Mr. Chief Justice Waite
delivered the opinion of the court.
After reciting the facts as above stated he continued :
That the steamer was not lawful prize or the subject of capture was expressly decided on the former appeal. It was also impliedly settled that the capturé ivas without probable cause, for it was said that the owner was undoubtedly entitled to a fair indemnity for the losses sustained, the only difficulty being as to the amount. These questions are, therefore, no longer open. Clark v. Keith, 106 U. S. 464; Supervisors v. Kennicott, 94 U. S. 499.
The' first of the remaining questions to be considered is whether a decree can be entered against^ the United States for damages. As the capture was made by the army, or by the army and navy operating together, it inured exclusively to the benefit of the United States. There is no distribution of prize money in such a case. Porter v. United States, 106 U. S. 607; The Siren, 13 Wall 389. The United States were, therefore, in legal effect the captors, and they pame voluntarily into court to secure for themselves the benefit of what had been done. They deliberately adopted the acts of the military and naval officers as their- own, and came, as captors, to condemn their prize. -Offers to purchase the vessel were made and declined before she was seized, and soon after the seizure she was char-. tered and put into actual use Avithout any attempt at securing an adjudication. It is eAÚdent, also, that the capture must have been the subject of diplomatic correspondence between the government of Spain and the United States before the vessel Avas broughtqn for adjudication, because on the 6th of May, 1862, after the vessel got to New York, and before the libel was filed, Mr. Seward, the then secretary of State, Avrote the district attorney for the Southern District of New York, as follows : '
" Sib : Noticing the arrival at New York of the Spanish steamer Nuestra. Señora de la Regla, which was seized at Port Royal by General Sherman for ah alleged illegal breach of neutrality, I now transmit the papers found on board of her, and an abstract of them which I caused to be prepared and which you may find useful."
Although the libel w;as filed on the 9th of June, 1862, and the claim was promptly put in, the adjudication' was not had until June of the following year, when all further proceedings were stayed with,the consent of both parties to await an adjustment of damages by the two governments. Nothing further was done until nearly seven years afterwards, when the secretary of State informed the Spanish government of the wish of the United States that the parties interested should apply to the court, which still retained jurisdiction, for such belief as justice demanded, and in the mode that tribunal should deem most proper and convenient. Thereupon, on motion of the claimant, and with the consent of the United States district attorney, the reference was ordered to ascertain the damages. Under these circumstances we cannot but think the United States have voluntarily submitted themselves to-the court at the instance of the Spanish government, and with the consent of the claimant, for the purpose of having the questions of dam- ages growing out of the capture judicially settled according to the rules applicable to private persons in like cases.
It is objected, however, that the executive department of the government had no power, in the absence of -express legislative' authority; to make such a, submission. It was the duty of the United States, under the law of nations, to bring .all captured vessels into a prize court for - adjudication. If that had not been done in this instance, the Spanish government would have had'just' cause of complaint, and could have demanded reparation for the' wrongs that had been done one of its subjects. The executive department had the right to bring the suit. In that suit it had been determined that the capture was unlawful.. Necessarily, therefore, the question of damages to the owner of the captured vessel arose. Since, without the • consent of the United States, no judgment for damages could be rendered against them in the pending suit that could be enforced by execution, the Spanish government had' the right to assume the prosecution of the claim, and it did. Necessarily the negotiations on the part of the United States under this claim were conducted by the executive. After long delay no agreement was reached, and as a last resort for ending the controversy, it was determined to refer the whole matter to the court for judicial inquiry and determination. "We see no.reason why this might not "be done in such a case. It is true any judgment that may be rendered cannot be judicially enforced, but the questions to be settled are judicial in their character, and are incident's to the suit which the United States were required to bring to enforce their rights as captors. It is too late now to insist that the case is not one of prize, because in the libel it is expressly alleged that the'vessel was captured as lawful prize, and condemnation was asked on that account. "When, therefore, the United States, through the executive of the nation, waived their right to exemption from suit, and asked the prize court tb complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission^ and that it is the duty of the court to proceed to the final determination of all the questions legitimately involved.
The next inquiry is as to the amount of damages. The duty of a captor is to institute judicial proceedings for the condemnation of his prize-without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum v. Mayberry, 2 Wheat. 1; The Apollon, 9 Wheat. 362; The Lively, 1 Gall. 314; The Corier Maritimo, 1 Rob. 287.
Upon the facts in this case there can be no doubt of the propriety of such an allowance for the extraordinaiy detention of the vessel before she was delivered up for. adjudication, especially since she was detained for the express purpose of use by the United States. And as to the amount of the allowance, there is no opportunity for discussion. The United States were willing and actually contracted to pay $200 a day for her use if .she was not in fact lawful prize, and that is shown to have been a reasonable price for her charter at the time. She was seized on the 29th of November, and it is fair to assume that if due diligence had been used she might have been surrendered for adjudication by the 16th of December, when her charter began to run. She was not actually surrendered until the 9th of June — a delay of 175 days beyond.what was necessary. It is not disputed that her value at that time was $30,000. She, cost when built $50,000; and was new when captured. As-she has never been restored under the order to that effect, there can be no doubt of the liability'of the United States for her value, when at their request she was delivered into their possession by the court. It is not a matter of any importance that the certificate of deposit in -the treasury of the amount of her appraised value was not filed. By taking the vessel on the', terms imposed by the court, the United States impliedly agreed to restore her in as good condition as she was when taken, or pay her value in money. By the surrender of the vessel for adjudication, the United States relieved themselves from any further liability for damages in the way of demurrage, and became bound for the vessel instead.
The allowance for demurrage includes reasonable compensation for the pay and expenses of an agent to look after the interests of the owners up to the time of the delivery of the vessel to the navy department by the court. After that no agent was. necessary. From, that time the case stood as though a sale had been made and the proceeds paid' into the registry of the court.
Our conclusion is that damages should be allowed as follows:
For unnecessary and unusual delay in proceeding to
adjudication, 175 days at $200................. $35,000
For value of vessel...............................' 30,000
In all.................................... $65,000
To which add interest, at the rate of six per cent, per annum, from, the time of the order of restitution, June 20th, 1863, until the- decree.
The decree of. the district court is reversed and the canse remcmded with instructions to enter another decree in accordance with this opinion.