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 cafe 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 refufte 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.
The question then before the Court is this: Is Angus, (who actually committed a trespass on the property of Silas Talbor, 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 shewn, 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 shew 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 Patly. They were all armed, and had Letters
