This was an Appeal from the Court of Admiralty. It was argued on
the 7th and 8th of July by Lewis, Wilcocks, and Sergeant for the
Appellants; and by Bradford, Ingersol, and Wilson for the
Respondent . The Court held the matter for sometime under
advisement, in hopes that a compromise would have taken place
between the parties; but on the 27th of September THE CHIEF
JUSTICE, delivered the following judgment.
M'KEAN, CHIEF JUSTICE.
I will state the case as it appears before the Court from the
proceedings, and the evidence, which are not controverted on either
side; and shall then taken notice of those points which have been
disputed.
The Appellants on the 28th day of August 1779, were owners of a
Brigantine, called the Hibernia, then riding at anchor in the port
of Philadelphia, and appointed the Respondent master and commander,
on a voyage from thence to Oratavia in the island of Teneriffe,
having a commission as a Letter of Mart and Reprisal. The owners,
in the sailing orders then delivered to the Respondent, (among
other things) 'advised him to keep company with the armed vessels
bound to the Eastward as far as he should think it prudent; and
that should they agree to cruize two or three weeks on the coast,
he had their approbation in joining with them.' The Respondent
sailed on his intended voyage, and in the river Delaware joined
Page 1 U.S.
180, 181
the Brigantine Achilles, whereof George Thompson was master, and
the Patty, whereof John Prole was master, each having a commission
of Letter of Mart; and about the 1st of September following they
proceeded to sea in company, standing to the Eastward.
On the 6th of September in the forenoon a firing of cannon was
heard by people on board the Achilles and Patty, and in the
afternoon the Achilles and Patty had altered their course, and,
being swifter sailors than the Hibernia, left her at some distance;
they then waited for her, and when she came up, she inquired the
reason of their altering their course, and was informed, that they
had seen two sail and given them chase. At this time the two
vessels were not in fight, the Achilles and Patty having waited for
the Hibernia until they were lost: They all three then continued
the same course until the morning, when at day light two vessels
were descried, lying close together, by each of the masters of the
three Brigantines, who forthwith made towards them; and the
Achilles and Patty, after firing a few guns, took posession of a
Brigantine, called the Betsey, which had been a British vessel,
bound from Montserrat for New York, ( which places were then
possessed by the Enemy) and was captured the day before by the Argo
sloop of war, belonging to the United States, Silas Talbot,
Esquire, Commander. At this juncture the Hibernia was a few miles
astern of the other Brigantines, and when she came up, the
Respondent asked, 'what vessel they had brought too?' and was
answered, 'a Brig from Montserrat bound for New York; a good
prize.' In consequence of some conversation with the Captains of
the two other vessels, the Respondent sailed in pursuit of the
Argo, then in sight, and did not rejoin them, until near sun set,
when a boat came along side from the Patty, and asked for men to
assist in navigating the Betsey into some port: The Respondent
immediately put two men into the boat, and signed Orders for
William M'Neil, who had been appointed Prize-master, which
contained these words, 'to get her if possible into Delaware, Egg
harbour, or Chesepeak, for fear of the Sloop Argo falling in with
you, if you go to New England;' and 'beg of M'Neil to stand to the
Southward this night and strive hard for Philadelphia.' These
orders are dated 'the 7th September 1779, at sea on board the
Brigantine Patty,' and were signed first by John Prole and George
Thompson. So far the facts are agreed.
Mr. William Davis, who was a passenger on board the Patty,
swears, 'that he verily believes, the firing of cannon on the 6th
about ten o'clock in the forenoon, was heard on board the Hibernia,
and that the people on board each of the three brigs saw two
vessels engaged in fight, for that he heard and saw them
distinctly; that the three lay becalmed within hale of each other,
that the Argo and Betsey were then about three leagues distant from
the three Brigs, and that the firing continued more than an hour.'
He further is positive, that the Respondent and Prole and Thompson
had a consultation in his presence, about the brig Betsey, whether
she was prize
Page 1 U.S.
180, 182
or not; and that they concluded to secure her as a prize, as
they disbelieved what had been said by West and Church about her
being prize to the Argo, or if she was, yet, as they had been in
sight at the time of the capture, they were intitled to a share.
These facts are also confirmed by the deposition of John
Groves.
On behalf of the Respondent, the depositions of John Brice,
first Mate of the Hibernia, John Magill, George Stout, George
Eldridge and Aaron Ashbridge, mariners on board, and of Doctor
Wilson Waters, Surgeon of the Hibernia, prove, that they did not
see the Argo and Betsey, nor hear any firing of cannon, on the 6th
of September, and that neither Captains Prole nor Thompson were on
board the Hibernia on the 7th, nor was the Respondent on board of
either of their vessels. In which last particular Davis and Groves
concur. These witnesses also differ with Davis and Groves, about
the hour that the Hibernia sailed in pursuit of the Argo, the
duration of the chase, and the time of her return and rejoining the
other Brigs.
It has also been given in evidence, that a suit had been
instituted in the Admiralty by Captain Silas Talbot quitam &c.
against the owners of the three Brigantines, for the spoliation of
the Betsey and her cargo, who, upon an Appeal to this Court were
decreed to pay L.11,141. 5. 4. damages to the Libellant, besides
the costs, of which sum the present Appellants, as owners of the
Hibernia, paid L.3,795. 3. 6. and towards costs on the 22nd January
1785.
*
Upon this state of the case, two Questions arise: The first of
fact; the 2nd of Law.
1. With respect to the fact, there are two points, 1st.
Whether the Respondent did willingly join the two other Captains
Prole and Thompson, in the tortious capture of the Betsey from the
Argo, knowing her to have been a prize to the Argo, and that the
Argo was a friend? This would undoubtedly have been a lata culpa,
an evident trespass, to call it by no harsher name.
[182-Continued.]
If he did not, then 2ndly, Whether he was guilty of such gross
negligence (crassa negligentia) as by law will make him responsible
to the Appellants, considering the relation between them as owners
and master of a vessel?
As to the 1st point, the evidence is not so satisfactory as
might be wished in a case of such consequence to the parties. Had
there been evidence given respecting the credit of the several
witnesses, the matter would have been clearer. If Davis and Groves
are to be credited, in addition to the other evidence, there is a
very strong presumption indeed, that the Respondent is guilty of a
great wrong, of a clear trespass; for if he saw the fight on the
6th, as he next day found that the Betsey, which had been captured,
was an enemy, he must have concluded, that the Argo was a friend.
And if all that the other witnesses swear in behalf of the
Respondent, is true, yet I do not think, that the evidence of Davis
and Groves is thereby invalidated. With respect to hours or times,
in which particular occurences or transactions happened, witnesses
of the greatest integrity
Page 1 U.S.
180, 183
may and often do differ: This has happened in the cause before
us. But as to other matters, the witnesses on board the Hibernia
only swear, 'that they did not see nor hear, what the others say,
they did.' The rule in such a case is, 'that one affirmative
witness countervails the proof of many negative, because both may
swear true,' and such interpretation should be put on the whole
testimony, as to reconcile it; for, one may see and hear what
another does not. Gilb. Law of Evidence 157. However, it does not
appear necessary to determine this first point, as the second
question admits of little difficulty, viz. Whether the Respondent
has been guilty of such gross negligence as should make him
responsible?
The Respondent was near to the Betsey, as well as the two other
Letters of Marque; he might have gone on board her, and made every
necessary and proper inquiry; he sent two of his crew on board her,
to get her if possible into Delaware &c. he signed the order to
M'Neil, the Prize master, which must have shewn, to perfect
conviction, that the Betsey had been captured by the Argo, and that
she was a friend. But it is said, that he confided in Prole, whom
they had made Commodore, and in Thompson; that they deceived him;
and that he signed the orders to the Prize master without reading
them; and, in short, that he implicitly obeyed, and did whatever he
was told to do. The Respondent should have reflected, that the
seizing a valuable vessel and cargo was a serious piece of
business, if belonging to a friend; he should therefore have
weighed the consequences of his credulity in others; he could have
inquired for himself, and had the same evidence with Prole and
Thompson; he should have considered, that his owners placed their
confidence in him, and in no other; he should have acted for
himself, and taken care that he did no injury to any one. But he
does not appear, by the defence made for him, to have exercised his
own judgment at all. Was this using proper care and diligence, or
was it inexcusable conduct, and gross negligence?
Let us now consider the law upon this evidence; for, ex facto
oritur lex. It is agreed, that every one of the parties to a
trespass, who participates in it, is a prespasser, and an action
will lie against him as a principal; for, there can be no accessary
to a trespass: Bro. trespass, pl. 113. I Lev. 124. that a trespass
was committed in taking and carrying away the Betsey from the
Commander of the Argo; that the Respondent was present, aiding and
assisting in the taking and carrying her away: and that Captain
Silas Talbot could have maintained his suit against the Respondent,
as well as against his owners, for the wrong and injury they have
done to him. But, it is contended, that though he might be
responsible to Captain Talbot, he is not so to his owners, for that
his relation with them was by contract, and the contract between a
servant and his master, or between a Captain of a ship and his
Owners, points out the measure of the Servant's or Captain's
responsibility; that he ought not to be accountable in damages for
an error in judgment, but only for the fault of the heart, and that
he acted according to the
Page 1 U.S.
180, 184
best of his judgment; and his error in this business arose from
the misinformation and deception of Prole and Thompson. In support
of this doctrine were cited I Blackst. Com. 422. 389. 3 Bl. Com.
163. 3 Bac. Abr. 544. 564. 4 Co. 83. 84. 10 Mod. 109 4 Burr. 2060.
11 Mod. 135. In reply to this, it has been agreed, that the master
or commander of a Privateer or Letter of Marque may lawfully stop
the ship of a friend, examine her papers, the people on board, the
cargo &c. in order to discover, whether she belongs to a
Friend, or an Enemy; and if upon the whole it should be doubtful,
to bring her into port, for further inspection and trial, without
breaking bulk, or imbezzlement of the lading. But if the captor
imbezzled the cargo, disposed of or used any part of it, sent away
the captured mariners, or did any other acts, which shew he could
have no reasonable doubt, in such case he is liable for damages and
costs. Lee on Captures 202. 240. Beawes L. M. 207. I Rolls Abr.
530. It is insisted upon, that a master of a ship is one, who for
his knowledge in navigation, fidelity and discretion, hath the
government of the ship committed to his care and management; that
he must give an account for the whole charge, and, upon failure,
render satisfaction: And, therefore, if misfortunes happen, if they
are either through the negligence, wilfulness or ignorance of
himself, or mariners, he must be responsible; and his owners may
sue him for reparation of damages, jointly or separately, both
according to the common law, and marine law. See I Vol. Laws of
Admiralty 186. Beawes L. M. 49. Bath. Nisi Prius 24. 3 Keeble 444.
3 Bac. Abr. 564 . 3 Black. 163. A great loss then has been
sustained by the injury done in the seizure of the Betsey; it will
be heavy, and must finally fall upon the owners or master. If the
bringing the Betsey too, for the purpose of enquiring whether she
belonged to a friend or an enemy, was lawful, the subsequent
conduct was unlawful, and the seizors became thereby trespassers ab
initio. This was a lata culpa in Prole and Thompson at least, the
Respondent was present aiding and assisting in carrying her away
from the Argo. If one does a trespass, and others do nothing but
come in aid, yet all are principal trespassers. Bro. trespass. pl.
232. 20. Vin. Abr. 460. title trespass. pl. 3. and fo. 466. Letter
U. If A comes in aid of B, who beats me, yet he is a trespasser as
well as B. 22 Aff. 43. If the conduct of the Respondent was not
wilful and with full knowledge, yet it appears to us to have been a
crassa negligentia, and that any reasonable man, upon inquiry, and
the least reflection, upon reading the orders given to the Prize
master M'Neil, (and he ought to have read them) or upon the
circumstances attending the whole transaction, must have been
satisfied, that the Betsy was a prize to the Argo. It is a wrong
position, that a master of a ship is not answerable for an error in
judgment, but only for the fault of the heart, in civil matters. In
criminal cases, as well in others as in a master of a ship, it is
true. One non compus mentis is answerable civilly for
Page 1 U.S.
180, 185
a wrong done to another. Reasonable care, attention, prudence,
and fidelity, are expected from the master of a ship, and if any
misfortune or mischief ensues from the want of them, either in
himself or his mariners, he is responsible in a civil action. And
it must appear very strange to any understanding, that the owners
of a vessel should be answerable in damages for the misconduct of
the master, merely because they appointed him master, and that the
master, the actual malfeazor, should not be accountable over to
them; that the innocent should suffer, and the guilty person go
scot-free. We know of no such law.
Upon the whole, THE COURT are of opinion, that the sentence of
the Court of Admiralty be reversed;* and this Court do decree and
adjudge, that the respondent do pay to the Appellants the Sum of
L.3,795. 3. 6. and the interest thereof from the 22nd day of
January 1785, together with the costs by them paid in the former
cause by Silas Talbot qui tam, against them and others, and also
the costs of this suit in the Inferior Court, and that each party
shall pay their own costs in this Court, the same to be taxed by
the Register, or this Court.
Rush, Justice.
As my opinion differs from that of the Court just delivered by
the Chief Justice, I will give the reasons of my dissent somewhat
at large.
A libel has been filed in the Court of Admiralty for the State
of Pennsylvania, on behalf of John Purviance, Joseph Dean, and
Benjamin Harbeson, against John Angus, setting forth and charging,
that the said John Angus was duly appointed Master and Commander of
the brig Hibernia, the property of the Libellants, bound on a
voyage from Philadelphia to the port of Oratavo in the island of
Teneriff; that on his voyage aforesaid, the said Angus, without any
probable cause of capture, and with a view to his own private
interest and emolument, did combine with certain malefactors, and
take the brig Betsey out of the possession of Silas Talbot, the
said brig being at that time a prize to the said Talbot, and that
Angus knew she was prize to him. The Libel further charges, that
Talbot hath recovered L4000 against the Libellants for the trespass
and injury aforesaid; and concludes with praying, that, as the
Libellants have been compelled to pay that sum of money, through
the misconduct of Angus, their Captain, they may be enabled to
recover from him a full equivalent. [185-Continued.]
To this libel an answer hath been filed on the part of Angus, in
which he explicitly denies his taking the Betsey on the high seas
without authority from his owners, and without probable cause. He
also utterly denies, that he knew the brig Betsey had been taken by
Talbot, and that he had any intention to defraud him, or his
(Angus's) owners.
A variety of depositions and exhibits have been produced in the
cause, and the Judge of the Admiralty hath pronounced a decree in
favour of Angus, the Respondent.
From this sentence an appeal hath been brought by the Libellants
to this Court, the highest in the State, having the ultimate and
superintending power to correct the errors of all inferior
tribunals .
It is right and proper before we examine the evidence,
accurately to state the question in controversy.
We are not now to decide, generally, whether Captains of vessels
are not responsible to their owners for neglect of duty, or breach
of trust; it being admitted on all hands, that the matter may sue
his servant for any breach of trust or confidence. If a shepherd,
by his negligence, suffer my sheep to be drowned; or should my
cattle, through the negligence of my servant, commit a trespass
upon my neighbour; the shepherd and servant are both liable in
these cases. And, in the latter case, I am responsible over to my
neighbor for the injury he receives through the neglect of my
servant. Doctor & Student 37. Noy. 109. 5 Co. 13, 14.
Nor are we now to enquire, whether Angus be responsible to Silas
Talbot for a trespass. I admit that he is clearly so; and that no
defence he could make, founded on ignorance, accident, or mistake,
could avail him on such suit by Talbot. If Angus joined in the
trespass, it is immaterial to Talbot what were his views, or
whether he did it intentionally, or not. If I hurt a person through
negligence, it is no justification in an action of assault and
battery. Buller 16. And there is a case in one of the books, where
a gun went off by accident, and wounded a person, and it was held
that trespass lies. It is to no purpose, therefore, and wide of the
present question, to cite authorities to prove that in trespass all
are answerable. Whether Angus showed more or less zeal; whether he
did all he could, or not; are useless enquiries at this time. In
trespass all are liable; and this rule would apply on a suit by
Talbot against Angus, even though the trespass might appear, on the
part of Angus, to have been incautiously, or unintentionally,
committed. [185-Continued.]
The question before the Court is a special one, resting on its
own peculiar circumstances, and not involving in it the examination
or adjustment of any general principles of law. But before I
proceed to state what I take to be the question, I will make a few
previous observations, on the doctrine of responsibility, so far as
the same is applicable, or necessary, at present.
The owners, as well as the captains of vessels, are, by the
civil law, liable for trespasses committed on the sea. The owners
are liable on the principle, that the captain is their servant,
bound to obey their orders, and to pursue their instructions: a
confidence or trust is reposed in him, that he will conduct himself
agreeably to the principles of integrity and good faith; and that
he will be guilty of no outrage upon others, or of any criminal
neglect whatever. By rendering the owners responsible for the
captains, the law hath laid them under the strongest obligations to
employ none but men of skill, capacity and integrity, to navigate
their vessels. Perhaps, too, the principle in part received its
establishment, from an apprehension, that the commander of the
vessel might not be of sufficient ability to compensate for the
injury committed by him. In all cases of spoliation, both captain
and owners are equally liable to the party wronged.
But what is the nature of the contract between the owners and
the captain? It is either general, or special. It is either created
by the law, or by the parties themselves. A commander of a vessel,
on going to sea without any instructions, is bound to govern
himself by law: and, in such case, if his owners are injured
through his misconduct, he is certainly responsible again to them.
This duty, however, which the law imposes upon the commander of a
vessel, may be altered by his owners. They may, for example, order
him to take and seize the vessel of a friend; and, in case of his
compliance, both he and his owners will be responsible to that
friend: but the captain, in this instance, will not be liable to
his employers, because he acted according to instructions. The
rules of responsibility, therefore, are not reciprocal. The owners
may be liable to a person injured, and it will not thence follow,
that the captain is answerable again to his owners. These
observations are made to refute a very improper inference, that
because a captain has injured a third person, for which the owners
are liable, that, therefore, the captain is again responsible to
the owners. [185-Continued.]
The question then before the Court is this: Is Angus, (who
actually committed a trespass on the property of Silas Talbot, in
conjunction with captains Prole and Thompson, and whose owners, the
present libellants, have since been compelled to make compensation
to Talbot for the trespass of Angus,) responsible to his owners,
for the monies paid by them on account of the said trespass, under
all the circumstances of the case?
This I take to be a fair state of the question; and the answer
must depend, first upon the evidence, and secondly, upon the
law.
I have stated in the question, that Angus committed a trespass.
This appears evident from his signing the orders, and from his
putting two sailors on board the Betsey, to assist in navigating
her into port:
Unless, therefore, it can be shown, that Angus was imposed upon
by his comrades, Prole and Thompson, to act in this manner; and
that he was authorised to place a reasonable confidence in them,
the decree of this Court ought to be against him. In other words,
unless he can show some authority, either express, or implied, for
what he did, he ought to be considered in the same criminal point
of view with the two other captains.
In the beginning of September, 1779, the Hibernia, commanded by
Angus, left the Capes of Delaware, in company with Captain
Thompson, who commanded the Achilles, and with Captain Prole, who
commanded the Patty. They were all armed, and had Letters of
Marque. Upon the 6th and 7th of the same month, the transaction
happened which gave rise to the present dispute. William Davis, a
passenger on board the Patty, says, that on the 7th, about ten
o'clock, A.M. he heard a firing, and saw two vessels engaged in
battle, and that at that time, the three brigs, the Patty,
Achilles, and Hibernia, were within hail of each other. This
firing, if ever heard on board the Patty, or the battle seen, must
have been on the sixth, and not on the seventh. He adds, that he
verily believes that the two other brigs heard the firing also.
[185-Continued.]
In opposition to this evidence, let us contrast the testimony of
James Leach, the captain, and John Russel, the mate, on board the
Betsey. They both swore, that, at the time the Betsey was captured,
there was no other vessel in fight but the Argo; and they add, that
they verily believe, no person did see any other vessel. If they
were in sight of Davis, Davis must also have been in sight of them;
and the firm belief of Leach and Russel, that no vessel was in
sight, is at least equal in point of proof, to the firm belief of
Davis, that the Hibernia and Achilles saw the engagement. It is
remarkable too, that Davis says, that Angus had his boat hoisted
out, in which he is contradicted by all the other witnesses, and
appears to be under a great mistake.
But I shall wave any further observations on this point; for,
though it should be admitted that Davis, and those on board the
Patty, heard the firing and saw the chase, it cannot thence be
inferred, that those on board the Hibernia did, especially as they
swore that they did not. Inattention, noise, and a variety of other
causes, might prevent the people on board one vessel, from seeing
or hearing what those on board another vessel, did see and
hear.
It appears to me, therefore, highly probable, from the evidence
before the Court, that Angus did not on the 6th, see the taking of
the Betsey. His conduct on the 7th, when he came up to the other
captains, strongly confirms this idea. For no less than six
witnesses out of the seven, who were present when Angus came up
(that is, every witness except Davis) expressly mentions, that
Angus enquired what they had got; and upon being told she was a
good prize, he replied, if she is a good prize, so must the sloop
be: and that he further asked, why one of their fast- sailing
vessels did not chase her; upon which they ordered him to pursue
her, which he immediately did.
Now, it is in full proof, from the evidence of Captain Talbot,
that the two other brigs had been up with the Betsey about an hour
before Angus came up, and that their boats had frequently passed to
and from the Betsey. They, therefore, had full information; but
Angus had not the least knowledge, except what he received from
their declaration, that she was a good prize. If then she had been
a good prize, of which he had not, at that time, the least reason
to doubt, well might he reply, that the other vessel, meaning the
Argo, was also a good prize. This observation, made at this period
of the business, unanswerably shows, that he could not have seen
the Betsey and Argo engaged; for, it is not conceivable that he
could be so grossly ignorant and stupid, as to see two vessels
engaged in battle, and, at the same time, suppose them to be both
enemies. [185-Continued.]
With respect to the idea of the three captains having consulted
what to do with the prize, it scarcely merits consideration. Grove,
says, that he does not know on board which vessel the consultation
took place;
in which he is contradicted by Davis, who says it was not on
board any particular vessel, but that each captain continued on
board his own. The truth, however, is, that there never was any
consultation, and, in this, all the other witnesses agree.
The orders from the three captains to the prize master, and
which are signed by Angus, contain a direction to him to get, if
possible, into Delaware, Egg-Harbour, or Chesapeak; 'for fear of
the sloop Argo's falling in with you, if you go to New-England.'
From these expressions, it has been contended, that Angus was privy
to the whole transaction; but I do not see the thing in that point
of view. It is possible that he signed the orders without
considering attentively the meaning of the words, believing, at the
same time, that his comrades, who had made the necessary enquiries
on board the Betsey, had their reasons for inserting them. It is
certain, that he thought the Argo an enemy, and as such pursued
her. He might, therefore, very naturally have supposed the other
captains had reason to believe the Argo was bound to New-England;
and that on this account they had inserted those words in the
orders.
What, then, is the nature and history of the present
transaction? Three vessels, commissioned as Letters of Marque and
Reprisal, being about to sail at the same time from the port of
Philadelphia, the owners of the Hibernia, give their captain orders
to cruise with the other two. He does so; and, in the course of
their united operations, he is deceived and misled by them in such
manner, as to concur with them in committing a trespass. Had Angus
been directed, generally, to cruise, the case might have been
different; for, then every degree of confidence reposed in his
associates, must have been at his own risque. But Angus,
[185-Continued.]
being expressly authorized to cruise with the two other vessels
then sailing to the east, any act, or event, which was likely to
happen on a joint cruise by the three vessels, or which might have
been rationally expected in the usual course of things, was as much
authorised, as the cruising itself was . Every thing usually done
by persons jointly cruising, is implied in the authority to Angus
to cruise with the others. The owners themselves; have laid the
foundation of the trust, or confidence, that he reposed in Prole
and Thompson, and should therefore alone suffer. The conduct of
Angus seems to be clearly warranted by the rules and maxims that
invariably govern the commanders of vessels, when they act in
conjunction with others on a cruising voyage. I perceive neither
crassa negligentia, nor lata culpa in his behaviour; and I take the
law to be, as stated in 4 Burr. 2060, that he is not answerable
unless in those two cases. It is preposterous to say, that he ought
not to have credited Prole and Thompson, when he was ordered to
join with them on a cruise. Hard is the doctrine, that a servant,
who apparently acts in the best manner for the interests of his
master, should be liable for unavoidable failures, especially when
they originate, not in himself, but in others: It is sufficient to
deter all men from accepting a trust.
This authority to cruise with Prole and Thompson, certainly
means something: but, if it will not justify Angus's conduct on
this occasion, it is totally insignificant and void; and an
authority to cruise with others, is an authority to do nothing;
that is, no authority at all.
However disposed to concur with my Brethren in this cause, I
have not been able to do it. Unanimity in Courts of Justice, though
a very desireable object, ought never to be attained at the expense
of sacrificing the judgment.
Upon the whole, as it appears to me, that Angus did not combine
with the other Captains to take the Betsey out of the possession of
the Argo; and that he acted such a part, as he thought would
promote the interests of his owners; my opinion is, that the decree
of the lower Court should be affirmed: But a majority of this Court
entertaining different sentiments, it must nevertheless be
reversed. [185-Continued.]
The Counsel for the Respondent afterwards moved the Court for a
re- hearing upon a suggestion of new evidence &c. and upon that
occasion,
Judge SHIPPEN made the following observations:
SHIPPEN, JUSTICE:
When this Court delivered their decree that the Respondent
should pay to the Appellants the Sum of L.3,795. 3. 6. they
estimated the damages by what they conceived to be the value of the
Vessel and Cargo, having then, I believe, no doubt but that the
loss sustained was the proper measure of damages. The conduct of
the Respondent, though certainly unjustifiable, appeared from the
evidence to be attended with such favorable circumstances, that if
the idea had been entertained that the damages were discretionary,
and could have been legally diminished, I, as one of the Court,
should certainly have given my voice for a much less sum. Whether
the Court had, or had not, such a discretionary power, was not made
a question on the hearing, but has since occurred to me; and having
met with a case which goes a great way towards establishing the
principle, I should be willing to have the case re-heard as to this
point. The case I allude to, is that of Russel v. Palmer in 2 Wils.
325. which was a special action on the case against an Attorney for
negligence, in not charging the Defendant in execution within two
terms after the judgment, whereby the Plaintiff lost his debt, the
Defendant having obtained a Supersedeas, agreeably to a rule of the
Court of Kings Bench, and had been discharged out of custody. On
the trial of the cause before Lord Cambden, a verdict was given for
the plaintiff for L.3000. the whole debt, by the Chief Justice's
direction. But, afterwards, on a motion for a new trial, the Chief
Justice himself and the rest of the Court were of opinion, that he
had misdirected the Jury in telling them, that they ought to find a
verdict for the
Page 1 U.S.
180, 186
whole debt, whereas the action, sounding merely in damages, the
Jury ought to have been left at liberty to find what damages they
thought fit. Accordingly a new trial was ordered, and on the second
trial the Jury were told, that they might find what damages they
pleased, and, on some favorable circumstances appearing for the
Defendant, they found only L.500. in damages.
The similarity of this case with that before the Court, inclines
me strongly to admit a re hearing of the cause as to this point,
whether, if the Court should be of opinion that the Respondent is
answerable on the point of gross negligence, they are bound to
estimate the damages by the real loss, or whether they may not
mitigate them, according to the circumstances and degree of
negligence in the Respondent.
THE COURT, on consideration, directed a re-hearing as to this
point only; and, after argument, reducing the damages, they gave
the following judgment:
The court do award, that the Respondent do pay to the Appellants
the sum of L.948. 15. 10. 1-2. and the interest thereof from the
22nd day of January 1785, together with the fourth part of the
costs by them paid in the former cause by Silas Talbot qui tam
against them and others; and also the costs of this suit in the
Inferior Court; and that each party pay their own costs in this
court; the whole of the aforesaid interest and costs to be taxed by
the Register, or this Court.
Footnotes
[
Footnote *] See Ant. 95.
[
Footnote *] See the evidence, and
the sentence of the Admiralty, reported by the Honorable Judge of
that Court, in the volume referred to ant. p. 95.
Comments
Be the first to comment
Leave a Comment