#### LUSTER P. CHESTER ET AL., ADMINISTRATOR, v. THE UNITED STATES.

[Congressional 14589.

Decided April 14, 1913.]

*On the Proofs.*

The claimants after tlie hostilities of the Civil War have begun, and in defiance of the proclamation of the President, carry two steamboats towing eight barges loaded with coal, from Pittsburgh, Pa., down the Ohio and Mississippi Rivers and across the military lines into belligerent territory. They arrive in New Orleans May 14, 1861, where they dispose of the coal. On the return voyage the steamboats are seized at Memphis and placed in the Confederate military service, in which they *358remain for nearly a year. At the time of the capture of Island No. 10 they are scuttled and sunk to prevent their falling into the hands of the United States forces. The claimants apply for permission to raise them. Commodore Foote does not comply with their request and reports the vessels as captured from the enemy. In a few days they are carried away by high water and lost.

I. Where two steamboats after the hostilities of the Civil War had begun and in defiance of the President’s proclamation of April 19, 1861, were taken by their owners from Pittsburgh, Pa., into belligerent territory for the purpose of trading with the enemy, and were seized and placed in the Confederate military service, in which they were used for nearly a year, finally being scuttled and sunk by Confederate authority to prevent their falling into the hands of the United States, the refusal of the naval officer in command to allow the owners to raise the vessels cast no liability on the United States. The claim for reimbursement is neither legal nor equitable.

II. The loss of two steamboats by the act of the enemy was the result of the owners’ own misconduct where they conveyed them within the Confederate lines for the purpose of trading in hostile territory.

*The Reporters’*statement of the case:

The following bill was referred to the court on April 15, 1910, by resolution of the House of 'Representatives, under the act of Congress approved March 3, 1887, known as the Tucker Act:

“A bill for the relief of Luster P. Chester and Freeland Chester, and Luster P. Chester and Freeland Chester, executors of Thomas R. Chester.

“ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.,*That the sum of twenty-five thousand dollars be, and the same is hereby, appropriated, out of any money in the Treasury not otherwise appropriated, to pay Luster P. Chester and Free-land Chester for the value of the steamer Grampus taken by the Confederate forces in May, eighteen hundred and sixty-one; and the sum of twenty-five thousand dollars be, and the same is hereby, appropriated to pay Luster P. Chester and Freeland Chester, executors of Thomas B,. Chester, for the value of the steamer Mohawk, and five thousand dollars for a barge taken by the Confederate forces in said month of May, eighteen hundred and sixty-one.”

*359The claimants appeared and filed their petition in this court May 18, 1910, in which they make the following allegations :

That they are citizens of the United States and residents of Pittsburgh, Pa., and bring suit in their own right and as the executors, duly appointed and qualified by and before the register for the probate of wills and granting letters of administration of Allegheny County, Pa., of Thomas R. Chester, late of Pittsburgh, Pa., who died October 18, 1883; that on and prior to May 25, 1861, the claimants were the owners in their own right of the steam tugboat Grampus, her tackle, apparel, lines, cables, machinery, furniture, equipment, and cargo, and the said Thomas R. Chester was the owner of the steam tugboat Mohawk, her tackle, apparel, lines, cables, machinery, furniture, equipment, and cargo, and a barge with a large quantity of coal, to wit, '6,000 bushels, laden thereon; that the said tugboats and barge were lawfully employed by the claimants and the said Thomas R. Chester in commerce on the Mississippi and Ohio Rivers; that on, to wit, May 25, 1861, the said tugboats, being thus lawfully and properly employed, and engaged in ascending the Mississippi River, bound from the port of New Orleans to the port of Pittsburgh, put in at the port of Memphis, Tenn. Thereupon, while lying at the port of Memphis, on the said 25th day of May, 1861, the said tugboats and barge were boarded by an armed force of Confederate soldiers, who seized and confiscated the said tugboats and barge, with their tackle, appurtenances, and cargoes, including said coal, and appropriated the same to the use of the Confederate government, and compelled the said Thomas R. Chester, who was acting as master of the vessels, together with their officers and crews, to abandon the same; that the vessels remained in the possession of the Confederate government until April T, 1862, when the Confederate forces evacuated fortifications previously held by them at Island No. 10 in the Mississippi River, and that island and the portion of the river in its vicinity were captured by a United States naval force under the command of Commodore Andrew H. Foote, United States Navy.

*360On April 8, 1862, the day following the capture of Island No. 10, Thomas K>. Chester and the claimant Luster P. Chester went to Island No. 10 and found the vessels stranded in the river near the island and within the territory controlled by the United States naval force at that time. They could have been raised and salved easily. That thereupon Thomas R. Chester and the claimant Luster P. Chester asked Commodore Foote for leave to resume possession of their vessels, explaining that they had facilities for raising them, and that if permitted to remain stranded as they were, they would be destroyed by floods which were then descending the river. Commodore Foote said that the vessels would be raised by the United States, but he made no effort to do so, and thereafter, the vessels still being within the control of the United States, the waters of the river rose as predicted by Chester and, in consequence, were wrecked and they, together with their rigging, tackle, apparel, lines, cables, furniture, equipment, machinery, and cargoes, became a total loss. That the tugboat Grampus was owned by the claimants in their own right. Her value on April 8, 1862, was $25,000. The tugboat Mohawk was owned by Thomas R. Chester. Her value was $25,000. The said barge belonged to Thomas R. Chester. Her value and that of the coal laden on her was $5,000. That the sole cause of the destruction and loss of the said vessels, with their equipment, etc., as aforesaid, and the damage suffered by the claimants and Thomas R. Chester in consequence thereof, was the refusal of the United States, through Commodore Foote, to permit the claimants and Thomas R. Chester to raise the vessels and resume possession of them, as they were entitled to do. That the damages sustained by the claimants and Thomas R. Chester were as follows:

The claimants, in their own right, on account of the loss and destruction of the said steam tug Grampus, etc_$25,000

The claimants, as executors as aforesaid, on account of the loss and destruction of the said steam tug Mohawk, etc- 25, 000

The claimants, as executors as aforesaid, on account of the loss and destruction of the said barge and coal, etc_ 5, 000

Total. 55,000

*361The court, upon the evidence, made the following findings of fact:

I. The claimant Luster P. Chester is a citizen of the United States and a resident of the county of Allegheny, State of Pennsylvania. The claimant Freeland Chester is a citizen of the United States and a resident of the city of McKeesport, county of Allegheny, State of Pennsylvania. On October 29, 1883, letters testamentary on the estate of Thomas R. Chester, late of the said .city of McKeesport, deceased, were duly granted to the claimants by the register for the probate of wills and granting of letters of administration in and for the said Allegheny County, which letters testamentary at the time of the bringing of this suit were and still are in full force and effect.

II. In the year 1861 and prior thereto the said Thomas It. Chester and the claimants were associated together in the business of towing on the Ohio and Mississippi Rivers, between Pittsburgh, Pa., and New Orleans, La. In connection with that business they operated the steamer Mohawk, owned by the said Thomas R. Chester, and the steamer Grampus, owned by the claimants, both of which vessels were enrolled in the office of the collector of customs for the port of Pittsburg. The dimensions of each of said steamers are correctly set forth in certificates of enrollment issued by the surveyor of said port, viz:

,S. S. Mohawk: 1 deck; no mast; length 123 feet; breadth 21 feet 8 inches; depth 4 feet; 100 30/100 tons; stern-wheel steamer; cabin on deck; plain head.

S. S. Grampus: 1 deck; no mast; length 122 feet; breadth 22 feet; depth 4 feet; 100 92/100 tons; stern-wheel steamer; cabin on deck; plain head.

The hulls of the said steamers were of oak, the floor timbers or bottom planking being about 3 inches thick; side planking from 2 to 2-J inches thick, supported on frames on ribs of oak timbers between 5 and 6 inches thick by 3-J to 4 inches wide, and spaced 6 or 8 inches apart. Each of the vessels was equipped with a deck house or cabin of light-wood, adequate for the accommodation of her officers and crew. The said Grampus was provided with high-pressure *362engines, having cylinders 17£ or I7f inches in diameter, with 5-foot stroke, and 3 boilers 35 inches in diameter. The said steamer Mohawk was equipped with high-pressure engines, having cylinders 16 inches in diameter with 5-foot stroke. The engines were of the best type and construction. The said steamers were stern-wheelers, adapted for use as towboats on the Ohio and Mississippi Rivers. Their speed in still water was about 8 miles per hour, which, at that period and in that place was considered fast.

III. Four days after the surrender of Fort Sumter, on or about April 17, 1861, claimants left Pittsburgh with their said steamers, having in tow 8 barges loaded with coal destined for Louisville, Ky., and New Orleans, La. They reached Louisville April 25, remaining three or four days, discharging a portion of their cargo.

April 19, 1861, President Lincoln issued a proclamation announcing that the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas were in insurrection against the Government of the United States, and declaring a blockade of the ports along the Mississippi River, and stating if any vessel shall attempt to enter or leave the blockaded ports she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize, as may be deemed advisable. 112 Stat. L., 1258-1259.)

After the issuance of said proclamation, claimant continued his journey down the Mississippi River. On arriving at Memphis, Tenn., a barge load of coal was left to be used as fuel on the return trip. At Norfolk, some 25 miles south of Memphis, said vessels were ordered to land. When it was found that the cargo consisted of coal the vessels were released and proceeded on the way to New Orleans, which was reached on the 14th of May following. After disposing of the cargo of coal the Confederate authorities permitted the vessels to leave said port. On arriving at Memphis, Tenn., on the return trip, their vessels were seized by an armed force terming itself a “ vigilance committee,” or “ committee of safety,” and claiming to act under authority of the Confederate States Government. Unsuccessful efforts were *363made to have said vessels released, but they were declared confiscated by the Confederate authorities under command of Gen. Pillow. Claimants thereafter proceeded to their homes in Pittsburgh by railroad.

' It appears that thereafter said vessels were armed, fitted, and used in the service of the Confederate government at the time of the evacuation of Island No. 10, April 7, 1862, and that at the time of said evacuation said vessels were scuttled by the Confederate forces by cutting the supply pipes, which were from 1-| to 2 inches in diameter. Said vessel, the Grampus, sank close to the Tennessee shore of the river opposite Island No. 10 in water between 3 and 4 feet deep. As she rested on the bottom her lower deck and guardrail were not submerged. The Mohawk, on being cut loose from her moorings at Island No. 10, floated downstream for a few miles and finally sank on a bar in the river off New Madrid, Mo., where she lay in water about 4 feet deep. Her lower deck and guardrail were not submerged.

On April 8,1862, the day on which the claimants’ decedent requested permission to raise said vessels, Commodore Foote, in a report to Gen. Halleck, said :

“ Four steamers afloat have fallen into our hands, and two others, with the rebel gunboat Grampus, are sunk, but will be easily raised.”

About this time the claimants’ decedent recognized the vessels as the said Grampus and Mohawk, and thereupon informed Commodore Foote, the officer in command of the United States forces, that they belonged to him and requested permission to raise them, advising Commodore Foote that they could be raised easily by means of pumps then and there available, and that it was necessary that prompt action be taken because a flood was descending the river and was likely to reach the vicinity of Island No. 10 daily, and that if such flood were to strike the vessels as they lay they would be swept away and lost; but said officer refused to grant said permission and said that he would have a Government wrecking boat sent from St. Louis to raise the said vessels. It does not appear that Commodore Foote took any steps toward having the said vessels raised, and a few days *364later left the vicinity of Island No. 10 with his fleet, including the vessel on which the claimants were serving as pilots, and tire said Grampus and Mohawk were subsequently washed away and destroyed by a rise in the waters of the Mississippi Eiver.

IY. It appears from a report of the Treasury Department, filed in this case November 26, 1910, that the vessels were owned at Pittsburgh, Pa.; the Mohawk was valued at $6,000 and the Grampus at $7,500. However, in a report bearing date of September 14, 1863, and subsequent to the wrecking of 'said vessels by flood as aforesaid, Capt. George D. Wise, United States Army, made a report containing a list of captured vessels in which the Grampus and Mohawk were classed as wrecks and as such valued as follows: “ Mohawk, $500; Grampus, $5,000. On April 8, 1862, the vessels could have been raised and repaired, but at what cost does not appear. It appears that the engines in the said Grampus would have cost about $17,500 and those in the said Mohawk about $16,000, and that to construct the hulls of the said vessels would have cost from $3,800 to $4,500 each.”

What the cost of raising, repairing, and refitting the vessels so sunk was does not appear, nor does it satisfactorily appear to the court from the evidence adduced what the value of said vessels, or either of them, was in the condition in which they were at the time the' claimants so requested permission from Commodore Foote to raise them, nor is it shown that the United States received any benefit from the use of said vessels or otherwise.

Y. The' claimants and said Thomas E. Chester were loyal to the1 Government of the United States throughout the late Civil War.

YI. From time to time since the loss of said vessels as aforesaid said Thomas E. Chester and the claimants herein have petitioned Congress to indemnify them for the loss of their vessels, but have received no indemnity nor recovered any sum or sums therefor whatsoever.

In 1865 said Thomas E. Chester instituted suit in the United States Circuit Court for the Western District of Tennessee against Eobert C. Brinkley and other members *365of what was known as the “ Vigilance committee ” or “ Committee of safety,” of Memphis, to recover damages for the alleged unlawful appropriation of their boats to the use of the Confederate government. From the records introduced by the claimants it does not appear what satisfaction, if any; was obtained from said Brinkley and others in said suit.

*Mr. James E. Hayden*for the claimant.

*Mr. Percy M. Goto*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

This claim was referred to the court for findings of fact and conclusion of law, under the terms of the act of March 3, 1887 (24 Stats., 505), generally known as the Tucker Act. The claim is stated at $50,000 — $25,000 each for the loss of the steamers Grampus and Mohawk, owned by Thomas R. Chester and his two sons, Luster P. and Freeland Chester. Said vessels were captured by the Confederate authorities at Memphis, Term., May 25, 1861, and were used in the military service of the Confederate States Government until April 7, 1862, when they were scuttled and sunk by said Confederate authorities upon their evacuation of Island No. 10 in the Mississippi River. It appears that a bill for the relief of claimants was introduced in the Forty-eighth Congress, and later in the Fifty-first Congress, appropriating the sum of $12,000 in payment for said Grampus and $13,000 for said Mohawk, and $5,000 for the loss of a coal barge and its contents. Again, on March 5, 1910, another bill was introduced, which purports to appropriate $25,000 each for the loss of said two steamers, and $5,000 for the coal barge, making an aggregate sum of $55,000.

The material facts in this case are briefly stated as follows : On April 17,1861, claimants cleared the port of Pittsburgh, Pa., with said steamers, having in tow eight barges loaded with coal belonging to them, destined for Louisville, Ky., and New Orleans, La. They arrived at Louisville on or about April 25, six days after the proclamation of President Lincoln blockading the ports along the Mississippi River in the States then engaged in insurrection against *366the United States. Claimants nevertheless proceeded with their steamers and barges down the Ohio and Mississippi Rivers, and were permitted to reach New Orleans, La., where the coal was disposed of, and they were allowed to leave said port in an effort to return to Pittsburgh, Pa. On arriving at Memphis, on the return trip, their said vessels were captured by the Confederate authorities at that place and also a barge load of coal which had been left at said city as the steamboats were on their way to New Orleans. Said steamboats were thereafter promptly armed by the Confederate authorities, and were employed by them for about a year in belligerent operations along the Mississippi River until the capture of Island No. 10 by Federal troops, when they were scuttled and sunk, as above stated, by Confederate authority.

'It is shown by the findings that Thomas R. Chester and his son, Luster P. Chester, discovered their said steamers after they had been sunk, and asked permission of Commodore Foote, who was in command of the Federal forces at Island No. 10, to permit them to raise and repair their said vessels, which request was declined. It is now claimed that the refusal of Commodore Foote to permit the raising of said vessels resulted in the complete destruction of them by high water, which shortly thereafter descended the Mississippi Yalley.

The only question necessary to be discussed in the consideration of the evidence in this case is the effect of the refusal of Commodore Foote to permit the claimants to raise the vessels in question immediately after their capture. Without conceding that the title to them was in the claimants, it was unquestionably the right of the Government authorities to take a reasonable time to determine that question before relinquishing their possession, and as the findings show that they were carried away by the floods within a few days after their capture, no such reasonable time had elapsed before their destruction.

Another circumstance forcibly affecting the equities of this claim is the fact that the claimants took the boats into Confederate territory after the issuance of the President’s proclamation declaring it to be hostile territory, and of *367which they had constructive, and doubtless actual, notice. The fact remains that they were voluntarily trading in hostile territory. This conduct on their part resulted in the destruction of their property in the manner stated.

We see nothing in the case indicating any misconduct on the part of the Government officer relating to this unfortunate affair, and hence do not think the claim is an equitable one against the United States, and certainly it never was a legal one.

It is ordered by the court that the findings herein, together with a copy of this opinion, be certified to the Congress.