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May 13, 1991


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 judgment.


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 follows:

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 the battle:

    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
  gallant wounded."
    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 ...

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