1782.
his payments, to obtain the order and direction of the Court; and the Admiralty Courts ought not to make an order, without previous measures to guard against fraud and imposition, by providing for latent claims.
But on the second ground, it is said, the decree below ought to be reversed; which is, that the libellants are not part of the privateers crew, nor captors, entitled to the prize stated in their libel.
It is proved, and admitted on all hands, that the libellants were shipt on board the privateer, at Philadelphia; that they were shipt under the articles of agreement, and shipt and received on board, as part of the privateer’s crew; that, as part of the privateer’s crew, they navigated the privateer down to Chester; that there the captain, without any objection to their skill or ability, ordered them on shore, and obliged them to abandon the privateer, and left them; and that afterwards he, and all the residue of the crew, destroyed the original articles of agreement, and executed a fresh set.
Under the circumstances stated and admitted, we are of opinion, that the libellants are entitled to a full proportion of all prizes which were captured during the cruise, for which the libellants were engaged, and from which they were forcibly excluded.
We have already observed, that the right of the crew to captures is not founded on the articles of agreement; but on the privateers commission. When the libellants were shipt at Philadelphia, and received on board by the captain as part of the crew, the right under the commission attached. This right they derived from an authority, paramount to the captain, and therefore the captain could not arbitrarily deprive them of it.
But it is said, the captain, only, did the wrong; and therefore he alone should be responsible for it, and not the residue of the crew.
The libellants do not seek an compensation for a wrong; they are not in pursuit of damages for a tort. When they were shipt and received on board at Philadelphia, they then became part of the crew, and the right to capture and make prizes was a right they held jointly with the ship and officers, and residue of the crew. The articles of agreement directed the distribution, and ascertained the share; and the libel is for shares, according to the articles. The demand, therefore, which the libellants make, does not lessen the shares of the residue of the crew, nor call on them for a compensation: It is a demand, which the residue of the crew acknowledged, and agreed to, when they executed the articles.
