- The Washington Times - Saturday, September 8, 2001

One of the most interesting historical subplots of the Civil War concerns the "exploits" (if you are a Southerner) or "depredations" (if you are a Northerner) of the CSS Alabama. During its brief life, that Confederate cruiser sank or captured at least 64 U.S.-flagged merchantmen.
Along with a handful of other Southern raiders, it caused a great loss of U.S.-flagged merchant shipping and arguably crippled forever the American maritime industry. It also nearly brought the United States and England to the point of war. All told, Confederate cruisers such as the Alabama, the Florida and the Shenandoah captured or destroyed about 300 ships. The value of the ships and cargo seized or destroyed by the Alabama was estimated at more than $3 million. In addition, about 1,000 American ships transferred to British flag, out of fear of the cruisers.
Much has been written, including in these pages, about the Alabama and its colorful captain, Raphael Semmes. Less is heard about the legal and diplomatic consequences of the raiders' activities. During the run of the Alabama and the other cruisers, Northern newspapers and pamphleteers kept up a howl of protests against their actions. They called for the United States to seek reparations from England on the grounds that the Alabama and other ships were built and outfitted in British ports, with British knowledge, in violation of international principles of neutrality in general and England's own Foreign Enlistment Act in particular.
In October 1863, Secretary of State William Seward wrote to the British government, saying it was responsible for the damages inflicted by the cruisers and demanding indemnification. The British showed no inclination to concede liability, however, and President Abraham Lincoln was reluctant to press the matter during the war. With the end of the war and Lincoln's death, the issue came to life again. Concurrently, a change in government in London put England in a more accommodating mood.
Meanwhile, the claims of U.S. citizens and corporations for direct losses — as well as indirect losses such as increased insurance costs and lost business — mounted. A feeble effort by President Andrew Johnson's administration to resolve the claims through the Johnson-Clarendon Convention of 1868 was rejected by the Senate.
Sen. Charles Sumner, one of the ringleaders calling for substantial reparations, declared that the total damages to private and public interests amounted to more than $2 billion. He asserted that the cruisers doubled the duration of the war. One of his purposes in advancing such exaggerated claims was to pressure England to cede Canada by way of reparation.
Cooler heads prevailed, however, and eventually the two countries negotiated the Treaty of Washington, signed on May 8, 1871, and ratified by the Senate. In it, England apologized for the "escape" of the Alabama. Although the Alabama claims were its primary focus, the treaty also embraced certain Canadian fishery and boundary claims against the United States. The treaty was novel in certain important respects. It established the principle that a country cannot interpose its own domestic law as an excuse for failure to meet international obligations. Rather, it must exercise "due diligence" to prevent hostile expeditions from its territory.
This principle was codified in the three famous "Alabama rules." A neutral government is bound to use due diligence:
m To prevent the fitting out, arming or equipping within its jurisdiction of any vessel that it has reasonable grounds to believe is intended to cruise or to carry on war against a power with which it is at peace.
m Not to permit either belligerent to make use of its ports or waters as the base of naval operations or for the purpose of augmenting military supplies or recruiting men.
m To prevent violation of the foregoing duties.
These principles of equity and conduct were meant to serve as guiding principles between justice in the abstract on the one hand and the rule of decision on the other. They continue to have modern-day application with respect to the responsibilities of nations for terrorist acts launched from their soil and to licensing arms sales by private merchants.
The Treaty of Washington was also novel in establishing a multinational arbitration award tribunal to hear America's claims against England arising out of the activities of the Alabama and the other cruisers. There had been earlier international arbitrations, such as the Jay Treaty, but they tended to concern limited claims of one state against the government of another. The Alabama claims, on the other hand, concerned a significant political issue — the limits of neutrality. They led to a number of treaties, particularly between the United States and Great Britain, providing for the arbitration of disputes.
Representatives to the arbitration were appointed from England, the United States, Switzerland, Brazil and Italy. They met in Geneva. America's claims initially included "indirect" claims for extension of the war, increased insurance premiums and loss of U.S.-flagged shipping. U.S. arbitrator Charles Adams persuaded his countrymen to drop the indirect claims, however. The direct claims amounted to nearly $20 million and were asserted in connection with the actions of 15 cruisers. The claims asserted were those of individuals, as well as the government's claim for the costs associated with pursuit of the cruisers.
All the claims, however, were presented by and on behalf of the United States.
The arbitrators announced their decision on Sept. 15, 1872. They found against Great Britain with respect to the actions of the Alabama, the Florida and the Shenandoah and awarded $15.5 million in gold as compensation for direct claims only. The award was in gross to the United States; it made no recommendation or provision for how the proceeds were to be divided. This sum was paid into the U.S. Treasury. The arbitrators found in favor of Great Britain with respect to the other ships.
In 1874, Congress passed legislation creating the Court of Commissioners of Alabama Claims to hear claims against the fund. The president, with the advice and consent of the Senate, was to appoint five judges. The law excluded claims arising out of losses other than those caused by the three "inculpated" cruisers, i.e., the Alabama, the Florida and the Shenandoah.
The court had two distinct incarnations. During its first existence, its charter was extended several times to allow time for late claims to be filed and for the court to complete its work. The first five judges of the court were from Michigan, New Jersey, Pennsylvania, Mississippi and Iowa. The court was vested with all the powers of other federal courts. There was no provision for appeal of the court's decisions, however.
The court was to determine the amount and validity of claims. Only direct, nonreimbursed claims could be asserted. All indirect claims were rejected, including lost profits. Insurance companies could collect for their payouts only to the extent that they could demonstrate a net loss for the war years. Claimants had to take an oath that they had remained loyal to the Union during the war. Attorneys could claim part of the amount awarded.
The first court disposed of about $14 million in direct claims. It awarded judgments of nearly $10 million. With accumulated interest and premiums from a bond sale, however, the amount left was $10,089,004.96. Allowing that money to revert to the Treasury proved unsatisfactory to some legislators, particularly those who had bought up the indirect claims for something less than full value.
Consequently, despite a loud chorus of accusations of scandal, a new statute was adopted in 1882 reconvening the Court of Commissioners of Alabama Claims for a period of two years.
The new court had three instead of five judges and the grounds on which it could award damages were expanded. Most notably, claimants were no longer limited to persons damaged by the Alabama, the Florida or the Shenandoah.
Instead, direct losses caused by any other Confederate cruiser could be compensated, despite the Geneva arbitrators declining to find England liable for other cruisers.
In addition, any entity that paid increased war insurance premiums after the sailing of the cruisers could make a claim on the fund. The net effect was to treat the claims rejected in the Geneva arbitration as claims against the United States. The second court received more than 6,000 new claims totaling about $28 million. The court awarded $19.7 million, more than all of the monies available. The direct loss claims were paid in full; claims for increased insurance costs were paid on a pro rata basis.
The judgments of the court were not appealable, but peripheral litigation eventually sprang up in the Court of Claims over enforcement of judgments, attorney fees and ownership of recoveries. In Wright vs. Tebbits, 91 U.S. 252 (1875), the Supreme Court took the position that the commission was a "quasicourt," in no material respect different from the various commissions that had been specially created in the 19th century to settle and adjust disputed claims pursuant to various treaty stipulations or otherwise, such as the "Southern Claims Commission," the "Mexican Claims Commission" or the "Spanish Claims Commission."
The last piece of litigation involving the Alabama arose in connection with a bell, supposedly from the Alabama, that had surfaced in an English antique shop in the 1950s. Although there was a question as to the authenticity of the artifact, in United States vs. Steinmetz, 763 F.Supp. 1293, (D.N.J. 1991), aff'd 973 F.2d 212 (3rd Cir. 1992), the United States established its ownership rights.
The decision held that the Confederate government owned the Alabama, that the ship was not a piratical vessel, and that the United States succeeded to ownership of the vessel and hence the bell.
The remains of the Alabama were found by French divers in 1984, in 200 feet of water, seven miles off the coast of France in French territorial waters, where it had been sunk by the USS Kearsage in June 1864.
The wreck was the subject of negotiation between France and the United States, and France ultimately agreed that the wreck and its artifacts belonged to the United States. The parties agreed to create a joint scientific committee to oversee salvage, with the expectation that some of the recovered pieces will go on tour in various countries. Groups in the United States, England, France and even South Africa are interested in the remains of the vessel.
The wooden portions of the ship above the water line are largely destroyed, but its armaments, engines and propeller remain. Several pieces have been recovered, including the copper rim of the wheel, which is now housed at the Navy Museum in Washington.
Once again, the spirit of the Alabama is on display to the world, "Aide Toi et Dieu T'Aidera" — "Help Yourself and God Will Help You."

Eric Bruggink is a judge in the U.S. Court of Federal Claims in Washington. This article is adapted from a lengthier one, "The CSS Alabama Claims," published in the Alabama Lawyer in 1996. The views expressed are personal and are not intended to reflect those of the court.


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