of his merchandize, but also for the defence of the ship for the sake of the goods that it contained, which defence is to be taken with every thing incident to it, and involves the right not merely of repelling, but even of capturing the enemy, to prevent his doing any injury. That on these grounds, he is justly entitled to retain the prize, and it ought by no means to be given to the owner of the ship, his captain or mariners, who all ought to be satisfied with the stipulated reward for the hire of the vessel and their labours. Such are the arguments which may be made use of in support of each of the above opinions. Before I proceed to state my own, I must premise, that there exists a decree of the board of directors of the West-India company, by which it is provided, "that fifty per cent. of the proceeds of every prize which shall be taken by a vessel hired out on freight, shall be paid to the company." This decree has been sanctioned by the states-general, and inserted in the instructions of the 15th of July 1633, for privateers cruising in the American seas. It is clear, that the directors, when they made that decree, attended only to the interest of their company, nor had the states-general any thing else in view when they gave it their sanction; for, they made no rule whatever in this respect for other privateers than those above mentioned. It must, therefore, be considered as a special law, made with a view to particular persons and circumstances, and which is not to prejudice other cases to which it is not directly applicable. As I have never seen a general law upon this subject, nor do I believe that any exists, the question is to be decided by the light of reason alone. On equitable principles, I think that the prize ought to be adjudged to the captain of the capturing vessel and his crew, and not to the owners or freighters. The latter, indeed, are the last who will be thought of. The owner of the ship appears better entitled, but still I would prefer to him the captain and crew. Others, however, have been of a different opinion.* • In a case of salvage, which bears the strongest analogy to a case of unauthorized capture, (on the supposition that any persons, others than the sovereign of the captor, may be considered as entitled to the prize,) the late In the year 1667, a ship sailing under a license from the French and Dutch West-India company, which had been granted to the freighters, captured an English vessel within the company's limits. The captors determined to keep the prize with them, though she was a worse sailer than their own vessel, because on consulting together, they agreed, that it was most advisable for the interest of the owners and freighters, as well as their own, that she should be carried into one of the West-India islands, where it was expected she would sell to better advantage. The question then occurred, to whom that prize was to be adjudged? The lawyers who were consulted on that question, decided, that the mariners, because they had been hired at a fixed salary by the month, and had not engaged themselves for shares of prize-money, should only have one tenth of the proceeds, and that the remainder should be equally divided between the owners and freighters. I do not know upon what principle those gentlemen allowed one tenth to the mariners, nor perhaps did they know themselves. It seems, that they had no difficulty as to the one half of the remainder, which they gave to the owners of the ship; and therefore, they pass it over without assigning any reason for it; but they endeavour to justify, by argument, the allowing of the other half to the freighters. They contend, that it was by virtue of the license which the shippers had obtained from the West-India company, that the vessel was permitted to navigate to the West-Indies, that therefore they contributed, in a considerable degree, to the capture, and ought not to be placed in a worse situation than the owners of the ship. They say, that the mariners did not take the prize for the benefit of the owners of the ship only, but also for that of the owners judge Winchester, district judge of Maryland, allowed one ninth part of the neat salvage to the owners and freighters of the salvor-ship, in proportion to their respective interests, in consideration of the risk to which their property had been exposed. The supreme court of the United States, before whom the cause was ultimately carried by appeal, increased the allowance to one third. The remainder was distributed among those who had been personally instrumental in the salvage. The Blaireau, 2 Cranch's Reports, 240. T. of the merchandize, and that they declared it themselves, in the resolution which they took, as above mentioned, to carry the prize into one of the West-India islands, for the best advantage of the owners and freighters. To these they add, a variety of other trifling and frivolous arguments; as for instance, that the possession of things is not acquired merely by ourselves, but also by those persons who are employed by us; that the owners of the ship were not present any more than the freighters, when the capture was made, and that if the ship, instead of capturing, had been captured, the owners of the goods on board would have suffered a considerable loss. But I am not at all convinced by such arguments as these, nor by those which I have mentioned above, in favour of the owners of the capturing ship; for, it is clear, that a prize by whomsoever taken, belongs solely to the captors, unless they acted by the command or under the appointment of another person. The only question, therefore, is, who took the prize? and it is manifest, in this case, that it was the master and mariners, and that they did not do it by the command or direction of another. Their services were, indeed, hired, but for the mere purpose of carrying goods, and for nothing else: Whatever advantage, therefore, may arise from the carrying of the goods, ought to be for the benefit of those who have made use of the agency of others for that purpose; but neither they, nor the owners of the ship are entitled to any share of the prize, because the mariners were not employed to make that capture, but, while they were attending to a business of a quite different nature, to the mere navigation of the vessel, fortune threw something else in their way, fortuna aliud dedit, as Tryphonius elegantly argues, in an analogous case.* For the same reason, in the case of a labourer, who, digging the ground, had found a treasure, I gave it as my opinion, that he was entitled to it. The condition of the labourer in that, and, for the same reason, of the mariner in the present case, does not extend farther than the business for which they were hired. Whatever is out of it, that is to say, whatever is * ff. de Adquir. Rer. Dom. I. 63. § 3. † Obs. Jur. Rom. 1. 2. c. 4. foreign to the subject of their contract, they are alone to suffer or enjoy, whether it be profit or loss. This case clearly comes within the general doctrine of principal and agent. Now, the agent shall certainly not impute to his principal, that he was robbed by highwaymen, lost his property by shipwreck, or that he or his family being taken sick, he had spent a sum of money which had been put into his hands for a particular purpose; for, such occurrences are more properly to be imputed to accident than to the agency, as Paulus justly observes. Such losses as these follow the person of the agent; while on the other hand, it is natural, as Paulus also very correctly says, that "those gains and advantages which happen by occasion of the agency, should follow it." If A has sent B to carry something to C, and B, in the way, has found a sum of money, or has extorted something from a highwayman who attempted to rob him, no one, certainly, whose mind is not very weak, shall think that the money which B has so extorted, belongs to A, although the things which he was sending to C might have been endangered by it. He did not order B to find money, nor to extort any thing from highwaymen, but to carry some articles, which he did carry, and his agency being thus fulfilled, A has nothing more to ask of him. The arguments of the advocates on the subject of the present question are really trifling. The license which the freighters. had obtained from the West-India company could not avail them to make prizes, but only to navigate in the American seas. Nor are we to cavil about the words of the resolution of the mariners above mentioned, when they are susceptible of so many different interpretations. I think that they had no other object in view than to retain the prize with them, to whomsoever it might belong, whether to the owners, the freighters or themselves, or that the words rather signified, that they meant to divide it into three parts, and to give one to each of the said parties. Or perhaps (saving the decree of the board of directors) they might have believed that the * ff. Mandat. 1. 26. § 6. prize belonged to them alone; as if the vessel was laden with provisions or other necessaries of life, which they themselves were in need of, and thus might be useful to the owners of the ship and goods, by enabling them to prosecute the voyage, or they might have had various other motives of the same kind. And who will dare to suppose, that those mariners weighed and considered so particularly the words of their resolution, and that if the prize did belong to them, they wished to abandon their claim to the whole of it? Nay, if they had even believed that it did not belong to them, but to the owners and freighters, who would not excuse their simple honesty? He, who, thinking, that what is his own property belongs to another, gives it up to him, is not to suffer by it. Let not an error in point of law, be objected to those good mariners, since, as well from the resolution itself as from other circumstances, it appears that they made no final determination, and it is sufficiently clear, that they never had an intention to give up any right to which they might be entitled. It is true, however, that if they had fought more than was necessary for their defence, and the ship or goods had suffered by it, they would have been bound to an indemnity by the terms of their contract. On these principles, a cause was formerly decided by the court of Brussels, which I think, bears a strong analogy to the present case: A person had lent a horse to the commandant of a corps of cavalry, to fight with; the court were of opinion, that the lender of the horse was not entitled to a share of the booty which the officer took with it. I fully approve of the legality of this sentence, though it has been doubted by some, and Zouch refers us to a contrary opinion, given by Petrinus Bellus; there was, however, in that case, much more equity in favour of awarding a part of the booty to the officer, as it was nothing to him, whether the person to whom he lent his horse, should fight or not. And yet, he had no more right to the prize, than one who lends his net to another, has a right to the fish that he takes with it. De Jure Fec. p. 2. § 8. Q. 17. |