The opinion of the court was delivered by: Debevoise, District Judge.
Since the bell had been deposited in Court there was no need
for preliminary injunctive relief. Mr. Steinmetz answered and
counterclaimed, seeking (1) a determination that the bell is
his property, (2) compensation on a theory of quantum meruit
and (3) compensation on a theory of unjust enrichment. I
suggested to the parties that they cross-move for summary
judgment and, pending a hearing on the motion, seek to arrive
at a fair and reasonable disposition of the case.
Unfortunately, the efforts to reach agreement failed and it
thus became necessary to rule upon cross-motions for summary
Many events preceded the arrival of the bell in Newark.
These events are recounted in the Official Records of the
Union and Confederate Navies in the War of the Rebellion
(Government Printing Office 1896), in the works of recognized
historians of the Civil War, in the testimony in this case of
Naval Historian William S. Dudley and in the testimony of Mr.
Steinmetz, an antique dealer who has great expertise in the
field of military artifacts. These events can be summarized as
In 1847, fourteen years before the start of the Civil War,
the American fleet was engaged in the war with Mexico. On one
of the Navy's ships two officers shared a cabin, Lt. Raphael
Semmes and Lt. John Winslow. In 1864 the paths of these two
officers were to cross again.
In 1861 James D. Bulloch, representing the Confederate
States of America, proceeded to England. His mission was to
obtain ships for the Confederacy. Among other activities, he
arranged for two warships to be built in Liverpool. One was
the vessel named the Florida; the other was the ALABAMA.
Thomas S. Dudley was the United States Consul in Liverpool.
His most important assignment was to seek enforcement of
Britain's Foreign Enlistment Act which forbade the
construction and arming of warships in British territory for
a belligerent power. Despite Dudley's efforts the British
authorities permitted the Florida to depart from Liverpool on
the technical ground that she was not a warship since her arms
were shipped out separately on another vessel.
James M. McPherson in his Battle Cry of Freedom describes the
departure of the other ship, the ALABAMA, from Liverpool and
its subsequent activities:
The willingness of British officials to apply a
narrow interpretation of the Foreign Enlistment
Act encouraged Bulloch's efforts to get a second
and larger cruiser out of Liverpool in the summer
of 1862. In a contest of lawyers, spies, and
double agents that would furnish material for an
espionage thriller, Dudley amassed evidence of
the ship's illegal purpose and Bulloch struggled
to slip through the legal net closing around him
by July. Once again bureaucratic negligence,
legal pettifoggery, and the Confederate
sympathies of the British customs collector at
Liverpool gave Bulloch time to ready his ship for
sea. When an agent informed him of the
government's belated intention to delay the ship,
Bulloch sent her out on a `trial cruise' from
which she never returned. Instead she
rendezvoused at the Azores with a tender carrying
guns and ammunition sent separately from Britain.
Named the ALABAMA, this cruiser had as her
captain Raphael Semmes, who had already proved
his prowess as a salt-water guerrilla on the now
defunct CSS Sumter. For the next two years Semmes
and the ALABAMA roamed the seas and destroyed or
captured 64 American merchant
ships before meeting the USS Kearsarge off
Cherbourg in June of 1864.
In June of 1864 the ALABAMA entered the harbor of Cherbourg
and obtained permission from the French authorities to land
prisoners, dock the ship for repairs and take on supplies.
Meanwhile, the USS Kearsarge, under the command of Captain
John Winslow, entered Cherbourg and then positioned herself in
international waters beyond the harbor mouth.
Captain Semmes decided to do battle. By Saturday night, June
18, his preparations were complete. Between nine and ten
o'clock on June 19 the ALABAMA proceeded to sea, accompanied
by the French ironclad Frigate Couronne, some French pilot
boats and the English steam yacht, the Deerhound. The
Kearsarge awaited seven miles off shore.
John Kell, executive officer of the ALABAMA, has described
We now prepared our guns to engage the enemy on
our starboard side. When within a mile and
a-quarter he wheeled, presenting his starboard
battery to us. We opened on him with solid shot,
to which he soon replied, and the action became
active. To keep our respective broadsides bearing
we were obliged to fight in a circle around a
common center, preserving a distance of three
quarters of a mile. When within distance of shell
range we opened on him with shell. The spanker
gaff was shot away and our ensign came down. We
replaced it immediately at the mizzen masthead.
The firing now became very hot and heavy.
Captain Semmes, who was watching the battle from
the horse block, called out to me, "Mr. Kell, our
shell strike the enemy's side, doing little
damage, and fall off in the water; try solid
shot." From this time we alternated shot and
The battle lasted an hour and ten minutes.
Captain Semmes said to me at this time (seeing
the great apertures made in the side of the ship
from their 11-inch shell, and the water rushing
in rapidly), "Mr. Kell, as soon as our head
points to the French coast in our circuit of
action, shift your guns to port and make all sail
for the coast." This evolution was beautifully
performed; righting the helm, hauling aft the
fore-trysail sheet, and pivoting to port, the
action continuing all the time without cessation,
— but it was useless, nothing could avail us.
Before doing this, and pivoting the gun, it
became necessary to clear the deck of parts of
the dead bodies that had been torn to pieces by
the 11-inch shells of the enemy. The captain of
our 8-inch gun and most of the gun's crew were
killed. It became necessary to take the crew from
young Anderson's gun to make up the vacancies,
which I did, and placed him in command. Though a
mere youth, he managed it like an old veteran.
Going to the hatchway, I called out to Brooks
(one of our efficient engineers) to give the ship
more steam, or we would be whipped.
He replied she "had every inch of steam that
was safe to carry without being blown out!."
Young Matt O'Brien, assistant engineer, called
out, "Let her have the steam; we had better blow
her to hell than to let the Yankees whip us!"
The chief engineer now came on deck and
reported, "the furnace fires put out," whereupon
Captain Semmes ordered me to go below and "see
how long the ship could float."
I did so, and returning said, "Perhaps ten
"Then, sir," said Captain Semmes, "cease
firing, shorten sail, and haul down the colors.
It will never do in this nineteenth century for
us to go down and the decks covered with our
This order was promptly executed, after which
the Kearsarge deliberately fired into us five
shots! In Captain Winslow's report to the
Secretary of the Navy he admits this, saying,
"Uncertain whether Captain Semmes was ...