to the effect that a claimant must, so far as possible, be placed in the same condition as he would have been if he had been allowed to proceed without interference. While there is a tendency, notably in contract cases, to follow the rule of municipal courts that where profits may fairly be computed they may be recovered, it cannot be said. that there has been any close observance of the rule on the part of international tribunals.

§ 174. Punitive or Exemplary Damages.

Punitive or exemplary damages have been demanded by the United States and Great Britain in numerous cases where the injury to its citizens consisted in a violent and inexcusable attack upon their lives or property, where the defendant government seemed criminally delinquent, or where the citizen occupied a position carrying national dignity, such as a consul. Such outrages have been frequent in backward countries such as China, Persia and Turkey, the size of the indemnity demanded varying according to the circumstances.2 As already noted, the reparation demanded may assume forms other than that of a mere pecuniary indemnity. Arbitral commissions, while often apparently taking into consideration the seriousness of the offense and the idea of punishment in fixing the amount of an award, have generally regarded their powers as limited to the granting of compensatory, rather than exemplary, damages. In some cases, they have in dicta considered that there was in a given case no justification for the award of punitive damages, indicating thereby that they might, in an appropriate case, have awarded exemplary damages.3

§175. Maritime Torts.

In the case of maritime torts, a long line of decisions of the Supreme Court has established the rule that the anticipated profits of a voyage

1 U. S. v. Smith, 94 U. S. 214, 218; Railroad Co. v. Howard, 13 Howard, 307; Howard v. Stillwell Tool Mfg. Co., 139 U. S. 199; Anvil Mining Co. v. Humble, 153 U. S. 540.

2 See, e. g., The Boxer indemnity of 1900, For. Rel., 1901, Appendix; Murder of French and German consuls in Salonica, 1876, 65 St. Pap. 949; Lienchou riot case, 1904, For. Rel., 1906, pp. 308, 319.

3 Torrey (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 162; Metzger (Germany) v. Venezuela, Feb. 13, 1903, ibid. 578.

terminated by wrongful seizure or destruction of the vessel or cargo are not a proper element of damage,1 but that the measure of damage is "the full value of the property injured or destroyed," 2 to be ascertained by taking the actual prime cost of the cargo and vessel with interest thereon, including the insurance actually paid and such expenses as are necessarily sustained.3

Under a general rule of the law of carriers, the proper measure of damages is the value of the goods at the time and place where the carrier has contracted to deliver them. The commission under article VII of the treaty of 1794 between Great Britain and the United States, which provided for "adequate" and "full and complete" compensation held 4 that the measure of damages for the unlawful seizure of cargo was "the net value of the cargo at its port of destination at such time as the vessel would probably have arrived there," in other words, the value of the merchandise plus the net profits if the voyage

1 Del Col v. Arnold, 3 Dall. 333; The Lively, 1 Gall. 325; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 Wheat. 560; La Amistad de Rues, 5 Wheat. 385, 389; The Apollon, 9 Wheat. 362. Loss of freights were regarded as prospective profits and disallowed in Canada (U. S.) v. Brazil, Mar. 14, 1870, Moore's Arb. 1733, 1746; Alabama award, ibid. 658, and again, not gross freight, but only net freight, admissible. Papers relating to treaty of Washington, IV, 43. Boyne, Monmouth and Hilja (Gt. Brit.) v. U. S., May 8, 1871, Frazer's opinion, Hale's Rep. 252. Reasonable earnings were allowed in the Masonic (U. S.) v. Spain, award June 27, 1885, Moore's Arb. 1055, 1066; Col. Lloyd Aspinwall (U. S.) v. Spain, award Nov. 15, 1870, ibid. 1007, 1014. But see as to freights allowed, the Highlander and Jabez Snow v. U. S., Act of June 23, 1874, Moore's Arb. 4272. Meaning of net freight was defined in Winged Racer, ibid. 4260, as follows: from the freight which a vessel, when destroyed, was engaged in earning, must be deducted the expenses which would thereafter have been incurred if the voyage had been successfully accomplished. Earnings of a return voyage were considered "prospective earnings." Colby v. U. S., Moore's Arb. 4288; Taylor v. U. S., No. 1942, ibid. 4290.

2 Del Col v. Arnold, 3 Dall. 333; The Apollon, 9 Wheat. 362 (collision); Smith v. Condry, 1 Howard, 28 (actual damage at time and place of injury, and not probable profits at destination). See Telegraph and Vaughn, 14 Wall. 258; Ocean Queen, 5 Blatch. 493; Rebecca Adams (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2770 (actual value of vessel seized plus 3 months' interest).

3 The Charming Betsy, 2 Cranch, 64.

4 Betsey (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 4205, 4216; The Neptune, ibid. 4216, 4217. See also Rutherforth, Inst. of natural law, I, p. 405, § 5, cited in the Betsey (Moore's Arb. 4206) to the effect that lost profits are a proper element of damage.

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.1 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.2 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 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.

2 139 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

1 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.