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"All questions relating to the repatriation of officers and men of the Spanish forces and of their families, and of the expenses which said repatriation may OCcasion, shall be referred to the government of the United States at Washington."

and the Philippine Islands. As such agents,, written terms of capitulation, of which Ceballos & Company executed a contract article 5 is as follows: with the United States, a copy of which is in the margint to safely transport from Cuba to Spain the troops of Spain surrendered at Santiago de Cuba. Under this contract the wives and children of Spanish officers were carried in the cabins, and, without question, the first-class rate was paid for the transportation.

The city of Manila surrendered the 13th of August,*1898, and August 14 the United States and Spanish authorities agreed upon

+Cuban Contract.

Sealed proposals having been invited for the transportation of the Spanish prisoners of war who surrendered to the United States forces in Cuba, from Santiago de Cuba to Cadiz, or such port of same as might there after be designated, and the proposal submitted by J. M. Ceballos & Company, of New York, having been duly accepted:

It is hereby, on this 21st day of July, 1898, agreed by and between the Secretary of War of the United States and said J. M. Ceballos & Company, that said company shall transport well and safely all of the troops of Spain that were surrendered by General Toral to the Army of the United States in Cuba, in the capitulation entered into by him at Santiago de Cuba, and from said Santiago de Cuba to such port in Spain as the Secretary of War of the United States may designate, and that the government of the United States will pay for such transportation, and for the subsistence and delivery on shore of the prisoners, the sum of twenty dollars ($20) for each enlisted man or private soldier, and the sum of fifty-five dollars ($55) for each officer so delivered.

The said company further stipulates that said subsistence furnished by the company shall be equal to United States Army garrison rations; that cabin accommodations are to be supplied for the said officers, and third-class or steerage accommodations, having suitable galley accommodations, with ample space and ventilation, for the enlisted men or privates; that, for the purpose aforesaid, it will have at Santiago de Cuba within seventeen (17) calendar days from this day (that is to say, on or before the 7th day of the month now next following) seven (7) steam vessels with a total capacity for the conveyance of at least ten thousand (10,000) prisoners in conformity with the foregoing stipulations, and ready to take them on board and proceed immediately to Spain; and the remaining vessels, in number and capacity as the Secretary of War may notify the company, within twenty-one (21) days from the date of such notice.

The Secretary of War stipulates that the United States will give safe conduct as against the Army and Navy of the United States to the vessels of the company engaged in the business aforesaid while proceeding to Santiago and from there to Spain,

The following statement as to the situation at Manila and the making of an oral contract and subsequently of a written contract are taken from findings made below.

There was surrendered to the United such safe conduct not to apply to ships already seized or in blockaded ports, and the ships employed as aforesaid to have only such armament as is customarily carried by merchant ships. Such safe conduct is to extend to foreign West Indian, Cuban, and Spanish ports, and to remain in effect until the prisoners are unloaded in a Spanish port designated, and is expressly made applicable to steamers of the Spanish Transatlantic Line under the Spanish flag.

For the better security of such safe conduct a document in the following form and duly signed will be furnished to the company for each ship, which shall be exhibited on demand, together with a copy of this contract, to any officer of the Army or Navy of the United States visiting the vessel: "The President of the United States to all whom it may concern, greeting: This is to certify that the is employed under contract with the government of the United States in the business of transporting from Santiago de Cuba to a port in Spain Spanish prisoners heretofore surrendered to the Army of the United States in Cuba; that the government of the United States has guaranteed safe conduct for this purpose to the in going to and from Santiago de Cuba and until the disembarking of said prisoners in a Spanish port. "All persons under the jurisdiction of the United States are required to respect such guarantee.

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The company further stipulates that it will furnish the bond of for the proper and faithful performance of this contract.

The Secretary of War agrees that the United States will deliver the prisoners aforesaid on board at Santiago within a reasonable time after the vessels are ready, and to the number of at least ten thousand (10,000) men, five hundred (500) officers, and that the payment of the said twenty ($20) dollars and fifty-five ($55) dollars for each man and officer to the numbers last aforesaid shall be made when satisfactory evidence that the prisoners have been transported and delivered in accordance with this contract is presented to him.

Witness our hands and seals this 21st day of July, 1898.

R. A. Alger, Secy. of War.
J. M. Ceballos & Company.

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States forces at Manila on August 13, 1898, a large number of civil, naval, and military officers and their families, and a much larger number of enlisted men, together with the wives and children of some of these enlisted men. Many of these were in a pitiable condition physically, exhausted with exposure and disease,-1,200 being sick at one time, all of them fed, guarded, and attended at the expense of the United States. Smallpox had been prevalent and infection was apprehended. The civil prisoners included Spanish civil officers on duty in the Philippine Islands under the government of Spain. Many of these had wives and children with them. There were besides a number of civilians, such as nurses, nuns, monks, friars, sisters of charity, and lady pensioners. The United States treated all of these classes as prisoners of war, and had supreme control of them after the surrender of Manila until they were delivered aboard plaintiff's ships for transportation, at which time the supervision of the United States ceased. Spanish officers had, in the meantime, only such supervision over their troops as the United States permitted.

General Otis, commanding the United States forces in Manila, considered that an emergency existed requiring immediate action; and, on October 7 and October 24, 1898, cabled the War Department at Washington the request of the Spanish general at Manila for permission to allow sick Spanish officers and soldiers to depart for Spain. Permission being granted, these officers and soldiers were shipped on vessels of the Compañía Transalántica by the Spanish authorities in Manila, acting under the supervision and control of the United States authorities, but under an oral agreement with Ceballos & Company, as herein

after stated.

In the emergency deemed existing by the commanding general, and communicated to the War Department, the Secretary of War, in October or November, 1898, entered into an oral agreement with Ceballos & Company, by which the latter agreed to transport such of the Philippine prisoners as the United States desired to return to Spain, the price to be paid for such transportation to be the price fixed after the United States should advertise for bids for such transportation, under contract expected thereafter to be entered into under the terms of a treaty of peace between the United States and Spain.

Under this oral agreement, Ceballos & Company immediately began furnishing vessels, and the transportation of the Philippine prisoners commenced by a ves

sel which sailed from Manila, November 7, 1898, and continued until another and a written contract was entered for the transportation of those prisoners not transported under the oral agreement.

The shipments under the oral contract were five in number, and the wives and children of officers were carried in the cabin, as under the Cuban contract.

On December 10, 1898 [30 Stat. at L. 1754], by the treaty of peace, it was stipu lated in paragraph 1, article 5, that

"The United States, will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces." And in article 6, that

"Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses in connection with the insurrections in Cuba and the Philippines and the war with the United States.

lease all persons made prisoners of war "Reciprocally, the United States will re

by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines.

"The government of the United States will, at its own cost, return to Spain, and the government of Spain will, at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article."

On January 20, 1899, the Quartermaster General, U. S. Army, by direction of the Secretary of War, invited sealed proposals "for the transportation of the Spanish prisoners of war now in the Philippine Islands to Cadiz or such other ports of Spain as may hereafter be designated." Among other things it was stated in the advertisement as follows:

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"Their number is estimated as about 16,000 officers and enlisted men. Cabin accommodations are to be supplied for the officers and third-class or steerage accommodations, having suitable galley accommodations, conforming to the United States requirements as to space and ventilation, for the enlisted men.

"Proposals will state the price per capita for transporting officers and for transporting enlisted men, and for their subsistence, and delivering them on shore at the Spanish port or ports to be designated, and will be accompanied by a guaranty that the prison

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ers will be comfortably cared for and sub- | of peace entered into by and between the sisted while on the journey.

"Payment for the service will be made when evidence is furnished that the ship has arrived with her passengers at point of destination. The number of officers and men counted aboard at place of embarkation by the quartermaster is to determine the number to be paid for."

The following bid was submitted:

representatives of the governments of the United States and of Spain, signed at Paris on December 10, 1898, it is mutually agreed and stipulated in the first paragraph of article 5 that—

""The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces.'

"Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines.

"Sir: In accordance witth the advertise- "And in article 6, which reads as follows: ment of Gen. M. I. Luddington, Quarter- "Spain will, upon the signature of the master General, U. S. Army, copy of which present treaty, release all prisoners of war, is hereto attached, I propose, on behalf of and all persons detained or imprisoned for Messrs. J. M. Ceballos & Company, agents political offenses in connection with the inof the Compañía Transatlántica, de Barce-surrection in Cuba and the Philippines and lona, to furnish transportation for the the war with the United States. Spanish prisoners now in the Philippine Islands to any port or ports in Spain. Their number estimated at 16,000 officers and enlisted men. I propose to use in this service the steamers named in the annexed list, which fully sets forth the classification of each, the tonnage capacity of each, their speed, the berth accommodations upon each, and the approximate length of time required by each vessel to make the voyage to Spain. (The length of time is estimated from Manila.) Said list gives the time at which each vessel will arrive in or off the harbor of Manila for orders, the act of God and all dangers of the sea excepted.

"It is proposed not to load the steamers beyond two thirds of their steerage capacity. This is considered not only advisable as an act of humanity, but absolutely necessary, owing to climatic conditions and length of voyage.

"I further propose to call at any port of the Philippine Islands that the U. S. government may designate, provided the vessels can safely lay afloat.

"The charge for this service is dependent on the ports of call in the Philippines, and also on the quarantine regulations in Spain; but I propose and hereby agree to do this service at a price not to exceed in any case:

For each officer

$215 00 For each enlisted man..... 73 75 "It is proposed to furnish subsistence equal to the United States garrison rations, or, if preferred, the usual rations furnished under Spanish regulations.

""The government of the United States will, at its own cost, return to Spain, and the government of Spain will, at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article.'

"And whereas sealed proposals having been invited for the transportation of the Spanish prisoners from Manila or such other port in the Philippine Islands as may be designated, to Cadiz or such other port in Spain as may be designated, and in response thereto the proposal of J. M. Ceballos & Company, of New York, having been duly accepted by the Secretary of War of the United States:

"Therefore this article of agreement is made and entered into this 4th day of March, 1899, by and between the said J. M. Ceballos & Company, for the transportation of the said prisoners of war from the Philippine Islands to Spain, as are designated in the terms of the treaty of peace, referred and quoted herein.

"The said J. M. Ceballos & Company hereby agree to furnish good and safe transportation for such number of prisoners of war and persons as may be designated by the Secretary of War, from the Philippine “I will furnish a satisfactory bond for the Islands to such port in Spain as may be faithful fulfilment of this service."

This bid was accepted, and on March 4, 1899, a contract was executed between the Secretary of War and Ceballos & Company, by their attorney in fact, which, omitting the attestation clause and signatures, is as follows:

designated by the Secretary of War, and to furnish to them subsistence while en route and on board the ships, and to deliver them on shore in Spain.

"The said company further agrees that, for the purpose herein stipulated, they will provide a sufficient number of steamships

"Whereas, under the terms of the treaty for the safe and comfortable transportation

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of the prisoners of war and such other persons as may be designated by the Secretary of War, with cabin accommodations for all officers, and third-class or steerage accommodations, space,* and ventilation for the enlisted men and other persons on board each ship; that the subsistence furnished by the company shall be equal in every respect to the United States army garrison rations.

"The company further agrees to provide a sufficient number of steamships in the harbor of Manila to perform the entire service as herein stipulated, so that the embarkation of the last of the prisoners of war and the other persons may be made not later than May 1st, 1899; that the ships to be used for the purpose are named and described in the list submitted with their proposals, copy of which is hereto attached as a part of this agreement, and the company agrees that no troops shall be transported upon any one of said ships in excess of two thirds of the steerage capacity of each ship, as shown in the list referred to. "In consideration of the faithful performances of the foregoing stipulations and in compensation therefor, the Secretary of War hereby agrees, on behalf of the United States, to pay to the said J. M. Ceballos & Company, for the transportation, subsistence, and delivery on shore of each commissioned officer, the sum of two hundred and fifteen dollars ($215), and for each enlisted man, private soldier, or other person designated by the Secretary of War for transportation the sum of seventy-three dollars and seventy-five cents ($73.75), the said sums to be due and payable upon evidence that said officers, enlisted men, or persons have been transported, subsisted, and delivered on shore in Spain.

"It is further agreed that the prisoners of war and all other persons to be transported shall be delivered by the United States on board the ships at such ports in the Philippine Islands as may be designated by the Secretary of War, within five (5) working days after the vessel or vessels are ready to receive them. Demurrage, if any, earned by any such steamer or steamers, to be paid by the United States at the rate of fifteen cents (15c.) per gross ton register per day, and for any prisoners on board at the rate of $1.50 for each officer per day and 40 cents for each enlisted man per day. An account of the number of officers, enlisted men, or other persons to be taken at the time of embarkation by a representative of the government of the United States and a representative of the said J. M. Ceballos & Company, and payment to the said company shall be made upon the basis of the number of officers, enlisted men, and persons counted on each ship.

"It is further agreed that all steamers shall call at the port of Manila for orders, and should the Secretary of War elect to deliver prisoners to any steamer or steamers at any other port in the Philippine Islands, orders to that effect must be given within twenty-four hours after the steamer or steamers have reported to the commanding officer at the port of Manila.

"No member or delegate to Congress, nor any person belonging to, or employed in, the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise therefrom."

The findings show that the vessels which were supplied to perform this contract, like those which were supplied to perform the Cuban contract and the subsequent Philippine oral contract, were furnished with cabin and steerage accommodations, and that the officers, civil and military, with their respective families, were carried in the cabin, and in the steerage were carried the enlisted men and their families and other persons entitled to third-class passage.

For the first twenty-five shipments payment was made by the United States upon certificates of the masters of the respective ships on which said prisoners of war and other persons were transported, certified to be correct at the place of landing, showing the different classes of passengers.

The court below also found as follows:

The obligation of this country to repatriate any other persons or classes of persons than those who were actually prisoners of war or political prisoners was questioned by the Secretary of War.

On December 18, 1899, the Secretary of War addressed an official letter to the Attorney General, stating that, under the terms of the treaty of peace, the obligation of the United States to send to Spain at its own cost the wives and children of officers and soldiers and civil prisoners designated as officials, and their wives and children, was not clearly defined, and that the rates of compensation for the transportation of such persons were not set forth in the contract. But in that connection the Secretary requested an opinion as to the construction of the treaty of peace in regard to the scope of the description of Spanish prisoners,-whether and to what extent the treaty included the repatriation of noncombatants at the cost of the United States. The Secretary further requested a construction of the contract rate of compensation which might be allowed and paid per capita for each class of persons charged for under the terms of the contract with Ceballos & Company. On January 6, 1900,

On January 19, 1900, the Secretary of War notified one of the firm of Ceballos & Co. that he had, on January 17, cabled*General Otis, at Manila, that civil officials, prisoners' wives and children, were entitled to passage to Spain, and that the contract provided for shipment of civil officials as officers on the basis of $215 per capita; that wives and children of officers, soldiers, and civil officials were entitled to transportation to Spain on the basis of $73.75 per capita.

the Attorney General answered this official communication of the Secretary of War, and construed the contract substantially as follows: That it was questionable whether all the persons tendered and transported were not within the purview of the treaty, but that this was a question for the United States authorities, and not for the carrier, who would have been guilty or might have been guilty of a breach of his contract in refusing to carry persons designated to be carried by the United States. The At- As shown on statement, copied in the torney General further informed the Secre- margin,t the United States paid to Ceballos tary of War that the contract related to the & Company, under the Philippine oral and transportation of prisoners; that, as be- written contracts, the sum of $1,544,595. It tween the contracting parties, it rested will be seen that no payments were made in alone with the United States to say whom respect of the transportation of other perit would send back to Spain, and, in doing sons than officers and enlisted men until so, to alone determine who were prisoners, after the Attorney General had rendered the and who came within the purview of the opinion above referred to. Of the various treaty or the contract. That the words classes of persons specified, all but "of"other persons" were included within "en-ficers"*were paid for at steerage or thirdlisted men;" and that, as to all enlisted class rates, and this regardless of whether men, and all persons other than officers, military and civil, $73.75, and no more, was payable by the United States under the contract.

cabin or steerage accommodations were furnished. Minor children, that is, those under the age of ten years, were paid for at half the adult rate.

+ Payments.

Sundry Checks Received by J. M. Ceballos & Company-Payments on a/c by United

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