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“ 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.”

R

USH, Juʃtice.––As my opinion differs from that of the Court ^{(illegible text)} delivered by THE CHIEF JUSTICE, I will give the reafons of my diffent fomewhat at large.

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 fkill, capacity and integrity, to navigate their veffels. Perhaps, too, the principle in part received its eftablifhment, from an apprehenfion, that the commander of the veffel might not be of fufficient ability to compenfate for the injury committed by him. In all cafes of fpoliation, 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 fpecial. It is either created by the law, or by the parties themfelves. A commander of a veffel,on going to fea without any inftructions, is bound to govern himfelf by law : and, in fuch cafe, if his owners are injured through his mifconduct, he is certainly refponfible again to them. This duty, however, which the law impofes upon the commander of a veffel, may be altered by his owners. They may, for example, order him to take and feize the veffel of a friend , and, in cafe of his compliance, both he and his owners will be refponfible to that friend: but the captain, in this inftance, will not be liable to his employers, becaufe he acted according to inftructions. The rules of refponfibility, therefore, are not reciprocal. The owners may be liable to a perfon injured, and it will not thence follow, that the captain is anfwerable again to his owners. Thefe obfervations are made to refufte a very improper inference, that becaufe a captain has injured a third perfon, for which the owners are liable, that, therefore, the captain is again refponfible to the owners.

The queftion then before the Court is this: Is Angus, (who actually committed a trefpafs on the property of Silas Talbor, in conjunction with captains Prole and Thompʃon, and whofe owners, the prefent libellants, have fince been compelled to make compenfation to Talbot for the trefpafs of Angus,) refponfible to his owners, for the monies paid by them on account of the faid trefpafs, under all the circumftances of the cafe?

This I take to be a fair ftate of the queftion ; and the anfwer muft depend, firʃt upon the evidence, and ʃecondly, upon the law.

I have ftated in the queftion, that Angus committed a trefpafs. This appears evident from his figning the orders, and from his putting two failors on board the Betʃey, to affift in navigating her into port: Unlefs, therefore, it can be fhewn, that Angus was impofed upon by his comrades, Prole and Thompʃon, to act in this manner; and that he was authorifed to place a reafonable confidence in them, the decree of this Court ought to be againft him. In other words, unlefs he can fhew fome authority, either exprefs, or implied, for what he did, he ought to be confidered in the fame 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 Thompʃon, 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 fame month, the tranfaction happened which gave rife to the prefent difpute. William Davis, a paffenger on board the Patty, fays that on the 7th, about ten o'clock, A.M. he heard a firing, and faw two veffels 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 feen, muft have been on the fixth, and not on the feventh. He adds, that he verily believes that the two other brigs heard the firing alfo.

In oppofition to this evidence, let us contraft the teftimony of James Leach, the captain, and John Ruʃʃel the mate, on board the Betʃey. They both fwore, that, at the time the Betʃey was captured, there was no other veffel in fight but the Argo; and they add, that they verily believe, no perfon did fee any other veffel. If they were in fight of Davis, Davis muf alfo have been in fight of them ; and the firm belief of Leach and Ruʃʃel, that no veffel was in fight, is at leaft equal in point of proof, to the firm belief of Davis, that the Hibernia and Achilles faw the engagement. It is remarkable too, that Davis fays, thatAngus has his boat holfted out, in which he is contradicted by all the other witneffes, and appears to be under a great miftake.

But I fhall wave any further obfervations on this point ; for, though it fhould be admitted that Davis, and thofe on board the Patty, heard the firing and faw the chafe, it cannot thence be inferred, that thofe on boar the Hibernia did, efpecially as they fwore that they did not. Inattention, noife and a variety of other caufes, might prevent the people on board one veffel, from feeing or hearing what thofe on board another veffel, did fee and near.

It appears to one, therefore, highly probable, from the evidence before the Court, that Angus did not on the 6th, fee the taking of the Betʃey. His conduct on the 7th, when he came up to the other captains, ftrongly confirms this idea. For no lefs than fix witneffes out of the feven, who were prefent when Angus came up (that is, every witnefs except Davis) exprefsly mention, that Angus enquired what they had got ; and upon being told fhe was a good prize, he replied, if ʃhe is a good prize, fo muft the ʃtoop be: and that he further afked, why one of their laft-failing veffels did not chafe her ; upon which they ordered him to purfue 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 Betʃey about an hour before Angus came up, and that their boats had frequently paffed to and from the Betʃey. They, therefore, had full information; but Angus had not the leaft knowledge, except what he received from their declaration, that fhe was a good prize. If then fhe had been a good prize, of which he had not, at that time, the leaft reafon to doubt, well might he reply, that the other veffel, ​ meaning the Argo, was alfo a good prize. This obfervation, made at this period of the bufinefs, unanfwerably fhews, that he could not have feen the Betʃey and Argo engaged ; for, it is not conceivable that he could be fo grofsly ignorant and ftupid, as to fee two veffels engaged in battle, and, at the fame time, fuppofe them to be both enemies.

With refpect to the idea of the three captains having confulted what to do with the prize, it fcarcely merits confideration. Grove, fays, that he does not know on board which veffel the confultation took place ; in which he is contradicted by Davis who fays it was not on board any particular veffel, but that each captain continued on board his own. The truth, however, is, that there never was any confultation, and, in this, all the other witneffes agree.

The orders from the three captains to the prize mafter, and which are figned by Angus contain a direction to him to get, if poffible, into Delaware, Egg-Harbour, or Cheʃapeak, “ oƒ ƒear oƒ the ʃloop Argo's ƒalling in with you, if you go to New England. ” From thefe expreffions, it has been contended, that Angus was privy to the whole tranfaction; but I do not fee thing in hat point of view. It is poʃʃible that he figned the orders without confidering attentively the meaning of the words, believing, at the fame time, that his comrades, who had made the neceffary enquiries on board the Betʃey, had their reafons for inferting them. It is certain, that he though the Argo an enemy, and as fuch purfued her. He might, therefore, very naturally have fuppofed the other captains had reafon to believe the Argo was bound to New-England ; and that on this account they had inferted thofe words in the orders.

What,then, is the nature and hiftory of the prefent tranfaction? Three veffels, commiffioned as Letters oƒ Marque and Repriʃal, bring about to fail at the fame time from the port of Philadelphia, the owners of the Hibernia, give their captain orders to cruiʃe with the other two. He does fo ; and, the courfe of their united operations, he is deceived and miflead by them in fuch manner, as to concur with them in committing a trefpafs. Had Angusbeen directed, generally, to cruife, the cafe might have been different ; for, then every degree of confidence repofes in his affociates, muft have been at his own rifque. But Angus, being exprefsly authorifed to curife with the two other veffels then failing to the eaft, and act, or event, which was likely to happen on joint cruife by the three veffels, or things, was as much authorifed, as the cruifing itfelf was. Every thing ufually done by perfons jointly cruifing, is implied in the authority to Angus to cruife with the others. The owners themfelves have laid the foundation of the truft, or confidence, that he repofed in Prole and Thompʃon, and fhould therefore alone fuffer. The conduct of Angus feems to be clearly warranted by the rules and maxims that invariably govern the commanders of veffels, when ​

they act in conjunction with others on a cruifing voyage. I perceive neither craʃʃa negligentia, nor lata culpa in his behaviour ; and I take the law to be, as ftated in 4 Burr. 2060, that he is not anfwerable unlefs in thofe two cafes. It is prepofterous to fay, that he ought not to have credited Prole and Thompʃon, when he was ordered to join with them on a cruife. Hard is the doctrine, that a fervant, who apparently acts in the beft manner for the interefts of his mafter, fhould be liable for unavoidable failures, efpecially when they originate, not in himfelf, but in others : It is fufficient to deter all men from accepting a truft.

This authority to cruife with Prole and Thompʃon, certainly means ʃomething : but, if it will not jufify Angus's conduct on this occafion, it is totally infignifcant and void ; and an authority to cruife with others, is an authority to do nothing ; that is, no authority at all.

However difpofed to concur with my Brethren in this caufe, I have not been able to do. Unanimity in Courts of Juftice, though a very defireable object, ought never to be attained at the expence of facrificing 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 poffeffion of the Argo ; and that he acted fuch a part, as he thought would promote the interefts of his owners; my opinion is, that the decree of the lower Court fhould be affirmed: But a majority of this Court entertaining different fentiments, it muft neverthelefs be reverfed.