THIS was a suit for a marine trespass, commenced in the district court for the southern district of New-York, by the libellants and appellants, who were the owner, master, supercargo, and crew of the Haytian Schooner Amiable Nancy, against the defendants, who were the owners of the private armed American vessel Scourge.
The libel states, that the Amiable Nancy and her cargo belonged to be libellant, Peter Joseph Mirault, of Port-au-Prince, in the island of Hayti, or St. Domingo; that the vessel, with a cargo of corn, sailed from Port-au-Prince about the 7th of October, 1814, on a voyage to Bermuda, and in the prosecution thereof, about the twenty-fourth day after sailing, in latitude 25 degrees north, was obliged, by stress of weather, to bear away for Antigua, there to refit and again proceed on the said voyage; that whilst proceeding toward Antigua, about the 4th of November, in the same year, in latitude 17 degrees 54 minutes north, and in longitude 62 degrees 42 minutes west, the said Haytian schooner was boarded by an armed boat's crew from the private armed American brig Scourge, commanded by Samuel Eames, and owned by the defendants; that Jeremy C. Dickenson, the first lieutenant of the said brig, with the said armed boat's crew, then and there took possession of the Amiable Nancy, and robbed and plundered the libellants, respectively, of divers articles of wearing apparel, money, and other valuable effects of a great value, being all that the libellants, at the time of the boarding as aforesaid, were possessed of; and also robbed and plundered the said schooner of her papers, notwithstanding that Samuel C. Lathrop, the officer commanding the marines of the aforesaid private armed brig, and who accompanied the said armed boat's crew, had reported to the said Jeremy C. Dickenson that he had examined the said papers; that they were perfectly in order, and that the said schooner was a Haytian schooner as aforesaid; that the said armed boat's crew also robbed and pundered the said schooner of divers articles belonging to her tackle and apparel, to wit, of a log reel and line, lines and cordage, and also, of poultry; and greatly ill-treated the libellants, and, in particular, knocked down and greatly bruised the libellant, Frederick Roux, and put the libellants in bodily fear and danger of their lives; that about twelve o'clock of the same night, the armed boat's crew aforesaid left the Amiable Nancy, and the said schooner was permitted to proceed on her course as aforesaid, and did so proceed, but her papers were not restored, nor any other article of apparel, money, nor any of the valuable effects of which the said schooner and libellants had been robbed and plundered, although the said captain and supercargo did frequently and urgently remonstrate with the boarding officer upon the impropriety of such conduct as aforesaid; and did then and there state, that the said schooner could not proceed without her said papers; but, notwithstanding the remonstrances of the said libellants, nothing whatever which had been taken from the said schooner, and from the libellants, was restored. That the libellant, Galien Amie, was not permitted to go on board of the said private armed brig, although he earnestly requested permission so to do, with the intent to complain to the commander of the said private armed brig, of the conduct of his said armed boat's crew, and of requesting him to cause the papers and articles taken as aforesaid, to be restored to the libellants and the said schooner. That the said schooner continued on her course as aforesaid, and on or about the morning of the 8th of November, in the year aforesaid, arrived at the entrance of the harbour of St. John's, in the island of Antigua, when she was seized and detained by his Britannic majesty's guard-brig Spider, on account of the want of her papers; and both the vessel and cargo were, for the same reason, libelled and proceeded against in the vice admiralty prize court in the said island. That the amiable Nancy was detained in the possession of the said guard-brig Spider until the 24th of November; and in consequence of an agreement previously made between the captors aforesaid and the said supercargo, which he was advised to make, in order to avoid the farther detention, deterioration of the cargo, and total loss of the same, as of the said schooner, the schooner and her cargo were condemned as good and lawful prize, and were immediately delivered up to the libellant, the supercargo aforesaid, on the engagement to pay to the said captors the sum of $1,000, and all law and court charges, to a great amount, to wit, to the amount of about $542 21, which said compromise, law and court charges together, amounted to the sum of $1,542 21, which the libellant, Frederick Roux, was obliged to pay, and did actually pay, in order to procure the liberation of the said vessel and cargo. And in order to pay the same, the said last mentioned libellant was obliged to pay, and did pay the farther sum of $536 44 by selling bills to procure specie to make the said payment; besides which, the said cargo of corn sustained a loss of $1,200, by its detention in port as foresaid, deterioration and fall in price; and the owner of said schooner did sustain farther loss by the breaking up of his voyage, and the said schooner being obliged to leave Antigua in ballast, although a full freight was offered to him. That in consequence of the robbery and plunder of the said schooner, and the ill treatment of the libellants, and the capture and detention, as aforesaid, heavy loss and damage accrued to the libellants, respectively, amounting in the whole to $15,000.
The libel then prays, that the defendants, as the owners of the Scourge, may be decreed to pay to the libellants the damages respectively sustained by them by the illegal conduct of the said boat's crew, with all other charges and expenses thereby incurred, and losses therefrom accruing, and for such other relief as may be suited to the case.
The defendants, by their answer and plea, admit that they were, at the time mentioned in the libel, the owners of the Scourge, which was regularly commissioned as a private armed vessel during the late war; and that whilst cruising on the high seas, she met with the said Haytian schooner; but they do not admit that the plundering, outrages, and other unlawful acts mentioned in the libel, were committed as therein charged; they do, however, admit, that the said schooner was boarded by a crew from the scourge, under the belief that she was an enemy, and that some improper acts were committed by some of the said crew; but they deny their responsibility therefor, especially as the said crew, or some of them, were punished for their improper conduct.
Samuel C. Lathrop, captain of marines on board the Scourge, proved, that whilst the said vessel was on a cruise they fell in with the Amiable Nancy, about the 4th or 5th of November, 1814, and boarded her; that Lieutenant Dickenson and himself, with twelve or thirteen of the crew, went in the boarding boat, under the command of Lieut. Dickenson, and that as soon as the boat came alongside of the schooner, Dickenson and himself went on board of her, and all the men but one followed; that the men immediately commenced plundering the vessel, which Dickenson saw, and took no measures to prevent; that the witness examined her papers, and found her to be a Haytian Schooner, and that they were all regular, and so reported to Lieut. Dickenson. That the boat's crew ought not to have gone on board of the schooner at all; but Dickenson did not order them back, and permitted them to proceed in breaking into the cabin, breaking open the trunks of the captain and supercargo, plundering their contents, and the schooner's crew of their clothes and effects, and throwing them in bundles into the boat along side the schooner; that the captain and supercargo complained to Dickenson of the conduct of his crew, and especially of their destruction of the schooner's papers; and the supercargo also complained of being knocked down; but Dickenson took no notice of their complaints, and suffered the boat's crew to continue their plundering two hours on board of the schooner, though he had examined the schooner's papers, and made his report, as before stated, in ten minutes after going on board.
Commissions were issued to Antigua and Port-au-Prince to take testimony on the part of the libellants. Under the Antigua commission, it was proved, that the Amiable Nancy and her cargo were seized, libelled, and condemned at Antigua, on account of her want of papers. That the supercargo compromised with the captors for $1,000, and court charges $542 21, which he was advised to do, as most for the interest of the owner. That it was necessary to pay this amount in specie, which could only by raised by a sale of the bills for which the cargo was sold, and was done at a loss of $536 44: that other sums were disbursed for the vessel, making in the whole $2127 60. During the detention of the vessel, the price of corn fell a dollar a bushel, and the cargo was injured by the search of the schooner, made by the Spider's crew, which occasioned a loss of $1,200. The expenses of the schooner at Antigua were proved to be $414. The value of the articles plundered from the vesel, captain, supercargo, and crew was proved by one of the witnesses, and by the protest; also, the ill treatment and personal violence complained of.
Under the commission to Port-au-Prince, it was proved that the libellant, Peter Joseph Mirault, was the owner of both the schooner and cargo, and that the schooner was a Haytian vessel, regularly documented as such. The detention and plunder of the schooner, by the boat's crew of the Scourge, is fully and particularly proved by one of the seamen on board of the schooner. The object of the voyage to Bermuda, and the loss sustained in consequence of its being broken up, are also proved.
On the hearing of the cause in the district court, it was referred to the clerk, or his deputy, to associate with him two merchants, and report the damages sustained by the libellants. The duputy clerk accordingly associated with him two respectable merchants, one chosen by each of the parties, who reported the damages as follows:
Money paid for redeeming vessel and cargo, at Antigua, after condemnation, $2,127 60 Loss sustained on sales of the cargo of corn, at Antigua, in consequence of the capture, 1,200 00 Detention, wages of the crew at Antigua, in consequence of seizure by the Spider brig, occasioned by the loss of ship's papers, 414 00 Articles plundered from the schooner Amiable Nancy, 25 00 Money and effects plundered from M. Roux, the supercargo, 470 00 Money and effects plundered from the officers and crew of the Amiable Nancy- From Captain Amie, 100 00 Moriset, mate, 80 00 E. Lenau, 54 00
J.J. Loiseau, 53 00
Michael, 10 00 Savou, 7 00
Loss sustained in consequence of the expenses occasioned by the seizure and condemnation in Antigua, growing out of the Amiable Nancy having been deprived of her papers by the acts of the officers and crew of the Scourge, as proved by the deposition of Samuel Dawson, and F. Lavaud, of Port-au- Prince, 3,500 00
8,040 60 Interest on this sum, from 1st January, 1815, till the 1st July, 1817, at 6 per cent. per annum, 1,206 07
9,246 67 Allowance for M.Roux's expenses to and from Port-au-Prince, Antigua, Boston, &c.; detention in New-York, loss of time, and other incidental expenses, procuring evidence, and attending the trial, 1,500 00
This report was confirmed by the court, and it was further ordered by the court, that the defendant should pay to the libellant, for personal injuries, as follows:
To the supercargo, five hundred dollars, $500
To the captain, one hundred dollars, 100
To the mate, one hundred dollars, 100
To the sailor, fifty dollars, 50
------ $750 ------
And that the defendants should pay to the libellants one thousand dollars, for the commission claimed by the supercargo, Frederick Roux, seven hundred and fifty dollars for counsel fees, the proctor's costs, and the costs of court.
The defendant appealed from the decision of the district court to the circuit court for the southern district of New-York, where it was heard in September term, 1815, and the following decree made:
This appeal having been argued, &c. this court, after mature deliberation thereon, do order, adjudge, and decree, that the sentence of the district court, which has been appealed from, be reversed, and this court proceeding to assess the damages in this cause, make the following allowances, that is to say—
To the Owner of the Schooner.
1. For expenses during her detention at Antigua, in conformity with the estimate of the consignee, $300 00 2. For expenses of the mate and supercargo while there, according to the testimony of the same witness, 70 00 3. For articles plundered from schooner, 25 00 Interest on these sums at 10 per cent. from 1st of January, 1815, to 1st September, 1817, two years and eight months, 103 94 ---------
498 94 To the Master of the Schooner. 1. For articles taken from him, 100 00 The same interest on this sum, 26 66 2. For personal injuries, 100 00 --------- 226 66 To the Supercargo. 1. For articles plundered of him, 470 00 The like interest on this sum, 114 32 2. For personal wrongs, 500 00 --------- 1084 32 3. For his expenses in collecting testimony at Antigua, Port-au-Prince, &c., and attending trial, 750 00 To the Mate. 1. For the property lost by him, 80 00 The like interest on this sum, 21 32 2. For injury to his person, 100 00 --------- 201 32 To Lenau, the Sailor. 1. For property robbed of him, 54 00 The like interest on this sum, 14 40 2. For injury to his person, 50 00 --------- 118 40 --------- $2879 64
It is therefore further ordered and directed, That there be paid by the appellants, to the respondents and libellants, the said some of two thousand eight hundred and seventy nine dollars and sixty four cents, in the manner and proportions following that is to say-to the libellant, Peter Joseph Mirault, owner of the schooner and cargo, the sum of four hundred an ninety eight dollars and ninety four cents; to the libellant, Galien Amie, master of the schooner, the sum of $226 66; to the libellant, Frederic Roax, the supercargo, the sum of $1,834 32; to the libellant, Anthony Morrisset, the mate, the sum of $201 32; to the libellant, Elie Lenau, one of the mariners, the sum of $118 40.
And it is further ordered, adjudged, and decreed, That the appellants pay the further sum of $750 for counsel fees in the district court; and that they also pay the proctor's costs in the said court, and the costs of that court to be taxed.
And it is further ordered and decreed, That each party pay his own costs in this court; from which decree the libellants appealed to this court.
This cause was argued by Mr. Sergeant and Mr. Baldwina for the appellants, and by Mr. D. B. Ogden for the respondents.b
Mr. Justice STORY delivered the opinion of the court.