OpenJurist

16 US 546 The Amiable Nancy

16 U.S. 546

3 Wheat. 546

4 L.Ed. 456

THE AMIABLE NANCY.

March 11, 1818

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
 
                        ---------
 
                          304 00
 
                        ---------
 
                            4,540 60

Page 554

    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
 
                        ---------
 
                           $10,746 67
 
                        ---------
 
     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
 
   ---------

Page 556

      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

March 11th.

Mr. Justice STORY delivered the opinion of the court.

1

The jurisdiction of the district court to entertain this suit, by virtue of its general admiralty and maritime jurisdiction, and independent of the special provisions of the prize act of the 26th of June 1812, ch. 107. has been so repeatedly decided by this court, that it cannot be permitted again to be judicially brought into doubt.c Upon the facts disclosed in the evidence, this must be pronounced a case of gross and wonton outrage, without any just provocation or excuse. Under such circumstances, the honour of the country, and the duty of the court, equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be proper to go yet farther, and visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages. While the government of the country shall choose to authorize the employment of privateers in its public wars, with the knowledge that such employment cannot be exempt from occasional irregularities and improper conduct, it cannot be the duty of courts of justice to defeat the policy of the government, by burthening the service with a responsibility beyond what justice requires, with a responsibility for unliquidated damages, resting in mere discretion, and intended to punish offenders.

2

As the respondents have not appealed from the decree of the circuit court, that decree, so far as it allows damages against them, is not re-examinable here.—And the only inquiry will be, whether any of the items allowed by the district court were improperly rejected by the circuit court.

3

And first, as to the item of 1,200 dollars, for losses sustained in the sale of the cargo at Antigua. This loss is said to have been occasioned partly by the deterioration of the corn by sea damage, the mixing of the damaged with the sound corn by the improper conduct of the crew of the Spider brig of war, and partly by a fall of the price of corn during the detention of the vessel at Antigua. We are of opinion, that this item was properly rejected. The jury to the corn was in no degree attributable to the improper conduct of the officers and crew of the privateer. The vessel was actually bound to Antigua at the time when she was met by the privateer, under a necessity occasioned by stress of weather, and the fall of the market there is precisely what would have arisen upon the arrival of the vessel under ordinary circumstances. Unless, therefore, the sale of the corn was compelled at Antigua, solely by the misconduct of the privateer, (which, in our opinion, was the case,) the claim for such loss cannot be sustained.

4

Another item is 3,500 dollars, for the loss of the supposed profits of the voyage on which the Amiable Nancy was originally bound. In the opinion of the court, this item also was properly rejected. The probable or possible benefits of a voyage, as yet in fieri, can never afford a safe rule by which to estimate damages in cases of a marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficulties in sustaining its legal correctness, that the court cannot believe it proper to entertain it. In several cases in this court, the claim for profits has been expressly overruled; and in Del Col v. Arnold, (3 Dall 333.) and the Anna Maria, (2 Wheat. Rep. 327.) it was, after strict consideration, held, that the prime cost, or value of the property lost, at the time of the loss, and in the case of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages. This rule may not secure a complete indemnity for all possible injuries; but it has certainty and general applicability to recommend it, and in almost all cases, will give a fair and just recompense.

5

The next item in 2,127 dollars and 60 cents. for the ransom of the vessel and cargo, and the payment of the costs of court. The evidence upon this head is not very satisfactory in its details. It is asserted that the vessel was seized for the want of papers, but whether as prize of war, or to enforce a municipal forfeiture, is not distinctly stated; and no copy of the proceedings of the court is produced to clear up a single doubt or obscurity. Nor does it appear, whether the compromise was made before or after the libel was filed; and it is admitted that it was made without taking the advice of counsel, upon the mere opinion of a merchant at Antigua, who supposed that a condemnation would certainly ensue. Upon what legal grounds this opinion could be reasonably entertained, it is extremely difficult to perceive. Assuming that the vessel and cargo were seized as prize of war, it cannot for a moment be admitted, that the mere want of papers could afford a just cause of condemnation. It might be a circumstance of suspicion; but explained (as it must have been) by the preparatory examinations of the officers and crew, and by the fact of a voluntary arrival, it is difficult to suppose that there could be any judicial hesitation in immediately acquitting the property. And the farthest that any prize court could, by the utmost straining, be presumed to go, would be to order farther proof of the proprietary interest. It would be the highest injustice to the British courts to suppose that the mere want of papers, under such circumstances, could draw after it the penalty of confiscation. We do not, therefore, think, that the ransom was justifiable or reasonable. The utmost extent of loss to which the owner was liable, was the payment of the costs and expenses of bringing the property to adjudication; and for such costs and expenses, as far as they were incurred and paid, the owner is now entitled to receive a recompense. In this respect, the decree of the circuit court ought to be amended.

6

The item for the supercargo's commission was also properly rejected. It does not appear, with certainty, to what sum he was entitled; and under the circumstances, if lost, (which is not satisfactorily shown,) the commissions were not lost by any act for which the respondents are liable. The sum allowed for the travel, attendence, and expenses of the supercargo in procuring testimony, by the circuit court, is, in our judgment, an adequate compensation.

7

The sum of 44 dollars was (probably by mistake) deducted by the circuit court from the expenses at Antigua. This sum is to be reinstated.

8

To the decree of the circuit court there are, consequently, to be added the following sums:

9

For expenses and costs of court at Antigua, 542 dollars, 21 cents.

10

The loss on the exchange to pay that sum, (say) 188 dollars.

11

The short allowance of expenses, 44 dollars.

12

In the whole, amounting to the sum of 774 dollars 21 cents, on which interest, at the rate of 6 per cent., is to be allowed from the time of payment up to the time of this judgment. And the decree of the circuit court is to be reformed accordingly.

13

Decree reformed.

a

They cited The Lucy, 3 Rob. 208. The Narcissus, 4 Rob. 17. The Lively, 1 Gallis. 315.

b

He cited Del Col v. Arnold, 3 Dall. 333.

c

Vide ante, vol, II. APPENDIX, note 1. p. 5. The jurisdiction of the admiralty, as a court of prize, has been recently reviewed in England on an application to the court of chancery for a prohibition, in which it was determined, that this jurisdiction does not depend upon the prize act or commission, nor cease with the cessation of hostilities; but that it extends to all the incidents of prize, and to an indefinite period after the termination of the war. Ex parte Lynch et al. 1 Maddock's Rep. 15