DAMAGES CLAIMED BY GREAT BRITAIN. 225 



In Sutherland on Damages, vol. I, p. 173 (now a standard authority 

 in the courts of the United States), the rule is stated as follows: 



The value of the property constitutes the measure or an element of 

 damages in a great variety of cases both of tort and contract; and 

 where there are no such aggravations as call for or justify exemplary 

 damages, in actions in which such damages are recoverable, the value 

 is ascertained and adopted as the measure of compensation for being 

 deprived of the property, the same in actions of tort as in actions upon 

 contract. In both cases the value is the legal and tixed measure of 

 damages and nor discretionary with the jury. * * * And, more- 

 over, the value is rixed in each instance on similar considerations at the 

 time when by the defendant's fault the loss culminates. (Grand Tower 

 Co. 17*. Phillips, 23 Wall., 471. Owen vs. Kouth, 11 G. B., 327.) 



To recapitulate: None of the items of these several claims for "esti- 

 mated catch," or " probable catch," for the season or voyage in which 

 the seizures took place can be considered, because they are in the 

 nature of prospective profits, and fall within the rule adopted by the 

 tribunal in the Alabama Claims, and the other authorities cited; and 

 all the items for the probable earnings of these arrested vessels, subse- 

 quent to the seizure, fall within the same objection of uncertainty and 

 contingency, and the further objection that the conversion of the prop- 

 erty was completed by the seizure, and the owners' only remedy was 

 for the value of the property so seized at the time of the seizure. 



But, if the Tribunal for any reasons shall deem itself required to 

 pass upon these items or find any facts involved therein, except that 

 of their invalidity, we then briefly submit that the "estimated" and 

 "probable catches" are altogether overstated and extravagant. 



In the declaration of James Douglas Warren, in support of the 

 claims in behalf of the alleged owner of the Say ward, Anna BecJc, Grace, 

 and Dolphin, he states that the estimate is made on the basis of three 

 hundred and fifty skins taken by each boat and canoe for the full 

 season. 1 



In the report of the British Commissioners, forming part of the Brit- 

 ish case, 2 it is shown that the average catch per canoe or boat for the 

 British sealers for the same year was 101 seals, or less than one-half of 

 Capt. Warren's average; and in the same paragraph, the British Com- 

 missioners say: 



The actual success of individual sealing vessels of course depends so 

 largely upon the good fortune or good judgment which may enable 

 them to fall in with and follow considerable bodies of seals, as well as 



1 Case of Her Majesty's Government, Schedule of Claims, pp. 18, 22, 25, 21). 

 "Report of Br. Com., sec. 407, p. 74. 

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