222 ARGUMENT OF THE UNITED STATES. 



profits has been expressly overruled; and in Del Col v. Arnold (3 

 Dull., 333) and The Anna Maria (2 Wheat, 327), it was, after strict con- 

 sideration, held that the prime cost, or value of the property lost, at 

 the time of the loss, and in case of injury, the diminution in value by 

 reason of the injury, with interest upon such valuation, afforded the 

 true measure, for assessing damages. This rule may not secure a com- 

 plete indemnity for all possible injuries; but it has certainty and gen- 

 eral applicability, to recommend it, and, in almost all cases, will give a 

 fair and just recompense. 1 



And in Wood's Mayne on Damages.' tbe author, speaking of damages 

 in cases of tort, says: 



In general, however, injuries to property, where unaccompanied by 

 malice, and especially where they take place under a fancied right, art- 

 only visited with damages proportionate to the actual pecuniary loss 

 sustained. 



While it is conceded that there has been some relaxation of the 

 rigid rule of the early cases in England and the United States, in regard 

 to the allowance of profits as an element for the award of damages 

 or compensation, it is undoubtedly still the rule in both countries that 

 profits can only be allowed as damages where they are in the contem- 

 plation of parties, in cases arising on contract, and where they are the 

 necessary and proximate result of the injury in cases of tort, and in 

 those latter cases only where they can be proven or established with 

 substantial certainty. 3 



These vessels were all engaged in a hazardous voyage upon the boist- 

 erous waters of the North Pacific Ocean and Bering Sea. subject to all 

 the perils of the sea, and the mind can hardly conceive any event more 

 uncertain and contingent then the number of seals they would have 

 captured if they pursued their voyages unmolested. Shipwreck and 

 every other element of uncertainty, including the. proverbial uncertainty 

 which is always an element in fishing and hunting expeditions, would 

 seem to attend all such ventures, and the cogent reasoning of Mr. Jus- 

 tice Story in the cases just cited seems unqualifiedly applicable to the 

 items of "probable catch," etc., presented in this schedule of claims. 



The Tribunal will bear in mind that the United States do not 

 occupy the position of a tort-feasor, subject to exemplary or vindic- 

 tive damages. "The King (Sovereign) can do no wrong." The acts, 

 in respect to which compensation is asked in behalf of these British 



l 3 Wheaton's U. S. Repts.,546; see also Smith us. Coudry, 1 flow. U.S. Repts., 28-34. 



2 First American edition, from third English edition, p. 56. 



3 Hadley vs. Baxendale, 'J Exeh. 341; Masterton vs. Mayor of Brooklyn, 7 Hill, 62. 



