pascasio Diaz is the guardian, and besides representing the other two *445sisters, Carmen and Josefa, be now represents the minor children of Mercedes in the partnership.

At the time of the capitulation of Santiago Robert Scott Douglas was and still is a British subject; Pascasio Diaz was and still is a subject of the Crown of Spain, and Enrique de Messa and the three sisters Gallego were subjects of Spain and have not since the exchange of the ratifications of the treaty of Paris between the United States and Spain preserved their allegiance to the Crown of Spain by making declaration of their decision to preserve such allegiance.

II. The firm of Gallego, Messa & Co. was, at the time of the capitulation of the city of Santiago to the American forces on the 16th day of July, 1898, the owner of a certain steamer named the *Thomas Brooks.*On said date the Spanish forces then occupying the territory which constituted the division of Santiago, including the city and port of that name, capitulated to the United States in accordance with the terms of a military convention which provided that all hostilities between the American and Spanish forces in said district should cease. Actual hostilities ceased with the surrender of Santiago.

III. On entering the city of Santiago the United States authorities found in the harbor of Santiago said steamer *Thomas*Brooks, there held and detained by the blockade of the harbor and port by the United States naval authorities.

Said United States military authorities seized and captured said steamer *Thomas Brooks*on July 17, 1898, and thereafter used it for the transportation of troops and munitions of war until September 6, 1898, a period of fifty-one days. The United States paid the cost of operating said steamer during said period.

Prior to its seizure by the United States authorities said vessel had been used and employed to transport Spanish troops and munitions of war from place to place.

The fair and reasonable value for the use of said steamer for said period of fifty-one days was $125 per day, amounting to the sum of $6,375, no part of which has been paid to claimants.

*446IV. On January 18,1899, after said vessel had been turned, over to claimants by the military authorities of the United States, claimants executed the following receipt and release:

“ Received this 18th day of January, 1899, at Santiago,, Cuba, from Maj. Jno. T. Knight, quartermaster, U. S. A., chief quartermaster. Department of Santiago, the steamship *Thomas Brooks,*which vessel is accepted with the full knowledge and understanding that the Secretary of War does not consider that any allowance is due the owners on account of the use of the vessel, she being captured property, or for any damages sustained while the vessel has been in possession of the United States Government, the return of the vessel being a generous act on the part of the United States Government, and that any claim subsequently made for such use- and damages shall be a matter for future consideration of the War Department.

“Gallego, Messa,& Co.

“ By R. Scott Douglas,

*“One of the f/rmT*

“ *To ail whom these presents shall come or may concemy greeting:*

“ Know ye that Gallego, Messa & Co., owners of the steamship *Thomas*Brooks, for and in consideration of the prompt return of the said steamship to our agents in Santiago de Cuba (the said vessel having been taken into the possession of the United States by the officers, agents, or servants thereof, in the port of Santiago de Cuba, upon the surrender of that port by the Spanish military authorities to the military authorities of the United States, and having been since in the possession and use of the United States Government), c release and forever discharge, and do by these presents for themselves, their heirs, administrators and assigns, release and forever discharge the said Government of the United States and its officers, agents, or servants, of and from all manner of actions, damages, claims and demands whatsoever, which, against the said United States Government, or any of its officers or agents, the said Gallego, Messa & Co., ever had, now have, or may have by reason of the seizure or taking possession of the said steamship *Thomas Brooks*as aforesaid by the United States Government, its officers, agents, or servants, or by reason of the subsequent retention of possession of the said vessel, or by its use by the Government of the United States, its servants, officers, or agents.’

“And said Gallego, Messa & Co. furthér covenant that they are the parties lawfully interested in the premises, and have good right to receive the said steamship, and to give this release. ,

*447“ Done at the city of Santiago de Cuba tbe 18th day of January, 1899.

“ Gallego, Messa & Co.,

“ By R,. Scott Douglas,

“ *One of the firm.”*

“ Peovince oe Santiago, *City of Santiago de*Cuba, *ss:*

“ On the 18th day of January, 1899, personally came and appeared before me, a notary public duly commissioned in and for the province of Santiago de Cuba, Robert Scott Douglas, to me known, and known to me to be a member of the firm of Gallego, Messa & Co., who executed the foregoing release in behalf of the firm of Gallego, Messa *&*Co., and acknowledged that he executed the same as the act and deed of said firm for the purposes therein mentioned.

“ E. G. Bellairs,

*“United States Notary*Public.”

At the time the military authorities of the United States returned said vessel to claimant company it was in as good, condition as when taken possession of by said authorities, ordinary wear and tear excepted.

V. At the,same time, to wit, July 17, 1898, the military forces of the United States took possession of two wharves, the Muelle Lus and the San Jose, with their warehouses and sheds, belonging to claimants, and used the same for the purpose of loading, unloading and storing government supplies, and in facilitating the movements of troops from July 17, 1898, to March 1,1899, a period of seven and one-half months. During said period said wharves were not used exclusively by the United States, but commercial steamers were permitted to land there and they were used by the merchants of the city of Santiago when such use did not interfere with the handling of government stores. It does not appear that claimants received any compensation from commercial steamers or merchants of the city for such use during said period.

From time to time said wharves and warehouses were repaired by the United States, and claimant company was employed by the United States at $32 per day to dredge alongside of same for about three months. Said wharves were returned to claimants in nearly as good condition as when the United States took possession of them.

*448The reasonable value of the use of said wharves and warehouses for the period they were used by the United States forces, together with any damage caused thereto by reason of said use, was $7,300.

VI. After the surrender of Santiago and the seizure and taking of said vessel and wharves and warehouses as aforesaid, the Secretary of War, in pursuance of the proclamation of the President of July 13, 1898, issued General Order No. 101, of July 18,1898, which, among other things, provides:

“Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as telegraph lines ' and cables, railways, and boats, may, although they belong to private individuals or corporations, be seized by the military occupant, but unless destroyed under military necessity, are not to be retained. * * *

“ Private property taken for the use of the army is to be paid for, when possible, in cash, at a fair valuation, and when payment in cash is not possible receipts are to be given.”

Said order was promulgated in Cuba, July 20, 1898.

*Coudert Brothers*and *Mr. Grammond' Kennedy*for the claimant. *Mr. Joseph F. Cooper*was on the brief.

*Mr. Franhlin W. Collins*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Per Curiam :

The facts in this case are practically the same as those in the case of *Cosme Blanco Herrera et al.*v. *The United States*(ante, p. 430), decided contemporaneously with this; and the decision in that case controls this unless the use of the wharves and the citizenship of one of the claimants herein — a British subject — operates to vary the rules announced therein.

The wharves, as well as the steamship Thomas Brooks, were seized and used by the military forces of the United States as an act of war within the limits of military operations, and, therefore, under the ruling in the case of *Hijo*v. *The United States*(194 U. S., 315), as applied to captures in Cuba by the ruling in the case of *Cosme Blanco*Herrera, supra, no action will lie therefor against the United States.

*449Two of the claimants herein were subjects of Spain, while one, Robert Scott Douglas, was a British subject. But a foreigner residing in a state at war with another state is subject to the jurisdiction and control of the state wherein he resides and does business, and his property being an element of strength to the state wherein he resides “ may reasonably be treated as hostile by an enemy.” That is to say, “ enemy character may thus attach either to persons of neutral national character, and to their property as attendant on them, or to property owned by neutrals in virtue of its origin, or of the use to which it is applied.” (Hall’s Int. Law, 5th ed., p. 497.)

Such also was the view of this court in the case of *The Juragua Iron Co.*v. *The United States*(42 C. Cls. R., 99, 111), where the court said: “ The law seems to be well settled that when a citizen of one belligerent country is doing business in the other belligerent country, and has built up and purchased property there which has a permanent situs, such property is subject to the same treatment as property of the enemy. At first sight this rule of law seems to be a harsh one, but when we consider that the property therein situated is a part of the assets of a country, and in a certain sense a part of the country itself, and further consider the difficulty, in stress of war, of discriminating between enemy and citizen property situated in the same country, the rule seems to be reasonable and necessary.”

In the present case the findings show that the vessel prior to its seizure by the United States military forces had been employed in the transportation of Spanish troops and munitions of war from place to place.

Had the vessel been owned exclusively by said Douglas— the British subject — its use in transporting troops and munitions of war for the Spanish Government, however innocent the owner’s intention, would have been service to a state engaged in active hostilities against the United States. But for the purposes of this case we deem it unnecessary to hold that he had thereby forfeited his neutral character; and so, treating him as a neutral individual residing in Cuba, the obligation was upon him to “be prepared for the risks *450of war; ” and that being so, be “ can not demand compensation for loss or damage to property resulting from military operations carried on in a legitimate manner.” (Hall’s Int. Law, sec. 269.)

In this respect he stands in no better position than a subject of Spain.

The petition is dismissed.