THE INFANTA MARIA TERESA

Mr. Chief Justice Fullee,

after making the foregoing statement, delivered ,the opinion of the court.

After the engagement, the Teresa, as she lay shattered on the shore, was not in condition to be sent in for adjudication, and no survey and appraisement were thereupon had, nor was any sale directed by the commanding officer, as provided in section 4615, Revised Statutes; nor was the Teresa taken for and appropriated to the use of the United States and the value deposited under section 4624; nor were proceedings for adjudication commenced under section 4625, until by this libel. But the attention of the Government and of the commanding officer was directed from the first to the question of salvage. The commanding officer was of opinion that the Colon and the Teresa could both be raised and reconstructed, and the Government was desirous that this should be done if possible. The proceedings to that end were conducted in perfect good faith, and there was no suggestion that by the attempt to save these ships the Government was appropriating them or either of them to its use within the intent and meaning of the statute. The Government, argues, and with great force, that the Teresa having been sunk and destroyed to such an extent that the naval force was powerless to save her by its own resources, her legal status as sunk or destroyed became fixed immediately after the engagement, and that nothing but bounty could be recovered. In The Manila Prize Cases, ante, p. 254, we ruled that this was applying too rigid a construction to the statute, and that if an enemy’s vessel of 'war sunk in battle was subsequently raised and reconstructed by the Government, she might properly be adjudicated as prize, the result being to let in the captors for prize money after the expense and cost of reconstruction and refitting had been deducted.

But the facts in this .case are wholly different. The Teresa was raised and floated, but she was lost before she reached the. Norfolk Navy Yard, which was the nearest practicable point at which she could be reconstructed.

We cannot concur in the view that the United States appropriated the Teresa to its own use within the-meaning of the statute by attempting, with the advice and concurrence of the captors, to save her, or by the mere act of raising, and as soon as she floated, for that was only a step in the effort at salvage, and until salvage was accomplished, she was not appropriated to use. And this is true of the Colon, though the effort to salve her was given up before she floated. •

Libellants’ counsel agree with counsel for the Government that the question of prize or no prize must be determined as of the close of the engagement on July 3, 1898, but they contend that the Teresa was not sunk or destroyed as she lay stranded on the beach, and in her then condition could have been condemned as prize; that the Secretary of the Navy, in arranging to salve her, acted voluntarily, and “ without the knowledge of the captors ; ” and that the latter, at least, yielded to his superior authority.

The statute makes no provision for adjudicating wrecks as prize. Bisection 4625 proceedings‘may be had in respect of proceeds of property appraised and sold,; in' respect of the value of property appropriated to use; andón 'respect of property entirely lost or destroyed.

In this case there was no appraisal and sale; there was no appropriation to the use of the Government in the meaning of 'the statute ; the vessel had not been in condition to be sent in and then been “ entirely lost or destroyed.”

And it must be remembered that the Teresa could never have been, raised and saved by the captors alone. Yet her sal-vability seems to have been generally conceded. The commanding officer took no measures to have the wreck appraised and sold, but concurred with the Government in the effort at salvage. In doing so he represented all who would have been interested if the ship had been saved, and while the chance of obtaining considerable prize money was quite good, no risk was run of losing bounty by taking that chance.

The Government acted with due prudence in employing persons, whose business it was to do such work, to raise and deliver. the vessel at the Norfolk Navy Yard. If no attempt had been made, the vessel, would finally have gone to pieces where she lay.

Salvors are not held responsible for a loss when attempting salvage in good faith, and with reasonable judgment and skill, The Laura, 14 Wall. 336, and we know of no reason why the Government should be held to a more rigorous accountability even if it could in any case be regarded from the standpoint of a mere salvor of the property of another. Where a hostile vessel of war has been so far destroyed that she cannot be brought in by the naval force, which reduced her to that condition, but she is raised, reconstructed and appropriated to use by the Government, the statute may be so construed as to permit the application of the doctrine of relation, but this case does not come within that view, and the claim for prize money in respect of the wreck itself is not sanctioned by the act of Congress. But libellants did not waive their right to bounty by seeking to recover prize money, and to bounty they are still entitled.

As to the property taken from the Teresa and the other wrecks, its disposition must' follow the rule laid down in The Manila Prize Cases, ante, p. 254.

In our opinion the words “ ship or vessel qf war belonging to an enemy,” as employed in § 4635, covered armament, outfit, and appurtenances, including provisions, money to pay the crew or for necessary expenditures, everything necessary to be used for the purposes of the vessel, and as a vessel of war. The grant of prize money and the grant of bounty were distinct grants, and the applicable general rule ought not to be deprived of its force by.particular exceptions.

Tlie decree is reversed, without costs in this court, and the cause remanded with a direction to dismiss the libel.

Mh. Justice Bkowx,

with whom was Mr. Justice Beewee,

dissenting.

I am unable to distinguish this case in principle from that of the The Manila Prize Cases, ante, p. 254, just decided. There the vessels were sunk and partially destroyed, but were subsequently raised, hauled into the slip, sufficiently cleaned up and overhauled to put to sea for Ilong Kong under their own steam. • The repairs were completed at Hong Kong, and the vessels commissioned as a part of the Navy.

In the present case, the Infanta Maria Teresa was also sunk and partially destroyed, but was raised, taken to Guantanamo, temporarily repaired, a crew put on board, was started for a port in the United-States under her own steam, and was subsequently lost in a gale of wind. All the operations connected with her raising and repair were conducted by contractors engaged by the IS avy Department, and supervised by a board of that department.

I submit that the fact that the vessels in Manila Bay were actually repaired and commissioned as vessels of the Navy and the Infanta Maria Teresa does not constitute a distinction in principle between the two cases; but the fact that in both cases the government elected to take possession of the vessels, and undertook to repair them for purposes of its own, is the turning point in the case. Had the vessels in Manila Bay been abandoned after being raised, and before they were repaired temporarily, had the Infanta Maria Teresa been either abandoned or lost before reaching Guantanamo Bay, or had she been there abandoned, I should have had no doubt that they could not either of them be considered as prizes of war. But the fact that, after being examined, the Maria Teresa was temporarily repaired at Guantanamo and sent to Norfolk, with a crew on board and under her own steam, indicates clearly to my mind that the government had elected to make the vessel its own property, and her subsequent loss was the loss of the government and not of the captors. In fact, it is the election, and not the result of the election, which determines the ownership of the property.