APPEAL from the circuit court for the district of Massachusetts.
This schooner, with her cargo, the property of the claimant, on a voyage from Baltimore to Bordeaux, fell in with the President and Congress frigates on the night of the 16th October, 1813.
Commodore Rodgers was the commander of the President frigate, and the commodore and commander of the squadron composed of those two ships, then in company. Captain Smith, deceased, and charged in the libel as a co-defendant, commanded the Congress.
On the Eleanor being discovered by the two frigates, she was chased by the Congress and overhaled. The President stood on her course, being out of sight at the time she was overhaled and when she was subsequently dismasted, and so continuing until the signal guns were fired from the schooner. The master, supercargo, and the officers and crew of the Eleanor, on seeing the frigates, considered them British cruisers, and when they found she could not escape them, concluded they were captured by the enemy. This produced a very general determination, on the part of the crew, to take no further concern in the navigation of the schooner. When boarded by lieutenant Nicholson of the Congress, the schooner was in the state of confusion to be expected from such a determination. He ordered the master to take one of his mates, and his papers, and go on board the frigate. The captain, after giving some orders to his second mate to adjust the sails of the schooner, which were not complied with, went with his first mate and papers, in the frigate's boat, to the Congress. Lieutenant Nicholson, on being asked by a boy what frigate it was, said it was the Shannon; immediately afterwards he undeceived the supercargo, whom he recognised as an old acquaintance, but said he was ordered not to make himself known, and, therefore, requested the supercargo not to disclose it. Upon endeavouring to restore order, and to provide for the safe navigation of the schooner, he could get no assistance from the crew, (who refused to obey his orders, considering him a British officer,) except from the second mate, and on observing this, he disclosed the name of the frigate, and he, the supercargo, and the mate, assuring the crew they were not prisoners, endeavoured to prevail on them to return to their duty; they persisted in refusing; in consequence of which (the sea being tempestuous, and the weather squally) a fiaw struck the vessel and both her masts went over. Lieutenant Nicholson, the mate, and supercargo, endeavoured to save the vessel, but the crew would not obey either of them. She was afterwards assisted, as far as possible, by the frigates, but finally abandoned and lost.
The libel was filed against commodore Rodgers, and captain Smith, alleging that the loss of said vessel and cargo was owing 'to the deception unlawfully practised on her crew by the officers of the said squadron, and through the want of care, inattention, and gross negligence, of the officer of said frigate Congress, in the navigating said schooner, of which he had taken, and then had command,' and praying for a monition against them to proceed to adjudication, or to show cause why restitution in value should not be decreed.
The district court considered this allegation supported by the proof, and that commodore Rodgers was answerable, as commander of the squadron, and decreed against him for forty-three thousand two hundred and fifty dollars, the value of said vessel and cargo. The circuit court affirmed the decree pro forma, and thereupon the cause was brought by appeal to this court. After the filing of the libel, and before the decree in the district court, the death of Captain Smith, which had intervened, was suggested on the record.
Mr. Key, for the appellant, made three points;
1st. That it was owing to the neglect and misconduct of the captured crew the vessel was lost.
2d. That this neglect and misconduct were in no degree owing to, or palliated by, the military stratagem practised by Captain Smith.
3d. That, at all events, Commodore Rodgers was not responsible in law.
The neglect of the captured crew, in refusing to do duty, is analogous to the case of Virtue v. Bird,a where the plaintiff declared that he was employed by the defendant to carry a load of timber from W. to I., to be laid down where the defendant should appoint, and that he carried it; when the defendant, having appointed no place where it should be laid down, the plaintiff's horses were detained in the cold, by which some of them died, and the rest were spoiled: after a verdict for the plaintiff, judgment was arrested; for it was the plaintiff's own fault that he did not take out his horses, and lead them about; or he might have unloaded the timber in any proper place, and returned. So, also, in Butterfield v. Forrester,b which was an action on the case for obstructing a highway, by means of which the plaintiff, who was riding along the road, was thrown down with his horse, and injured; it appeared that he was riding with great violence and want of ordinary care, without which he might easily have avoided the obstruction. It was, therefore, decided, that he could not recover; for that two things must concur to support the action: an obstruction in the road by the fault of the defendant, and no want of ordinary care, to avoid it, on the part of the plaintiff. Upon the principle of these cases, the appellant is exempted from all liability. Nor is he responsible upon the ground of the liability of a master and principal for the misconduct of a servant and agent. Superiors in these relations of life are answerable only for acts in the ordinary line of the duty of the servant and agent, or in consequence of the special orders of the superior. But this principle, with its limitations, does not apply to the case of a commander of a squadron. He does not elect his officers. They are appointed by the government, and amenable only to a court martial. No officer, military or naval, would undertake so frightful a responsibility; and to impose it upon the commander of a fleet or squadron would be to incapacitate him from the performance of his duty. There is no testimony, positive or presumptive, that Commodore Rodgers gave any orders whatever to practice the stratagem in question. The authority of the Mentorc shows, that the is not liable, constructively, for the conduct of the officers under his command; nor is there any one case to show that he is thus liable. The Der Mohrd is, apparently only, such a case. It only proves that a superior officer may be placed in the same relation with that of a principal, in regard to his agent. In that case, the captors had a right of property in the captured vessel, inasmuch as by the law of England captors have the entire interest in prizes; and any person may be appointed prize-master, and so become the agent of the whole squadron, the commander of which would, consequently, be responsible. Public policy does not require the establishment of the principle contended for on the other side, since the injured party may have recourse to the actual wrong doer, and may seek redress by complaining to the government of his misconduct.
Mr. D. B. Ogden, contra. The case cited from Levinz is not parallel; and that from East is one of gross folly and want of common prudence and caution on the part of the plaintiff. It is inapplicable, because it was not in the power of the libellant in this case to save his property from destruction. But the present question is not to be determined by the narrow principles of the common law; it is a marine trespass, which must be tried by the more liberal rules of the marine law. The right of visitation and search is not, and cannot be denied; but it is not essentially necessary to the due exercise of the right that the master should be taken out of his vessel: it is only necessary to send a boarding officer to make the proper examination and inquiries; but the belligerant cruisers have no right to proceed further, until they have determined to send in the vessel for adjudication. When this determination is made, a competent prize-master and crew should be put on board, instead of leaving the original crew without control or regulation. A belligerant has a right to practice deception, as a stratagem of war; but this right, which may cause a wrong to a neutral or fellow citizen, must be exercised at the peril of the captors. Either the seizure of the Eleanor was as prize, or she was detained for search. If the former, then the captors had no right to require the assistance of the crew of the captured vessel,e who were not bound to assist in navigating her. If the latter, then the captors had no right to take out the master and mate, leaving the crew without any regular chief competent to navigate the vessel. The case of the Der Mohr was, indeed, determined on general principles of law; on the ground that the prize-master was constituted agent of the captors, and the vessel (which was innocent) was used as a vehicle to bring in the cargo, which last alone was liable to suspicion. But here the trespass is joint; and the trespassers would have been joint sharers of the prize: Qui sentit commodum sentire debet et onus. The President was out of sight at the time of the seizure; but she was present at the inception of the tort. They were cruising in conjunction, and under the orders of Commodore Rodgers, who saw the Congress frigate pursue the Eleanor, and did not prohibit the chase. The boarding officer was a mere passive instrument in the hands of his superiors, to whom alone the injured party can look for indemnification.
Mr. Harper, (on the same side.) The responsibility of the owners of privateers and the commanding officers of ships and squadrons, for the misconduct of their delegates, is a settled principle of law. The case of Del Col v. Arnoldf is in point, where this court decreed the owners of a privateer to make restitution in value of a captured vessel lost by the misconduct of the prize-master. The case of the Der Mohr, which has been so often referred to, makes the senior officer responsible for the appointment of a prize-master by his junior officer, though there was no personal misconduct imputable to either. In the case now before the court, the proximate cause of the loss was the refusal of the seamen to work. The ultimate cause was the deception practised by the captors in representing themselves as enemies; and whether the crew were justifiable in refusing obedience, or not, their disobedience was a consequence of the stratagem practised by the captors, and they are responsible. On the first supposition, they are liable; because they ought to have put a prize crew on board. On the second, because the stratagem was practised at their peril, and it depended upon the event of the search whether they would be justified; for this mode of warfare is not to be practised at the expense of individuals pursuing an innocent and lawful commerce. The case of the Mentorg is not, as has been contended, contrary to our position. The claimant there had taken out a monition against the actual captor, which had been dismissed; it was, therefore, res judicata; and, besides, the lapse of time which had intervened, was held to be an equitable limitation. It is true, that Sir William Scott likewise lays hold of the circumstance that admiral Digby was merely commander of the North American station, and far off at the time when the capture was made: but here commodore Rodgers was present, and associated in the act. The case of the Charming Betseyh shows that innocence of intention alone in a commanding officer will not exempt him from the consequences of an illegal act. In substance and effect, this is a case between the government and the owner of the property which has been destroyed, who has become the victim of a rigorous prosecution of the rights of war and of military policy. Respondeat superior! We pursue him; let him, in turn, look for indemnification to his government, to which experience shows that he will net look in vain.
Mr. Jones, for the captors, in reply, argued on the facts that the loss of the vessel was not a consequence, direct or indirect, of the conduct of the seizing officer; and that the right of visitation and search had been properly exercised. It is novel doctrine, that the right of search is to be exercised under the peril of being responsible for a wrong. Reason, morality, and law, all concur in imposing the loss (among innocent parties) upon him on whom the elements and the act of providence throws it. It was entirely a question of military prudence whether the papers should be examined by the boarding officer or by his superior; and there is nothing in the principles of public law to prevent the exercise of the right of visitation and search either way. Neither are the crew of the vessel which is detained for search, exempted from obedience in consequence of the act of boarding. Until the capture is consummated, the former relations of the crew continue; and until then the cruiser is not bound to send on board a competent prize-master and sufficient crew to navigate the captured vessel. The commander of a squadron cannot, on any principle of law or justice, be made responsible, constructively, for the acts of officers on board other ships. The principles and analogies which would make commodore Rodgers a joint trespasser must to those of municipal law. But his was not a civil connection with the officers of the other ship; all that he knew, or permitted, was the chase; and he cannot be made responsible for the subsequent supposed misconduct of his brother officer. Here was a merely military act; no animus lucrandi; no appropriation as prize; and, therefore, no civil constructive responsibility. In the case of the Mentor, Sir William Scott expressly overrules the doctrine of the constructive responsibility of a commander in chief; apart from the other grounds of exception, the former adiudication and the lapse of time which he likewise notices. The Der Mohr was a case of joint capture, as expressly stated by the court and the reporter; and was determined on the just principle of joint participation in the wrong done, in the interest acquired by the capture, and in the appointment of the prize-master.
Mr. Justice JOHNSON delivered the opinion of the court.