A libel against the commander of a squadron calling on him to
proceed to adjudication or to make restitution in value of a vessel
and cargo detained for search by the captain of a frigate belonging
to the squadron and lost while in his possession. Libel
dismissed.
The commander of a squadron is liable to individuals for the
trespasses of those under his command in case of positive or
permissive orders or of actual presence and cooperation. But
quaere how far is he responsible in other cases?
Where a capture has actually taken place, with the assent,
express or implied, of the commander of a squadron, the prize
master may be considered as a bailee to the use of the whole
squadron, who are to share in the prize money, and thus the
commander may be made responsible; but not so as to mere
trespasses, unattended with a conversion to the use of the
squadron.
The commander of a single ship is responsible for the acts of
those under his command, as are likewise the owners of privateers
for the conduct of the commanders appointed by them.
To detain for examination is a right which a belligerent may
exercise over every vessel except a national vessel which he meets
with on the ocean.
The principal right necessarily carries with it all the means
essential to its exercise; among these may sometimes be included
the assumption of the disguise of a friend or an enemy, which is a
lawful stratagem of war. If, in consequence of the use of this
stratagem, the crew of the vessel detained abandon their duty
before they are actually made prisoners of war and the vessel is
thereby lost, the captors are not responsible.
Whenever an officer seizes a vessel as prize, he is bound to
commit her to the care of a competent prize master and crew, not
because the original crew, when left on board (in the case of a
seizure of the vessel of a citizen, or neutral), are released from
their duty without the assent of the master, but from the want of a
right to subject the captured crew to the authority of the captor's
officer. But this rule does not extend to the case of a mere
detention for examination, which the commander of the cruising
vessel may enforce by orders from his own quarter deck, and may
therefore send an officer on board the vessel detained in order
more conveniently to enforce it without taking the vessel out of
the possession of her own officers and crew.
The modern usages of war authorize the bringing one of the
principal officers of the vessel detained on board the belligerent
vessel, with the papers, for examination.
Page 15 U. S. 346
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
16 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 overhauled. The
President stood on her course, being out of sight at the
time she was overhauled and when she was subsequently dismasted,
and so continuing until the signal guns were fired from the
schooner. The
Page 15 U. S. 347
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
recognized as an old acquaintance, but said he was ordered not to
make himself known, and therefore requested the supercargo not to
disclose it. Upon endeavoring 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, endeavored
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 flaw struck
Page 15 U. S. 348
the vessel and both her masts went over. Lieutenant Nicholson,
the mate, and supercargo, endeavored 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 practiced 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 $43,250, 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.
Page 15 U. S. 355
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This case presents two questions,
1. Are the appellees entitled to recover?
Page 15 U. S. 356
2. Does their right of recovery extend to the commander of the
squadron?
In whatever view the case be considered, it is one of extreme
hardship; both the claim and the defense are founded in the most
rigid principles of the
strictum jus, and it is impossible
not to regret if the libellant has no means of indemnity or if that
indemnity should be exacted of men whose characters and conduct
were so far above all imputation of malice or oppression. Nor can
this Court altogether close its feelings against the claims to
protection of that navy which has so nobly protected the reputation
of the country. Yet we mistake the character of the men who
constitute it, if they would not be among the first to declare the
government unworthy of their skill and valor, in which the rights
of the meanest individual was not as much an object of earnest
solicitude as the rights of those whom their country delights most
to honor. Whether the commander of a squadron be liable to
individuals for the trespasses of those under his command is a
question on which it would be equally incorrect to lay down a
general proposition either negatively or affirmatively. In case of
positive or permissive orders or in case of actual presence and
cooperation, there could not be a doubt of his liability. But on
the other hand, when we consider the partial independence of each
commander of a vessel, and that the association is not a subject of
contract, but founded on the orders of their government, which
leave them no election, it would be dangerous indeed, and dampening
to the ardor of enterprise, to trammel a commander
Page 15 U. S. 357
with fears of liability where it is not possible, from the
nature of the service and the delicate rules of etiquette, for him
always to direct or control the actions of those under his command.
We feel no inclination to extend the principle of constructive
trespass, and will leave each case to be decided on its own merits
as it shall arise. Where a capture has actually taken place with
the assent of the commodore, express or implied, the question of
liability assumes a different aspect, and the prize master may be
considered as bailee to the use of the whole squadron who are to
share in the prize money. To this case there is much reason for
applying the principle, that
qui sentit commodum sentire debet
et onus, but not so as to mere trespasses unattended with a
conversion to the use of the squadron.
The case of the commander of a single ship varies materially
from that of the commander of a squadron, and the rigid rules of
liability for the acts of those under our command may with more
propriety be applied to him. The liability of the owners of a
privateer or the acts of their commanders has never been disputed,
and it is because they are left at large in the selection of a
commander and are not permitted to disavow his actions as being
unauthorized by them. So in the case of a commander of a ship, the
absolute subordination of every officer to his command attaches to
him the imputation of the marine trespasses of his subalterns on
the property of individuals, when acting within the scope of his
commands. Orders even giving a discretion to a subordinate in such
cases is no more
Page 15 U. S. 358
than adopting his actions as the actions of the commander, and
placing him in a command which requires skill, integrity, or
prudence makes the commander the pledge to the individual for his
competence to discharge the duties of the undertaking.
With these views of the subject we should have found no
difficulty in deciding on the liability of Captain Smith, of the
Congress, had be been a party to this libel and the facts
of the case had made out a marine trespass in himself or in
Lieutenant Nicholson, or a want of competence or due care in the
latter to discharge the command assigned him. But we are of opinion
that no one act is proven in the case which did not comport with
the fair, honorable, and reasonable exercise of the rights of war.
To detain for examination is a right which a belligerent may
exercise over every vessel not a national vessel that he meets with
on the ocean. And whatever may be the injury that casually results
to an individual from the act of another while pursuing the
reasonable exercise of an established right, it is his misfortune.
The law pronounces it
damnum absque injuria, and the
individual from whose act it proceeds is liable neither at law nor
in the forum of conscience. And the principal right necessarily
carries with it also all the means essential to its exercise. Thus,
in the present case, a vessel must be pursued in order to be
detained for examination. But if in the pursuit she had been
dismasted and upset or stranded or run on shore and lost, it would
have been an unfortunate case, but the pursuing vessel would have
stood acquitted. The counsel in argument
Page 15 U. S. 359
have not denied the general doctrine, but have endeavored to
show that the commander of the
Congress had unreasonably
exercised the right of detention.
1st. By the deception in passing himself off for an enemy,
thereby reducing the crew to a State of insubordination.
2d. By taking out both the master and the mate, and thus
removing the possibility of bringing the seamen back to their
duty.
3d. By divesting the master of his command without putting a
competent crew on board to navigate her.
On the first of these grounds, it is only necessary to remark
that to assume the guise of a friend or an enemy is, in legitimate
warfare, an act the most familiar and frequent in its occurrence.
It is so ordinary a
ruse de guerre that it ought rather to
be expected than the display of real colors. And innumerable cases
that have come before this Court prove that in the actual state of
things during the late war, it became as necessary to practice the
deception upon our citizens as upon a neutral or an enemy. We
therefore see nothing reprehensible in this. But on what ground
could the crew assume the right of judging for themselves on this
subject and of abandoning their duty before they were actually made
prisoners? Suppose the frigate had been an enemy, it did not follow
that their vessel must be made prize and they were unquestionably
unpardonable in abandoning their duty? Their doing so was by no
means a necessary consequence
Page 15 U. S. 360
of ordering their officers on board the frigate, nor ought the
captain of the
Congress to have anticipated such a state
of things as their vessel was reduced to by their misconduct. They
were bound to obey the second mate in the absence of their other
officers, and if they had done so, this misfortune would not have
happened. So far from actually divesting him of his command, it
appears that Nicholson's orders were addressed to him, and only
addressed to the men to try his personal influence in bringing them
to order.
To the second and third grounds the attention of this Court has
been drawn with peculiar force. Either of them appeared to be an
irregularity which the reasonable exercise of the right of search
did not strictly justify. But upon a close examination of the
testimony, we are of opinion that neither of those grounds is
supported by the evidence. It is true that both the master and
first mate were taken on board the frigate, and the master and
supercargo say they were both ordered on board. But Nicholson, the
boarding officer, who certainly knew best what orders he gave,
swears that he ordered the master to go on board with "one of his
mates," thus leaving it to his election to choose between them; he
further swears that these were the orders he received from the
captain. And there is a fact in the case, which makes it probable,
that the master of the schooner himself called on the first mate to
attend him, for at that time the second mate was stationed at the
bow, in charge of sinking certain dispatches, in case of capture.
Had the master remonstrated
Page 15 U. S. 361
against taking his first mate along with him, he would have done
his duty, and perhaps saved his vessel. On the third point, it is
unquestionably true that whenever an officer seizes a vessel as
prize, he is bound to commit her to the care of a competent officer
and crew. Not that the original crew, when left on board in case of
seizure of the vessel of a citizen or neutral, are released from
their duty without the assent of the master, for they are bound to
attend the vessel as she may be discharged and pursue her original
destination. But the obligation to man the prize results from the
want of a right to subject the crew of the captured vessel to the
authority of his own officer. If, then, this vessel had been seized
as prize and no one put on board but the prize master, without any
undertaking of the original ship's company to navigate her under
his orders, it is very questionable whether the appellants would
not have been liable for any loss that followed from the
insubordination of the crew. For after capture, as before observed,
the prize master becomes the bailee of the squadron, which is to
share in the partition of the proceeds.
But we are of opinion that this was a mere case of detention for
search; that the vessel was never actually taken out of possession
of her own officers; that the captain of the
Congress had
a right to detain the vessel by orders from his own quarterdeck and
that the officers of the schooner, at their peril, were bound to
obey; that Lieutenant Nicholson was left on board for no other
purpose than to enforce in a more convenient mode the observance on
their
Page 15 U. S. 362
part of the duty which the rights of war authorized the frigate
to exact of her. And all the misfortunes which followed resulted to
the appellees from the fault or folly of their own crew.
One argument insisted on at the bar it is proper for this Court
to notice before we conclude. It was contended that the master of
the
Eleanor ought not to have been removed from his
vessel; that the right of search only authorized the sending of an
officer on board to examine her papers. But we think otherwise. The
modern usages of war authorize the bringing of one of the principal
officers on board the cruising vessel, with his papers, for
examination. To divest her of both her principal officers without
putting on board her for the time a competent officer and crew
would certainly be irregular. But it is for the interest of the
commercial world that the investigation should be made by the
commander himself, and not left to any subordinate officer. In that
case it would be absurd to require of the commander of the
commissioned vessel to quit his command for the purpose of making
the necessary examinations.
We are upon the whole of opinion that the court below erred,
that the decree must be annulled, and the libel dismissed.
