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master, provided the latter acted in the course of his employment as such; if otherwise, the owner is not bound, as Ulpian fully demonstrates.* The appointment is the sole cause why the proprietor of the inn and the owner of the vessel are responsible, if what has been done belonged to the business for which the authority was given, and not to some other one, different from it. He who appointed the captain of a privateer must have known, that his business was to make captures, and that if he should execute it improperly, it would be imputed to the owner for having appointed a dishonest or an unskilful captain. If the master having borrowed money for the repairs of his vessel, applies it to his own use, Ofilius tells us very properly, “ that the owner is liable and must impute it to himself that he employed such a person.”+ Wherewith agrees, what the states-general say at the close of their decree of the 22d of October 1627, “ that the owners must take care that they employ proper captains."
If the proprietor of an inn is liable for the acts of the innkeeper, and the owner of the vessel for those of the master, it clearly follows, that they are so to the amount of their whole property, and that they are not discharged by delivering up the inn or the vessel. I do not remember to have seen this doctrine contradicted any where, nor could it be contradicted with any appearance of reason, for nothing is clearer, than that those who are responsible for the acts of others are so to the whole extent of the damage which they may occasion, and therefore the owners of a privateer are bound to make good in toto, the damage suffered by the illegal spoliations of their captain.
The laws which I have already mentioned, afford strong arguments in favour of this principle. The owners of privateer ships are bound to give security, formerly in twelve thousand, now in thirty thousand florins, that no injury shall be done to an ally or neutral. Now, if they are not personally bound to a farther extent than the value of the vessel, why is a specific sum required which may, in many instances, greatly exceed that value? If the law had meant that the value of the ship should fix the extent of their responsibility, it should have directed her to be valued, and ordered security to be taken in the precise amount of the valuation. A still stronger argument may be drawn from the Forma of the 28th of July 1705; for, by that law the owners themselves are declared to be liable for the damage which may be suffered by the wrongful acts of the privateer ship, and every thing belonging to her equipment is made subject to a special lien or tacit hypothecation to answer for that damage. Away, then, with the doctrines which are drawn from the Roman laws, on the subject of the actio de pauperie and actio noxalis. These do not apply to the present question, and are founded on quite different principles.
* ff. de exercit. act. 1. 1. & 12. + Ibid, $ 9.
We must therefore conclude, that the supreme court, in the case above mentioned, gave an erroneous sentence; for, if the owners of the privateer ships had appointed the captains who took the Venetian vessels, and had authorized them to make captures, they were bound for the whole, in the same manner as they would have been if they had appointed those captains for mercantile purposes, and had given them authority to make commercial contracts. Perhaps, however, it will be said, that the report does not expressly state, that those five vessels were privateers; but if they were not such, it cannot be said, that the owners gave authority to their captains to make captures, and in that case, I would wish to know, why the court condemned the owners to the restitution of the Venetian ship and cargo, and awarded execution even against the vessels of those owners, and thus condemned them for an act which was not within the authority committed to their captains, which is evidently contrary to the most familiar principles of law. In such a case, therefore, the owners of a vessel cannot be made in any manner liable; for they, indeed, have put the master in their place and stead, but merely as to the business which they have ordered him to transact, and if in the course of that business, the master had committed
fault, or has been guilty of fraud, they are bound to answer for him, otherwise not. If I give to a carpenter a vessel to repair, and he gives it to his apprentice, who, with one of his master's own tools, happens to kill somebody, the master will not be at all answerable for it. Therefore, the action against owners of ships cannot be assimilated to the action de pauperie, except so far as it makes the owner of a horse or mule liable, if by the fault of his driver, the animal has done some damage, but the analogy of that law does not reach farther.
Agreeably to the doctrines which I have contended for, owners of vessels will clearly not be liable, if they have not appointed the master for the purpose of making captures, otherwise they will be responsible, not merely to the amount of the value of their vessels, but to that of their stipulations, which formerly were of 12,000 and now are of 30,000 florins. In addition to that, those who have suffered the damage, may, by virtue of the decree of the 22d of October 1627, sue the security of 10,000 florins, which the captain is obliged to give, that he will bring his prizes into the port from whence he sailed, for so the decree expressly provides. I think, however, that such a demand would be unjust, unless it had been made known to the securities, at the time of their entering into the stipulation, that they would be exposed to that liability, and had agreed to it; for if they had simply engaged, as is almost always the case, that the captain should return with his prizes to the port from whence he sailed, I cannot express how unjust it appears to me, to make them liable on that security for any other cause; as I have already hinted, when speaking on the subject of securities.* But if all that I have mentioned is not sufficient to repair the damage, what shall we say in such a case? Are the owners to be held further? I think that they are, until they shall have made good the whole damage; for, it is clear, that a pledge or security does not liberate a debtor, unless it is fully sufficient to discharge the debt.
* Above, p. 149.
Moreover, if the vessel, which we are speaking of, be not a privateer, that is to say, if she has no commission, but nevertheless makes captures by order of the owners, I think that the same thing is to be said as if she really were a privateer; for, the right arises out of the authority and the appointment, and it is nothing to those who have suffered the damage, whether they are injured by a real privateer or by a vessel not provided with a commission.
Of Captures made by vessels not commissioned.
not commissioned to make captures is attacked by an enemy, and in her defence, or from some other justifiable cause, takes an enemy's vossel, to whom in such case the prize is to belong? Three contending parties appear, who seem to have an equal claim to it, and in favour of each of whom many ingenious arguments may be adduced; they are the owner of the ship, the captain and mariners, and the shipper who may have taken her to freight.
On behalf of the owner of the ship, it may be said, that he is entitled to the prize, because it was taken with his own ship and guns, and because the captain and men who effected the capture were in his employ, and bound to labour for his benefit: it ought not to be given to the captain nor to the mariners, because they are not entitled in law to any thing besides their wages, nor to the freighter, because he only hired the vessel for the transportation of his merchandize, and for nothing else.
The master and mariners, however, may plead that the capture was achieved by their prowess and with the danger of their lives, and therefore, that they are justly entitled to the benefit resulting from it: that with respect to the owner of the ship and the freighter, they cannot in justice claim the prize, because they had not hired him to make captures, and the contract which they had made together, was for purposes of a quite different nature.
And lastly, on the part of the freighter, it may be argued, that he had hired the ship, the guns, the master, the mariners, and the right to their labour, not only for the transportation