# Appendix

APPENDIX.
“ The following is the opinion oƒ Mr. Juʃtice RUSH, delivered in the caʃe oƒ Purveyance, et al. vs. Angus (Ant. 180.) I received it too laƒt ƒor inʃertion in its proper place ; but, I hope, it will be here acceptable to the Public.”
PURVEYANCE et al. verʃus ANGUS.
R
A libel has been filed in the Court of Admiralty for the State of Penʃylvania, on behalf of John Purivance, Joʃeph Dean, and Benjamin Harbeʃon, againft John Angus, fetting forth and charging, that the faid John Angus was duly appointed Mafter and Commander of the brig Hibernia, the properly of the Libellants, bound on a voyage from Philadelphia to the port of Ocatavo in the ifland of Teneriƒƒ; that on his voyage aforefaid, the faid Angus, without any probable cauʃe oƒ capture, and with a view to his own private intereft and emolument, did combine with certain, malefactors, and take the brig Betʃey out of the poffeffion of Silas Talbot, the faid brig being at that time a prize to the faid Talbot, and that Angus know ʃhe was prize to him. The Libel further charges, that Talbot hath recovered Ł4000 againft the Libellants for the trefpafs and injury aforefaid; and concludes with praying, that, as the Libellants have been compelled to pay that fum of money, through the mifconduct of Angus, their Captain, they may be enabled to recover from him a full equivalent.
To this libel an anfwer hath been filed on the part of Angus, in which he explicitly denies his taking the Betʃey on the high feas without authority from his owners, and without probable cauʃe. He alfo utterly denies, that he knew the brig Betʃey had been taken by Talbot, and that he had any intention to defraud him, or his (Angus's) owners.
A variety of depofitions and exhibits have been produced in the caufe, and the Judge of the Admiralty hath pronounced a decree in favour of Angus, the Refpondent. ​
From this fentence an appeal hath been brought by the Libellants to this Court, the higheft in the State, having the ultimate and fuperintending power to correct the errors of all interior tribunals.
It is right and proper before we examine the evidence, accurately to ftate the queftion in controverfy.
We are not now to decide, generally, whether Captains of veffels are not refponfible to their owners for neglect of duty, or breach of truft ; it being admitted on all hands, that the mafter may fue his fervant for any breach of truft or confidence. If a fhepherd, by his negligence, fuffer my fheep to be drowned ; or fhould my cattle, through the negligence of my fervant, commit a trefpafs upon my neighbour ; the fhepherd and fervant are both liable in thefe cafes. And, in the latter cafe, I am refponfible over to my neighbor for the injury he receives through the neglect of my fervant. Doctor &Student 37. Noy. 109. 5 Co. 13. 14.
Nor are we now to enquire, whether Angus be refponfible to Silas Talbot for a trefpafs. I admit that he is clearly fo ; and that no defence he could make, founded on ignorance, accident, or miftake, could avail hi on fuch fuit by Talbot. If Angus joined in the trefpafs, it is immaterial to Talbot what where his views, or whether he did it intentionally, or not. If I hurt a perfon through negligence, it is no juftification in an action of affault and battery. Buller. 16. And there is a cafe in one of the books, where a gun went off by accident, and wounded a perfon, and it was held that trefpafs lies It is to no purpofe, therefore, and wide of the perfent queftion, to cite authorities to prove that in trefpafs all are anfwerable. Whether Angus fhewed more or lefs zeal ; whether he did all the could, or not ; are ufelefs enquires at this time. In trefpafs all are liable ; and this rule would apply on a fuit by Talbot againft Angus, even though the trefpafs might appear, on the part of Angus, to have been incautioufly, or unintentionally, committed.
The queftion before the Court is a fpecial one, refting on its own peculiar circumʃtances, and not involving in it the examination or adjuftment of any general principles of law. But before I proceed to ftate what I take to be the queftion, I will make a few previous obfervations, on the doctrine of refponfibility, fo far as the fame is applicable, or neceffary, at prefent.
The owners, as well as the captains of veffels, are, by the civil law, liable for trefpaffes committed on the fea. The owners are liable on the principle, that the captain is their fervant, bound to obey their orders, and to purfue their inftructions : a confidence or truft is repofed in him, that he will conduct himfelf agreeably to the principles of integrity and good faith ; and that he will be guilty of no outrage upon others, or of any criminal neglect whatever. By rendering the owners refponfible for the captains, the law hath laid them under the ftrongeft obligations to employ none ​but men of skill, capacity and integrity, to navigate their vessels. Perhaps, too, the principle in part received its establishment, from an apprehension, that the commander of the vessel might not be of sufficient ability to compensate for the injury committed by him. In all cases of spoliation, both captain and owners are equally liable to the party wronged.
But what is the nature of the contract between the owners and the captain? It is either general, or special. It is either created by the law, or by the parties themselves. A commander of a vessel,on going to sea without any instructions, is bound to govern himself by law : and, in such case, if his owners are injured through his misconduct, he is certainly responsible again to them. This duty, however, which the law imposes upon the commander of a vessel, may be altered by his owners. They may, for example, order him to take and seize the vessel of a friend , and, in cafe of his compliance, both he and his owners will be responsible to that friend: but the captain, in this instance, will not be liable to his employers, because he acted according to instructions. The rules of responsibility, therefore, are not reciprocal. The owners may be liable to a person injured, and it will not thence follow, that the captain is answerable again to his owners. These observations are made to refufte a very improper inference, that because a captain has injured a third person, for which the owners are liable, that, therefore, the captain is again responsible to the owners.
The question then before the Court is this: Is Angus, (who actually committed a trespass on the property of Silas Talbor, in conjunction with captains Prole and Thompson, and whose owners, the present libellants, have since been compelled to make compensation to Talbot for the trespass of Angus,) responsible to his owners, for the monies paid by them on account of the said trespass, under all the circumstances of the case?
This I take to be a fair state of the question ; and the answer must depend, first upon the evidence, and secondly, upon the law.
I have stated in the question, that Angus committed a trespass. This appears evident from his signing the orders, and from his putting two sailors on board the Betsey, to assist in navigating her into port: Unless, therefore, it can be shewn, that Angus was imposed upon by his comrades, Prole and Thompson, to act in this manner; and that he was authorised to place a reasonable confidence in them, the decree of this Court ought to be against him. In other words, unless he can shew some authority, either express, or implied, for what he did, he ought to be considered in the same criminal point of view with the two other captains.
In the beginning of September, 1779, the Hibernia, commanded by Angus, left the Capes of Delaware, in company with Captain Thompson, who commanded the Achilles, and with Captain Prole, who commanded the Patly. They were all armed, and had Letters ​oƒ Marque. Upon the 6th and 7th of the same month, the transaction happened which gave rise to the present dispute. William Davis, a passenger on board the Patty, says that on the 7th, about ten o'clock, A.M. he heard a firing, and saw two vessels engaged in battle, and that at the time, the three brigs, the Patty, Achillas, and Hibernia, were within hail of each other. This firing, if every heard on board the Patty, or the battle seen, must have been on the sixth, and not on the seventh. He adds, that he verily believes that the two other brigs heard the firing also.
In opposition to this evidence, let us contrast the testimony of James Leach, the captain, and John Russel the mate, on board the Betsey. They both swore, that, at the time the Betsey was captured, there was no other vessel in fight but the Argo; and they add, that they verily believe, no person did see any other vessel. If they were in sight of Davis, Davis must also have been in sight of them ; and the firm belief of Leach and Russel, that no vessel was in sight, is at least equal in point of proof, to the firm belief of Davis, that the Hibernia and Achilles saw the engagement. It is remarkable too, that Davis says, thatAngus has his boat holsted out, in which he is contradicted by all the other witnesses, and appears to be under a great mistake.
But I shall wave any further observations on this point ; for, though it should be admitted that Davis, and those on board the Patty, heard the firing and saw the chase, it cannot thence be inferred, that those on boar the Hibernia did, especially as they swore that they did not. Inattention, noise and a variety of other causes, might prevent the people on board one vessel, from seeing or hearing what those on board another vessel, did see and near.
It appears to one, therefore, highly probable, from the evidence before the Court, that Angus did not on the 6th, see the taking of the Betsey. His conduct on the 7th, when he came up to the other captains, strongly confirms this idea. For no less than six witnesses out of the seven, who were present when Angus came up (that is, every witness except Davis) expressly mention, that Angus enquired what they had got ; and upon being told fhe was a good prize, he replied, if she is a good prize, so must the stoop be: and that he further asked, why one of their last-failing vessels did not chase her ; upon which they ordered him to pursue her, which he immediately did.
Now, it is in full proof, from the evidence of Captain Talbot, that the two other brigs had been up with the Betsey about an hour before Angus came up, and that their boats had frequently passed to and from the Betsey. They, therefore, had full information; but Angus had not the least knowledge, except what he received from their declaration, that she was a good prize. If then she had been a good prize, of which he had not, at that time, the least reason to doubt, well might he reply, that the other vessel, ​ meaning the Argo, was also a good prize. This observation, made at this period of the business, unanswerably shews, that he could not have seen the Betsey and Argo engaged ; for, it is not conceivable that he could be so grossly ignorant and stupid, as to fee two vessels engaged in battle, and, at the same time, suppose them to be both enemies.
With respect to the idea of the three captains having consulted what to do with the prize, it scarcely merits consideration. Grove, says, that he does not know on board which vessel the consultation took place ; in which he is contradicted by Davis who fays it was not on board any particular vessel, but that each captain continued on board his own. The truth, however, is, that there never was any consultation, and, in this, all the other witnesses agree.
The orders from the three captains to the prize master, and which are signed by Angus contain a direction to him to get, if possible, into Delaware, Egg-Harbour, or Cheʃapeak, “ oƒ ƒear oƒ the sloop Argo's ƒalling in with you, if you go to New England. ” From these expressions, it has been contended, that Angus was privy to the whole transaction; but I do not fee thing in hat point of view. It is possible that he signed the orders without considering attentively the meaning of the words, believing, at the fame time, that his comrades, who had made the necessary enquiries on board the Betsey, had their reasons for inserting them. It is certain, that he though the Argo an enemy, and as such pursued her. He might, therefore, very naturally have supposed the other captains had reason to believe the Argo was bound to New-England ; and that on this account they had inserted those words in the orders.
What,then, is the nature and history of the present transaction? Three vessels, commissioned as Letters oƒ Marque and Reprisal, bring about to fail at the fame time from the port of Philadelphia, the owners of the Hibernia, give their captain orders to cruise with the other two. He does so ; and, the course of their united operations, he is deceived and mislead by them in such manner, as to concur with them in committing a trespass. Had Angusbeen directed, generally, to cruise, the cafe might have been different ; for, then every degree of confidence reposes in his associates, must have been at his own risque. But Angus, being expressly authorised to curise with the two other vessels then failing to the east, and act, or event, which was likely to happen on joint cruise by the three vessels, or things, was as much authorised, as the cruising itself was. Every thing usually done by persons jointly cruising, is implied in the authority to Angus to cruise with the others. The owners themselves have laid the foundation of the trust, or confidence, that he reposed in Prole and Thompson, and should therefore alone suffer. The conduct of Angus seems to be clearly warranted by the rules and maxims that invariably govern the commanders of vessels, when ​ they act in conjunction with others on a cruising voyage. I perceive neither crassa negligentia, nor lata culpa in his behaviour ; and I take the law to be, as stated in 4 Burr. 2060, that he is not answerable unless in those two cases. It is preposterous to say, that he ought not to have credited Prole and Thompson, when he was ordered to join with them on a cruise. Hard is the doctrine, that a servant, who apparently acts in the best manner for the interests of his master, should be liable for unavoidable failures, especially when they originate, not in himself, but in others : It is sufficient to deter all men from accepting a trust.
This authority to cruise with Prole and Thompson, certainly means something : but, if it will not justify Angus's conduct on this occasion, it is totally insignificant and void ; and an authority to cruise with others, is an authority to do nothing ; that is, no authority at all.
However dispofed to concur with my Brethren in this cause, I have not been able to do. Unanimity in Courts of Justice, though a very desireable object, ought never to be attained at the expence of sacrificing the judgment.
Upon the whole, as it appears to me, that Angus did not combine with the other Captains to take the Betʃey out of the possession of the Argo ; and that he acted such a part, as he thought would promote the interests of his owners; my opinion is, that the decree of the lower Court should be affirmed: But a majority of this Court entertaining different sentiments, it must nevertheless be reversed.
THE END.