had not been interrupted. In the majority of cases, however, the prevailing rule in fixing the measure of damages for cargo unlawfully seized has been to take the cost of the goods at the port of embarkation plus a reasonable percentage for profit. This rule was followed in the case of Ferrer v. Mexico, the award embracing the value of the merchandise at the place of shipment, the cost of its transportation and ten per cent profit on the value, according to the practice of prize courts.1

Several cases have occurred in which fishing and sealing vessels have been unlawfully prevented from plying their industry by being wrongfully ordered from the fishing grounds. The question as to whether such vessels are entitled to damages for loss of prospective catch was fully discussed in the cases of certain American sealing vessels ordered out of the Behring Sea by Russian cruisers in the early nineties, and in the arguments of Great Britain and the United States before the Behring Sea Claims Commission. The claims of the American vessels against Russia were submitted to the late Professor T. M. C. Asser as arbitrator and in all but one of the cases, he estimated the damages by the average catch of the season, making an allowance for the prospective catch of which the vessels had been deprived.2

1 Ferrer (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2721. The rule of the British admiralty court in the case of provision cargoes seized under the orders of April, 1795, was to allow the invoice price plus 10 per cent. See the Betsey v. Great Britain, Nov. 19, 1794, Moore's Arb. 4208.

In the case of goods destroyed by the Confederate cruisers, adjudicated by the court of commissioners of Alabama claims, the measure of damages was deemed the value of the goods at the time and place of shipment, with charges and marine insurance actually paid, with interest on the aggregate thus produced from the time of shipment to the date of destruction, at 6 per cent. Winged Racer v. U. S., Act of June 23, 1874, Moore's Arb. 4242. The court was prohibited from making allowance for prospective profits.

2 The Cape Horn Pigeon, the James Hamilton Lewis and the C. H. White were allowed substantial damages for prospective catch. The Kate and Anna claim for catch was disallowed because on warning the captain had returned home instead of fishing elsewhere as he might have done. For. Rel., 1901, appendix. In four cases before the Behring Sea Claims Commission, it seems, awards were made for prospective catch lost by heeding warning to cease fishing, Convention of Feb. 29, 1892, Moore's Arb. 4764, 945. Congress in making the appropriation to pay the Behring Sea awards (June 15, 1898, 30 Stat. L. 470) expressly declined to admit any liability "for any loss of prospective profits to British vessels engaged in pelagic fur sealing."

Where vessels have been wrongfully taken from their regular course and detained or used for a special purpose, damages in the nature of demurrage for the detention or time of employment have been allowed against the captors who had made the unlawful seizure. In making this allowance for time lost, the court may properly take into account the nature of the business in which the vessel is engaged. Thus, the court of commissioners of Alabama claims made an allowance in lieu of catch to the owners of fishing vessels taken from their regular occupations, and the allowance was not considered in the nature of prospective gains.

§ 176. Ordinary Contract and Tort Claims.

No definite rule as to the measure of damages in cases of contract or tort can be asserted. It may be said, however, that the loss of probable profits is more generally compensated in cases of breach of contract than in tort cases, because the profits of a business enterprise are presumed to have been within the contemplation of the contracting parties. The decision of the United States Supreme Court in the case of Howard v. Stillwell Tool Manufacturing Co. has on several occasions been referred to with approval by claims commissions:

"It is equally well settled that the profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness; or where, from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into."

Prospective damages were allowed in the Halifax Fisheries award. In the Costa Rica Packet (Gt. Brit.) v. Netherlands, May 16, 1895, Moore's Arb. 4948, it seems quite probable that M. de Martens made some allowance for prospective catch. The court of commissioners of Alabama claims, who, under the Act of 1874 were prohibited from making allowances for prospective profits, disallowed several claims for loss of prospective catch of fish. The Alert, Moore's Arb. 4288; Gannett, ibid. 4299; Osborn, ibid. 4305.

1

1 Schooner Lively, 1 Gall. 315; Corier Maritimo, 1 C. Rob. 287; Ships James Maury, General Pike and others, Court of Alabama claims, Act of June 23, 1874, Moore's Arb. 4228; Baron de Castine v. U. S., ibid. 4303. A similar rule has been applied in collision cases. The Gazelle, 2 W. Rob. 279; Williamson v. Barrett, 13 How..101.

2139 U. S. 199. See Martini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 819, 843.

In cases of breaches of concession contracts the ordinary rule in contract cases has been followed, namely, to allow the reasonable value of the concession, based on its expected profits, and not merely the amount already spent on the works.1

In estimating the value of a business which may have been destroyed either through breach of contract or by tortious act, it is not unusual to fix the value of the good-will of the business by taking into account the amount of average annual profits.

It is equally difficult to bring within any established rule the measure of damages in tort cases, inasmuch as each case depends upon its own peculiar facts, and inasmuch as arbitrators exercise a wide discretion in determining the elements of loss which may enter into the allowance of compensation. The extent to which prospective profits and indirect losses may enter into consideration has been mentioned.

§ 177. Personal Injuries.

The commission passing upon alien claims against China arising out of the revolution of 1911 recommended that the rules adopted by the Crown Advocate of the British government in adjudicating the Boxer claims be followed, namely: in case of partial disablement, he obtained, wherever possible, "evidence as to the extent to which the life of the claimant was, from an insurance point of view, damaged; that is to say, the amount of extra premium which an insurance office would demand of the claimant, if otherwise sound, applying for a policy on his life, the extent of which they would 'load' the policy. The sum on which [his] calculation was based being that in which the claimant would naturally, from his position in life, take out a policy if about to marry, [he] then allowed the capitalized value of these extra premia as compensation for the injury received." 2

In cases of false arrest or imprisonment, the decisions of arbitrators exhibit a wide range of estimates upon the value of individual liberty and the indignity suffered by a wrongful arrest and detention. Umpire Plumley in the case of Topaze, before the British-Venezuelan com

In the case of May (U. S.) v. Guatemala, Feb. 23, 1900, For. Rel., 1900, 648, 654, $41,588 was allowed by the arbitrator for profits which would have been earned had not the government prevented the performance of the contract.

From Report of Mr. Wilkinson, Crown Advocate.

mission of 1903,1 after an examination of some sixteen cases, concluded that $100 per day for unlawful detention seemed the sum most generally acceptable to arbitral tribunals.2 The awards for unjust arrest and imprisonment, however, have varied greatly in amount, depending upon the arbitrariness of the arrest, the physical or moral suffering connected with the imprisonment, the duration of the imprisonment, the official character or station in life of the person arrested or detained, the necessary consequences of the deprivation of liberty, and other special circumstances.3 Reference has already been made to the provision of municipal law in most of the countries of Western Europe and in some of the states of the United States indemnifying from the Treasury of the State a person who has been unjustly convicted and imprisoned.

The measure of damages for tortious injuries resulting in death is based upon various factors, e. g., the age and station in life of the deceased, the expectation of life of the deceased and of his surviving beneficiary, the deprivation of comforts and companionship to those surviving, their degree of relationship to the deceased, shock to the surviving members of the family, and other considerations. The subject received careful attention in the cases of Di Caro and Brun against Venezuela. In deaths due to the Boxer uprisings, the Department of

1

Topaze (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 329, 331.

2 See the summary of cases collected in the footnote to Giacopini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 765, and in Ralston's International arbitral law, pp. 177-180. See also Moore's Arb., ch. LIX.

See 22 Op. Atty. Gen. 32, case of T. J. Culliton.

4 Supra, p. 129.

1 Di Caro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 769, 770; Brun (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 5-30. Besides the cases referred to in Ralston's International arbitral law, pp. 176-177, the following cases may be mentioned: Maninat (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 69-80; 100,000 francs allowed; Vexincourt case-Germany paid France 50,000 francs, for widow of person shot on French soil by German sentry on German territory, Oppenheim, I, 209; Pears' case v. Honduras, 1899, Moore's Dig. VI, 762 (shot by sentry without justification and contrary to military regulations. Sentry tried and acquitted. $10,000 indemnity obtained); Etzel case v. China ($25,000 Mexican offered by China for the unpremeditated killing of this war correspondent by Chinese soldiers-soldiers were also punished), For. Rel., 1904, 168 et seq.; Amelia Tejida de Govin v. U. S., Spanish Tr. Cl. Com., $20,000 for the killing of her son in Cuba by Spanish troops; Cornelia Alvarez de Otazo and eight

State awarded $5,000 each to the relatives or estates of eighteen adults, it appearing that the deceased left surviving no husband, wife or child. For the killing of several children, $2,500 each was awarded. The commission had in most cases allowed larger sums, based on expectancy of life and other considerations, but the Department in revising the awards, fixed the value of an adult life at $5,000 and that of a child at $2,500. The British and French governments appear to exact the fullest indemnity, based upon expectancy of life and earning capacity, and in flagrant cases, add exemplary damages. The commission passing upon the claims arising out of the Chinese revolution of 1911 recommended the adoption of the rules adopted by the Crown Advocate of the British government in adjudicating the Boxer claims, and presented in his report: 1

"Claims for compensation for the death of relatives fall naturally into two classes: Claims on behalf of the children of murdered parents and those by other relatives for loss of support, total or partial, actual or reasonably prospective, rendered or undertaken by those killed.

"Death claims on behalf of children were dealt with as follows: The children's ages and the station of life of the parents being ascertained, a sum equivalent to the present value of an annuity at three per cent. of whatever sum was necessary and fitting for the education of each child for the number of years to elapse before attaining the age of twentyone was calculated and allowed. In addition to this, such sum was allowed as would, invested at compound interest at three per cent. for the same number of years, provide for each child at twenty-one a necessary and fitting sum for his advancement in life.

"In dealing with death claims on behalf of relatives, the age of the beneficiary was ascertained and also the actual or average annual sum received from the deceased, the average expectation of life of a person of the claimant's age being taken, a sum equal to the present value of an annuity for such number of years at three per cent. of such annual sum was awarded. In case of prospective benefit to have been received if the murdered person had lived, the sum promised or reasonably expected to be paid by the deceased was taken as a basis of calculation."

children, ibid., $30,000 for the killing of husband and father by Spanish guerillas in command of an officer; Rand v. Panama, $8,000 indemnity for killing of American sailor by mob in Panama, For. Rel., 1909, 472; Firing by Russian fleet on British fishing vessels in North Sea, 1904—the Dogger Bank incident; £65,000 paid by Russia for killing of two fishermen and damage to several boats.

1 Extract from report of Mr. Wilkinson, Crown Advocate of the British govern

ment.