dissenting.
This, case comes before the court on an application for instructions to the Auditor. The evidence is clear and concise.
1. On the 6th of April, 1898, the Secretary of the Navy sent the following dispatch to Commodore Dewey, then at Hongkong:
“WASHINGTON, April, 1898.
‘‘Dewey, Hongkong:
“ Purchase immediately Nanshan and one more vessel for ’supplies. Charge special appropriation. * * * Enlist, for special service, if possible, one- year, unless sooner discharged, the crew of. Detach and order assume command of each an officer. Arm if possible.
“Long.”
2. On the 19th of April Commodore Dewey cabled the following dispatch to the Secretary of the Navy:
“HoNGKONG, April 19, 1898. “SECRETARY oe the Navy, Washington:
“Zafiro and Nanshan have not been commissioned. Have been registered as American steamers. Commissioned officers command each vessel; four men; armed. Original officers and men have been shipped merchant service. Both vessels have been cleared for the Bonin Islands, North Pacific. I believe present status preferable in the event of hostilities. They can obtain supplies and coal in Shanghai for men-of-war.
“Dewey.”
3. After the purchase of the’vessel and the shipping of her crew Commodore Dewey detailed Lieut. Commander Benj. W. Hodges to take command of the vessel. The orders of the *404commodore were verbal. They were, as detailed by Lieutenant-Commander Hodges, as follows:
“I reached Hongkong on the night of April 10, 1898, and reported to Commodore Dewey on the Olympia on the morning of the 11th — the next morning. He ordered me to go on board the Nanshan and to take with me four enlisted men. fie told mo that later on he would fit the Nanshan out with guns from the other ships of the fleet. He told me that the Nanshan was a ship that he had just bought and that she was loaded with the best quality of Welsh coal, and that she had 3,000 tons on board. He said that he had offered the officers and men of the ship double pay to stay on board of her. My duties were to take general charge of the ship and to obey all orders that either he gave me direct or through the flag lieutenant, and to execute all the movements that were ordered from the flagship, and, in genera), to control the movements and actions of the Nanshan, but not to interfere with the internal discipline, and such things as loading and discharging cargo, but to leave those matters in the hands of Captain Stovell, who was the captain of the ship before she was bought and accepted by Admiral Dewey.”
4. The movement of the Nanshan toward and at Manila are thus described by her commanding officer:
“The Nanshan was an integral part of the fleet, as much so as any other ship. She kept her position in the fleet all the way across, and after Admiral Dewey stopped the fleet at Subig Bay and ordered the commanding officer to come on board the flagship for his final instructions, I went over and received his orders for entering Manila Bay, and then returned to the Nanshan, and the fleet started in single column, the Olympia leading, followed by the Baltimore, the Raleigh, the Petrel, the Concord, the Boston, the McCullough, the Nan-shan, and the Zafiro. It was a regular fleet formation, and it was in this order that we passed the forts. The forts on the south side of the channel fired at the ships of the fleet as they were going into Manila Bay, and the Nanshan and the Zafiro passed through the whole zone of fire.”
5. The fleet was divided by Commodore Dewey into three divisions, and the Nanshan was assigned to the third division. Lieutenant-Commander Hodges thus testifies as to her part in the engagement:
“After passing the forts, the third division, of which the Nanshan was one, came up on the left flank of the other ships and steamed up in that order until we saw the lights of the *405city of Manila ahead. The order was then given by the flagship to stop. The whole fleet stopped without anchoring and lay still until early daylight. At daylight the Spanish forts at Manila and at Sangley Point opened fire on the fleet, and as soon as the land and the surroundings could be made out clearly the Admiral made signal for the first and second divisions to follow the flagship. This left the McCullough, Nanshan, and Zafiro, which comprised the third division, in reserve, while the first and second divisions steamed up and brought on the action with the Spanish fleet. These three ships stayed in reserve during the time of the action, within easy signal and supporting distance, and the Nanshan all that time was ready to join in battle in case she was ordered to do so or to render assistance to any of her ships. The flagship at 7.30 in the morning made signal to withdraw from action. They steamed out close to where we were lying and signaled for the third division to take position as before. At 11.30 the first and second divisions steamed into Sangley Point and renewed the action with the batteries on shore and such of the Spanish ships as were still in condition to fight, and again the Nanshan lay ready to obey any signal which might have been given. It was about 1 p. m. when the Spaniards hoisted the white flag at the naval station of Cavite and the Admiral then made signal to anchor at discretion. The flagship steamed up to the city of Manila and I gave orders for the Nanshan to steam up, and we went past the flagship and I anchored closer to the city than she was.”
The first and second divisions during the action formed a firing line 2,500 yards distant from the” Spanish vessels. The third division formed a line 2,500 yards in the rear of the first and second divisions. Many of the Spanish guns had a range of more than 5,000 yards, and the third division was within range of shot that might have passed over the fleet.
6. The Nanshan did not fire during the engagement, and her fire, if directed at the Spanish forts or vessels, would have been ineffective from the position which she occupied. She was able, in the opinion of her commanding officer, to “sink a torpedo boat or whip quite a number of the little Spanish gunboats which we knew the Spaniards had there. They were known to have fourteen or fifteen boats scattered around the islands, and in my opinion she could have whipped anything such as the Callao and the Urdaneta.” Admiral Dewey called her commanding officer’s attention to the fact that she “had a good ram bow.”
*406Referring now to the law of the case—
I can not say that the Nanshan was not an armed vessel, when it appears by the evidence that the Secretary of the Navy ordered her to be armed, and that Commodore Dewey armed her and reported to the Secretary of the Navy that he had done so.
I can not saj^ that the vessel was not in the service of the United States, when it appears that the United States bought her and manned her and armed her and detailed an experienced officer of the rank of lieutenant to command her.
I can not say that the vessel did not serve as an armed vessel in the attack on Manila, when her commanding officer testifies that she “was an integral part of the fleet, as much so as any other ship;” that “it was a regular fleet formation;” that she was one of the single column of vessels which passed the forts and “passed through the whole zone of fire;” that “after passing the forts the third division, of which the Nan-shan was one, came up on the left flank of the other ships and steamed in that order until the lights of the- citjr of Manila, were seen ahead.”
I can not say that the vessel was not within signal distance and able to render effective aid if required, when it appears by the testimony of her commanding officer that she was. “during the time of the action within easy signal and supporting distance and all that time ready to join in battle in case she was ordered to do so, or to render assistance to any of the ships,” and that she obeyed every general signal order that was given during the engagement.
I can not say that the crew of the Nanshan were in the merchant service or acting simply as the crew of an unarmed transport, when it appears by the commanding officer’s evidence that they encountered all of the dangers which the men of the Regular Navy did from torpedoes and torpedo boats and in passing the forts from the fire of their batteries.
I can not s&y that the right given by statute to such men to share in the bounty awarded to a fleet should bo defeated because the President had not fixed specifically their rate of pay, when it appears that by his direction, through the Secretary of War, that matter was referred with power to Commodore Dewey, and Commodore Dewey did fix the rate of pay, *407and that that.pay was substantially the rate of pay fixed by the President for seamen and common seamen in the Navy.
As to certain evidence relied upon by the opposing counsel relating to acts which occurred subsequent to the destruction of the Spanish fleet, and as to the subsequent reports and letters and communications of officers which were not a part of what may be called the res gestae, I am of the opinion that they are inadmissible as evidence and can not affect the rights of the crew of the Nanshan as defined by statute, which rights necessarily became fixed at the moment of the destruction of the Spanish fleet.
My conclusion is that Lieutenant-Commander Hodges is entitled to recover one-tenth of the prize money which should be awarded to his vessel, and that the crew are entitled to participate in the distribution.