The Amiable Nancy

(prize. The Amiable Nancy. The district courts of the United States'have jurisdiction of queci(iohs of prize, and its incidents, independent of the special provisions of the- prize act of tho 26th June, 1812, eh.- 430. (CV1I. J tfa an illegal seizure, the original wro»g-doers may be made responsible beyond the loss actually sustained, in a case- of gross and wanton outrage; but the owners of the privateer, whoare only constructively liable, are not bound to the extent of vindictive damages. An item for loss by deterioration of the cargo, not occasioned by ft»? improper cond uct of the captors, rejected!. The probable or possible profits of an, unfinished voyage afford no-rule to estimate the damages, in a case of marine trespass. The prime cost or value of tho property lost, and, in caso of injury the diminution in value by reason of the injury, with interest thereon affords the true measure for estimating damages .in sueh a case. An item for tho ransom of the vessel, and cargo, which had been subsequently seized by another belligerent,(as alleged for want of papers)* of which the vessel had been deprived by the first captors, rejected under the particular circumstances of the case. This waq a suit for a marine trespass, cómurencetl in the distriet court for the southern district of New- , Yortc, by the libel'1 ants and appellants, who were the o\v:.er, 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 cárgo belonged tobe libellant, Peter Joseph-MfraulV of Port-au-Prince, in the island of Hfcy ti, or St. Dor «lingo ;. that the vessel, with a cargo of corn, sailed from Port-au-Prince about the 7th of October, 18.14, 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 52 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 Eamés, and owned by the defendants; that Jeremy C. Dickénson, 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 libel,lants, respectively, of divers articles of wearing apparel, money, and other valuable effects of a great value, being ail that the libellants, at the tiiAe 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 sá[d schooner was a Haytian schooner as aforesaid ; that the said armed boat’s crew also robbed and pondered the said schooner of divers articles belonging to her tackle and apparel, to wit, óf a log. reel and line, lines and cordage, and also, of poultry'; and greatly ill-treated the libeltants, and, in particular, knocked' .down and greatly bruised the libellant, Frederick Roux, and put the libellants in bodily fear and danger of thejr lives; that about. twelve o’clock of the same night, tjie armed boat’s -crew aforesaid Ifeft 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 sehooner 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 suck 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 he restored to the libellants and th'e said schooner. That the said schooner continued on her course as aforesaid, and on or about the morning of the 8th oi .November, in the year aforesaid, arrived at the .entrance of the harbour ot St. John’s, in the island of Antigua, when she was seized .and detained by hrs Britannic majesty’s guard-brig Spider, on account of the want of her papers; and both the vessel apd 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 o.f 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 cargp, and total loss of the same, as of the said schooner; the schooner ■and.her cargo were condemned as good and lavyful prize, and were immediately delivered up to the libellant, the supercargo aforesaid, on the engagement fp ‘pay to the said captqjps the sum Of $1,00.0, and all; ldtv and court charges, to a great aihount; to wit, to the amount of about $542 21, which said compromise, law and court charges together, amounted to the' s<im of $1,542 21, which the libellant,. Frederick Roux, ☆as 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 tanner sum of $53644 by selling bills to procure specie to make the said pay--, ment; besides which, the said'cargo of corn sustained a loss of $1,200, by its detention in pott as foresaid,' deterioration and fall, m 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 ófthe robbery and plunder of the said schooner, and- the ill treatment'ofthe libellants, and the capture and detention, as aforesaid,. heavy loss and damage accrued to the libellants, respectively, amounting in the whole to $15,0,00. 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 bqat’s crew, with- al* 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 t.lieir 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 fcharged; they do, however, admit, that the said schoohr er'was.boar'ded by a crew from the scourge., under the belief that she was an enemy, and that some improper .acts W'ere .committed by some of the said crew; but they deny their responsibility- therefor, especially as. the - ,saj4 <;jrew, or some of them, were punished for their impiopex conduct. -Samuel G. Lathrop, captain of marines on board the Scourge, proved, that whilst the said vessel was .on a cruise they fe)l 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 hoarding boat, under the command of Lieut. Dickenson, and that, as' soon as the boat came alongside of the schooner, ' Dicikenson and himself went on hoard of her, and all the men hut 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 bé a Haytián 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' tne 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 onboard.' ■ Commissions were issued to Antigua and Port-auPrince to take testimony on-the part of the. libellants.. Under the Antigua commission, if-was proved, that the Amiable Nancy and her cargo were seized, libel-led, 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 pf 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 wTere 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 comr •plained 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 theschoon.er, 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 ¿t 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 sus- . tained by the libellants. The deputy 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 bf corn,.at Antigua, in-consequence of the capture, 3,200 00 Detention, wages of-lhe crew at - Antigua, in consequence of seizure by the Spider brig, occasioned bythe loss of ship’s papers, . . ... 414 00 Articles plundered from; the schooner Amiable Nancy, 25 OC Money and effects plundered fromM. Roux, the'supercargo, . 470 00 i-ióney and effects plundered from the officers and crew of che Amiable Nancy— From Captain Amie, 10000 Moriset, mate, 80 00 E. Lenau, „ 54 00 J. J. Loiseau, 53 00 Michael,' . 10 00 Savou; . 7 GO —304 00 —*-4,540 SO; 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-auPrince, . ,. . » 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, . . i. ‘' . . .. . 1,500 00 $10,746 67 This report was confirmed by the court, and it was further ordered by the court, that ti e-defendant should pay to the libellant, for personal injuries, as follows : To the supercargo, five-hundred dollars, $500 To the captain, one hundred dollars. 1Ó0 To the mate,, one hundred dollars, 100. To the sailor, fifty dollars, 60 - — ■“ $750- And that the defendants should pay to the libellants or.e thousand dollars, for the commission plaimed by the-supercargó, Frederick Roux, seven hundred and fifty dollars fof 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 tf 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, 1S17, two years and eight months, 103 94 -498 94 To the Master of the Schooner. . 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'™ collecting testimony at Antigua, Port-au-Prince, &c.,and attendingtrial, . . . 750 00 To the Mate. 1. For the.property lost by him, 80 00 The like interest on this sumj 21 32 2. For injury to his person, 100 00 — — 20132 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, oWnér of the schooner and cargo, the sum of four hundred and 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 RoaiX, 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 ssid 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 ihis court; from which decree the libellants appealed to, this court. This cause was argued by Mr. Sergeant and Mr. ■Baldwin for the appellants, and by Mr. D. £. Ogden for therespondents. March 11th. They cited The Lucy, 3 Rob. 208. The Narcissus, 4 Rob. 17. The Lively, 1 Gallis. 315. He cited Del Col v. Arnold, 3 Dall. 333. [MAJORITY — Mr. Justice_ Story] Mr. Justice_ Story delivered the opinion of the court. The jurisdiction of the district court to entertain this suit, by virtue of its general admiralty arid 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 thought into- doubt. 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 he made to the unoffending neutrals, for all the injuries losses actually sustained by them. And if this .. , • . . , , . v , were a suit against the original wrong-doers, it migrit proper to go yet farther,- and visit upon them in s^'aPe exemplary damages, the proper punishment which. • belongs to such lawless misconduct, _ . . ’ ”, , , , . .. . But it is to be considered, that this is a suit, against 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 scarjcek) ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demer.it oí'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 riot hound to the extent of vindictive damages. While the government of the country shall choose to authorize the employment of privateers in its public Weirs, with the knowledge that such employment cannot be exempt from occasional irregularities and improper conduct, it connot 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 tó punish offenders. doers in a line trespass •refesponsiblé damages,1^but.ke the are not respnn sible beyond the aetuai loss sained.1^ Actual wrong- ¡^"by'deíeimproper conductofthe cap rejeoted* . 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 he, whether any of the items allowed by the district court were improperly rejected by the circuit court. And first, as to the item of 1,200 dollars, for losses sustained in the sale of the cargo at Antigua. loss is said to have been occasioned partly by the . . „ , , . ... terioration of the corn by sea damage, the mixing of the damaged with the sound corn by the ■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 o.f the officers and crew.of the privateer. The- vessel was Actually bound lo '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 ordinal ry 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. ornossíbtóapro fini-ihcdal>von" *ge afford ges in a .true rule of da mages xn -such Another item is .3,500 dollars,- for . the loss-of the suPPose(l profits of the voyage on which'the AmiaNancy was originally bound. In the opinion of court, this item.'also was properly rejected. The possible benefits of a voyage, as yet in ca.n 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.- Ip 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, orwalue-of the property lost-, at the time of the loss, and in the case of injury, the diminution-in value, by reason o.f the injury, with interest upon- such valuation, afforded the true measure for assessing, damages; This rule may not secure a píete 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. Tiie item for jjj® The next item is 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 is not very satisfactory in. its details. It is asseited 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 c’enr up a single doubt op obscurity. Nqr 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 fáct of a voluntary arrival, it is difficult td 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 bé the highest injustice to the British courts to suppose that the mere want of pa'persj 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, wras the payment of the costs and expenses of bringing the property to adjudication ; and for such costs and expenses, as far as they were incur* red and paid, the owner is now entitled to receive a recompense. In this respect, the decree-of the circuit court ought to be amended. commfsslon'if8 not allowed. The item for the supercargo’s commission was also properly rejected. It does not appear, with certainty* sum he was entitled and under the circumstances, if lost, (vrhich. 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. The sum of 44 dollars Was (probably by mistake) deducted by the circuit court from the expenses at An tigua. This sum is to be reinstated. To the decree of the circuit court there are, consequently, tobe added'the following sums : For expenses and costs of court at Antigua, 542 dollars, 21 ■ cents. The loss on the exchange to pay that sum,, (say) 188 dollars. The short allowance of expenses, 44 dollars. 'In the whole, amounting, to the sum of 774 dollars. 21. cents, on which interest, at the rate of 6 peí cent., is to be allowed from the time of payment up tp the time of this judgment. And the decree of the circuit court is to be reformed accordingly. Decree refórmed. Vide ante, vol, II. Appendix, note 1. p. 5. Th» jurisdiction of the admiralty, as a court of prize, has been recently re. viewed in England, on an application to the court of chancery for a prohibition, in which it was determined, that this juris, ijetion does not depend upon the- prize <Tct op.coimnis.~ion, r.or 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