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The Amiable Nancy.

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parties making it, and those who are now to be charged with it, that it must be considered as altogether at the peri) of the former. A compromise with captors in time of war, respecting property under insurance, is binding upon underwriters, because by capture a technical total loss takes place, upon which the master becomes an agent for all the parties in interest, and it is therefore reasonable that his aets should bind those whom he represents. But in the case before the Court, there is no contract or agency expressed or implied. A trespass can never create such a relation between those who commit the tort and those who are injured by it, as to constitute the latter the attornies or agents of the former.

None of the consequences therefore flowing from the compromise are chargeable on the appellants.

This however, is not the only ground for rejecting many of the allowances which were made by the District Court. If the compromise were binding on the appellants, they have been rendered answerable for damages, either not necessarily consequent on it, or too uncertain, if they are to form a proper charge against the owners of the Scourge. To this objection the charge of three thousand five hundred dollars for loss of voyage, is peculiarly liable, which is also a departure from the rule prescribed for the assessment of damages, in cases of this kind, by the Supreme Court of the United States. By that rule, the measure of responsibility, “is the full value of the property injured or destroyed.”

Damages for the loss of voyage, are by much too contingent and uncertain, to form the basis of any satisfactory calculations; for if it be adopted as a rule, it must apply to long as well as to short voyages. Every one will at once perceive the injustice of such an allowance in an India voyage, where a cape · ture and plunder of all her specie might take place, the very day after the vessel's leaving port; and in less than a fortnight she might be on a second voyage with a new supply of

The Amiable Nancy

dollars. Why, in such a case, should the profits be paid by the captors ? And here, who can say, although the voyage be shorter, that the Amiable Nancy would ever have arrived at Bermuda, or what might have been the state of the market there, or whether the muskets would have been delivered according to contract? Or if so, whether the vessel would have reached Port-au-Prince in safety, and found the government of Hayti disposed to pay for them, at what is now alleged to have been the stipulated price? Or who can say, if it be conceded that the original voyage was frustrated by the irregular conduct of the crew of the Privateer, (which may well be doubted, as the schooner was bound to Antigua when she was boarded,) that another voyage equally, or more profitable, might not have been projected at Antigua ?

It is a fact in this cause, that a very enormous profit, approaching to three hundred per cent., was made on the cargo shipped at St. Bartholomews, and sold at Port-au-Prince, which, it is true, was not very large ; but if the appellants be liable for any loss oecasioned by not going to Bermuda, some deduction should be made for the gains actually made on the voy, age from St. Bartholomews to Port-au-Prince..

The nature of this action, however, is relied on as justifying a mode of assessing damages different from the one which is applied to ordinary cases of trespass. It is taken for granted, that vindictive damages are to be recovered, and that in such cases a Court will not be very particular as to the limits within which it will circumscribe a defendant's liability. But why assess yindictive damages? Have the appellants committed the outrage, or ordered it, or in any way sanctioned it? Or have they divided the plunder, or derived any benefit whatever from it? They were employing their vessel in a way permitted and encouraged by the government of their coun, try, and under the securities prescribed by law. It is true, they have had the misfortune, which is but too common in

The Amiable Nancy.

this business, of employing men who have disgraced the flag under which they acted. Unless this misfortune be attributed to them as a crime, they are innocent of any actual or intentional injury, and perhaps more entitled to the protection of the Court than those who are generally defendants in actions of trespass.

However desirable it may be, in the opinion of many, to put a stop to this mode of warfare, no Court has a right to throw obstacles in its way, or to discourage it, by imposing excessive and extravagant penalties for every irregularity, however trifling, so long as government think proper to furnish public and private vessels with commissions of this kind. If the rule of vindictive damage, which has been pressed upon the Court, were adopted, it might amount to a total prohibition of privateering; which no Court, mindful of its duty, will think it has any right to effect in this way.

Nor will such mode of assessing damages add much, while the practice is continued, to the security which neutrals already have, against occasional trespasses on their property. If the fear of a forfeiture of wages and corporal punishment, to both of which some of this crew have been sentenced by a naval court martial for their improper conduct, will not restrain mariners, who engage in this service, within proper limits, it is not probable that they will be influenced by any apprehensions of laying on their employers an onerous responsibility.

But if such a rule is to be resorted to, as a means of exciting those who engage in this species of warfare to greater cir-cumspection in the choice of seamen, it is believed that every expectation of that kind will prove fallacious. It will not be easy, whatever care or diligence be used, to make any discrimination on which much dependence can be placed. Seamen for this purpose would continue to be selected more for their

The Amiable Nancy.

bodily strength, their personal courage and seamanship, than from any regard to their moral character; about which it would be much more difficult to acquire information, than concerning the other qualifications which have been mentioned.

There are other objections to such an arbitrary measure of damages. It places too much in the discretion of a Judge, whe, under the influence of the angry feelings which such irregularities are well calculated to call forth, would often award an immoderate compensation without reflecting, that the person who is to make it, may be as innocent as those to whom it is to be paid, and may hold in as great detestation as the Court itself the violence or wrong that has been perpetrated.

Such heavy assessments, and which are scarcely reducible to any rule, will also prevent compromises between the parties. No offer of compensation by the owner of a privateer, however fair, and although fully commensurate with the loss that has been sustained, will satisfy the extravagant pretensions of the injured party, which such a rule will prompt him to set up.

Neither is the loss on the corn, from the damage occasioned by the conduct of the Spider's crew, to be thrown on the appellants. This would render them liable, not only for the illegal acts of their own mariners, but of those in whose choice they could have no agency.

The supercargo's commission must also be deducted; for besides the objection to it, that its loss was occasioned, if at ·all, by his own compromise, it is liable to a further difficulty.

It does not appear what remuneration he was to receive, but by scarcely any possibility could his commission on the sales of the outward cargo, to which it must be restricted, have amounted to any thing like the sum which has been allowed. There is nothing indeed in the evidence to render it very clear, that his commission has not been earned and paid.

The interest on these items will, of course, be deducted, and indeed if these sums were allowed, it would hardly be proper,

The Amiable Nancy. after so liberal an assessment of damages, to have calculated any interest on them.

Little or no objection has been made to the compensation i allowed for the personal wrongs inflicted on some of the re

spondents, which therefore will not be disturbed; but I cannot suppress my surprise, that for injuries of this nature, which are often produced by some intemperate language of the party claiming a recompense, the owners should ever have been considered as answerable.

Considering that seven hundred and fifty dollars has been allowed for counsel fees, and the proctor's costs, and the costs of Court, the further sum of fifteen hundred dollars, given to Mr. Roux for his expenses in producing evidences, attending the trial, &c., is too much, and must be reduced one half, especially as the greater part of the testimony has been collected for the purpose of rendering the appellants liable for charges which, in the opinion of this Court, cannot be recovered of them.

This Court reverses the sentence of the District Court, and allows as follows:

To the owners of the schooner for ex

penses during the detention at Anti-
gua, according to the estimate of the

consignee - - - - $300 00 For the expenses of mate and supercar

go while there, and according to the

estimate of the same witness - 70 00 For articles plundered from schooner

25 00 Interest on these sums at ten per cent.

from 1st January, 1815, to 1st Sep-
tember, 1817, two years and eight
months - - - - - 103 94

498 94

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