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as applicable to velTels under convoy as to any o-
thers. Whenever two veiTels of the fame nation
are in company, they are under reciprocal protec-
tion, and mutually bound to affifl each other : but
when a vefTel of fuperior force fails out of her in-
tended courfe, or is purpofely fent for the protecti-
on of another, the owners of the latter Ihould make


r 88 ]

recompencc for the fervice ; but this will not ex-
clude the protefted vefTel from thofe rights which
her force, fmall as it may be, may entitle her to,
and which the general rule of law affigns without


That the Triilram Shandy be condemned as
lawful prize to the captors ; and that the claimants
have a ihare of the faid prize, in proportion to the
men and guns on board the Hoop Jane at the time
of the capture.

ROBESON 'verfus the AMELIA.

. X HE brig Amelia failed from Charleflown, then
in the pofleifion of the enemy, as a flag of truce ^ to
the city of Philadelphia. After her arrival fhe be-
gan to unlade fundry goods and merchandizes :
the libellants confidered this as a violation of the


r 89 1

flag, and accordingly libelled agalnft her in the
court of admiralty.


That fhe be condemned as lawful prize.



A Libel for Prize Money.

Xx AVING entered as a landfman on board the
privateer Rifing Sun^ and figned articles for a
cruife of four months : the privateer was fuccefs-
ful ; and the libellant was fent in with one of her
prizes, and foon afterwards fell fick. During the
cruife the Rifing Sun came into port to refit. Be-
ing at Philadelphia, a great part of the crew left


r 9^ I

tier ; whereupon the captain (or owners) publifli-
ed an advertifement, calUng upon the officers,
feamen, and mariners, belonging to the Rifing
Stm, to repair on board by a certain day, in or-
der to complete the cruife. One third of the
crew, however, neglecting to appear, the owners
and officers agreed to break up the cruife, opened
a new rendezvous, and enlifted a crew under a
nev/ fet of articles. The fliip failed on this fecond
cruife, the four months of the firll having not yet
expired^ Soon after her laft failing fhe captured
the Trifliam Shandy, and the Dimfdale, both
which were condemned as prize. It appeared in tef-
timony, that the Trifliam Shandy was taken be-
fore the expiration of the firfl cruife, and the
Dimfdale fome days after. The libellant did not
appear on the day advertifed, neither did he
lign the fecond fet of articles, being fick at the

As this caufe touches a general doflrine, viz.
how far owners are juflifiable in breaking up a
cruife, without the confent of all concerned, it
wears a face of confiderable importance. I have
attended to it in this ^iew, and am of opinion, that
ftiipping articles form a contrail between the ow-
ners on the one part, and the officers and crew
on the other, and are for the period fpecified, in


C 91 ]

^11 force with refpe£l to the contra ci:ing particsv
And this contrail is not made with the officers
and crew as an aggregate body, but with each
mariner individually. Upon this ground, I think
the contradi: cannot be totally diflblved (as hath
been contended) by the will of any majority on
either fide, however great. If a fmgle mariner
withholds his confent, and the cruife is broke up
by the reft of the concerned, and a new cruife
commenced, as in the prefent cafe, this muft be
done, fubjeft to the legal claim of the unconfen-
ting mariner, of wages or prize money that may
accrue during the term of the firft cruife for which
he contra^ed. If it were otherwife, if owners
could for their own convenience, or from an ap-
parent or real neceiTity, break up a cruife, thofc
of the crew who may be languifhing in captivity,
or may be confined on lliore by wounds or ficknefs
incu rred in the fervice of the fliip, or otherwife,
might be excluded from the advantages of a peri-
od of time for which they had engaged to run all
hazards, and of which they may as yet have only
experienced the misfortunes.


That the libellaut have a landfman's fliarc of


C 92 ]

the prize brig, Triftiam Shandy, and that the bill
be dirmiiTed with refpeft to a Ihare of the Dimf-

:£ E %erfu5 the FANNY.

JACOB Miller, and others, had formed a corn-
pad to purchafe a velTel, load her with provi-
fions, naval Hores, &c. and then clear her out
from the port of Philadelphia, as for fome
legal voyage ; but, in fa61:, to take her into
New York, for the fupply of the enemy. The Fan-
ny was purchafed for this purpofe. But, before the
fcheme was ripe for execution, one Hollingfliead,
who v/as to have been failing mafler for the voyage,
divulged the fecret. In confequence of which the
libellant feized the veiTel at the wharf where fhe
had lain previous to the time when Miller purcha-
fed her for the purpofe aforefaid. One Riggens,
who was alfo privy to the plan, confirmed the te-
flimony of Hollingfnead, as to the general fcheme.


[ 93 ]

At the time of the feizure, the brig had taken in
only twenty barrels of Tar, and had not yet lliip-
ped her manners.

The teflimony in this caufe amounts to no
more than a treafonable intent. Had this velTel
received her cargo on board, fhipped her mariners,
and hawled off from the warf, the intent would
then have been fo far carried into execution,
as that the velTel and cargo might have been con-
fifcated, and the parties puniHied under the ordi-
nance of congrefs. As the cafe (lands, the ov/-
ners might have changed their minds as to the ge-
neral defign, or they might have thought fome o-
ther veiTel more fuitable to the purpofe. To
bring the matter properly before this court, the
identical velTel employed in an illegal defign muft
be taken in the fa£l:, for the admiralty cannot con-
fifcate one veffel for the fault of another although
belonging to the fame owners. A velTel cannot
be faid to be taken in purfuit of an illegal voyage
whilfl: ihe remains fad at a wharf, without a cargo
on board, and without mariners.

Let the bill be difmifled.


t 94 ]

'WILLIS ^oerfus the Brig YORK.

r |''T»

X KE qucflion before the court was, Whether'
the right of a deceafed mariner to a fliare of pri-'
zes taken during a cruife, is inheritable or not I
The cafe was : one Joel Willis enlifted on board
a privateer for a certain crujfe : A iliort time be-
fore the determination of the cruife, according to
the articles, he fell fick, and died on board the
privateer. Soon after his death, and within the
the term of the cruife, the prize brig York was
taken. Whereupon Seth Willis, the brother
and adminiHrator of Joel, libelled for a fliare of
the prize.

Tke arguments of council refpe^led the general
principle of law ; but the judge, not willing to
determine the general queftion, dire£led teflimony
to be exhibited on the particular circumflances of
the cafe. This was done, and the caiife fubmitted,
without further argument, to a decifion on the
equity and merits of the cafe.

% Where-

C 95 ]

Whereupon a (liare of the prize was adjudged
to the adminiflrator.


A HE brig Sufannah^ belonging to George
Gibbs, cleared out from the naval oflice in the
port of Rhode Ifland, and failed with a cargo on
board, as for Hifpaniola, but in fa6i: for Turk's
Iflands. Being on her voyage fhe was difcovered,
purfued, and captured by Jofiah Crane, mafler of
the brigantine Two Friends^ belonging to fubje£ls
of the United Netherlands, and furniflied with
letters of marque and reprifal againft the fubjefts
of the king of Great Britain. Holland had not at
this time entered into any treaty with, or acknow-
ledged the independence of, the United States of
America. Captain Crane took out part of the
crew of the Savannah, and put a prize mafter
on board, and ordered her for Philadelphia ; but
the Sufannah was again captured during her voy-

r 96 ]

age to Philadelphia by a Britifh privateer, ta-
ken to New York, and there condemned. The
T%vo Friends arrived at Philadelphia, where Gibbs
the owner of the Sufannah libelled againft her,
and againft captain Crane for reparation of the
lofs and damage fuftained.

In confidering this cafe, two obvious points
prefent, viz.

First. . Hath the brig Sufannah fo offended
by her intended voyage to Turk's Ifiands as to
afford probable caufe of capture and confifcation ?

Secondly. If not, who ought to fatisfy the
owner for the lofs of his veilel and cargo ?

On the firfl point the queftion occurs, whether
Turk's lilands, may, or may not, be confidered as
property under the dominion of Great Britain ?
Whatever might have been the fituation of thefe
ifiands in the years 1778 and 1779, it is evident
that at prefent they are abandoned by every na-
tion, there having been no officer who hath exer-
cifed civil or military powers there under the
authority of any government whatever for at
leafl thefe two years paft. If the Britiili ever had
legal dominion over thefe ifiands, they have a-
2 bandoned

C 97 3

bandoned their right, and releafed the inhabitants
from all allegiance by withdrawing all protection.
So that thofe people may truly be faid to be in
a ftate of nature, unlefs they have formed fome
government of their own. What offence then
can arife from trading with thofe iilands f It is
plain, from the clearances and entries in our
own naval oiEces, that this trade hath not been
deemed unlawful : and it is alfo in evidence,
that American, French, and Spanilh veffels, con-
ftantly go to thefe iilands for fait, and no body
hath heretofore queftioned the legality of this

But is faid, that the variance between the office
clearance and an Invoice found on board, marking
the real deftination of the voyage, affords pro-
bable caufe of capture, and even a fufficient
ground for confifcation. I find, however, that it
is not an unufual praClice for merchants to clear
out as for one legal port, but with a defign of go-
ing to fome other legal port, in order to conceal
the real voyage, for mercantile purpofes. Nor
hath this pra61:ice ever been deemed an offence,
or the papers found on board a veffcl under fuch
circumftances been confidered as double papers,
fuch as (liould induce a condemnation.

Vol. III. G The

r 98 ]

The next queflion is. Who ought to be an-
fwerable for the injury done ? the captain, or his
owners, or both ?

The relation between the owners and mafter
of a veffel hath, to many purpofes, been confide-
red as that of mafler and fervant ; and the law
is clear, that the mafler is bound by whatever
the fervant doth by his order, under his autho-
rity, or in the profecution of his fervice. See ift.
Black. 429. It has been contended, however,
that captain Crane was not in the profecution of
his owners fervice when he made this capture,
the object of the voyage being merely mercan-
tile, and not to take prizes. But as this velTel
was duly commiifioned to take prizes, and the
owners and captain would have fliared the pro-
duce of a legal capture, this diftin^lion cannot be
admitted, but the owners and captain mud be
confidered as jointly anfwerable.

Judgment in favour of the libellants for
£ 1305 fpecie, with cofls.

N. B. An appeal, and the judgment confirmed.


[ 99 J



Zjl Plea to the junfdi^tion of the court was filed
in this caufe : and the queftion was, Whether a
Ship-Wright might fue in the admiralty for his
contract wages for building a (hip or veffel defign-
cd for navigation on the high feas ?

After long argument, the judge gave his opi-
nion as follows.

The authorities which the libellants have ur-
ged in favour of the jurifdi6lion of this court, in
the prefent cafe, are Cro. Ch. 296. and ifl Rol-
le 533. All the other authorities adduced having
reference to thofe, except one in i Stra. 707.

In the firft edition of Cro. cha. page 296, we
find refohitions upon cafes of admiralty jurifdiftion

G 2 fubfcribed

r 100 3

fubfcribed by all the judges of both benches, in
April, 1632. Wherein, amongfl other things,
it is refolved, that a (hip-wright may fue in the
admiralty, provided his fuit be againil the (hip.
RoIIe, as a faithful abridger, gives the law as it
then ftood under the authority of thefe refoluti-
ons. In article 19, he mentions the doflrine re-
fpefting fhip-vi^rights, and cites the cafe of Taf^
ker and Gale. And in article 21, he gives the
law refpe^ing charter parties, adding thefe re-
markable words : " As it was declared by the
court to have been lately refolved by all the
judges of England." So that thofe refolU-
tions feem to be the only foundation upon which
thefe do£l:rines reft- And it is very obfervable,
that although Croke records the refolutions as
they were fubfcribed in Hillary term, the eighth
of Charles, yet he does not report the cafe of
Tafier verfus Gale^ although adjudged (according
to Rolle) in the ninth of Charles, which mud
have been but a few months after. Neither hath
any other reporter of that period noticed this
cafe. From which it feems probable, that thofe
refolutions, and the judgment in the cafe of Taf-
ker verfus Gale, were not admitted as good law c-
ven in that day.


r loi ]

But it is further obfervable, that when Sir
Harbottle Grime/ione pubhflied Croke's reports in
the year 1657, he prefixed, even to this firil e-
dition, a declaration under the title Mantijfa j
that the refolutions of the judges in Feb. 1632,
were not of authority : and for this reafon (ac-
cording to Comyns) thofe refolutions were totally
omitted in the fubfequent editions of that work.
Since that time no inflance can be found in the
books, where either thefe refolutions, or the cafe
of Tallcer v^rfus Gale adjudged thereupon, have
been referred to either by the court, or in the
pleadings in any adjudged cafe, except in the cafe
of Wooward verfus Bonithan, Sir. T. Raymond.
p. 3 : and there the court declared, that thofe
refolutions had been denied by feveral judges,
and renounced by even fome of thofe who had
fubfcribed them. And of this, Danvcrs alfo takes
particular notice, p. 271. Therefore' the autho-
rity of thefe refolutions feems to have been abolifh-
ed by general confent.

But another cafe has been referred to as au-
thority in point, viz. ifl Stra. 707. The report
is very iliort, and in thefe words : " On a motion
" for a prohibition, it was held, that a carpenter
*' may fue for wages in the admiralty.^' This
report, however, is too flight and folitary to au-

G 3 thorife

' f 102 1

thorlfe a decifion contrary to general eflablillied
rules. The word carpenter doth not precifely in-
dicate a iliip-wright, but may be applicable to a
mariner on board a velTel ; and as the cafes refer-
red to in the margin of this report, refpcfting the
officers of a fhip who fued in the admiralty as ma-
riners, the probability is, that this alfo was an
officer called the jhip* s-carpenter : A doubt having
arifen whether the fubordinate officers of a fhip,
as well as the mafler, were not prohibited from

fuing in the admiralty for wages.


If the refolutions of the judges in 1632, and
the decifion in the cafe of Tall^ier verfus Gale,
were admitted as law, and if the carpenter men-
tioned in ifl Stra. 707, was the fhip-wright or
builder, how is it poffible that the judges fo
lately as the 1765, fhould declare in court, that no
inftance could be found where both the contract
and fervice were to be done on land, within the
body of a country, that the common law courts
ever permitted the admiralty to have jurifdiflion ?
I refer to 2d Wil/on, p. 265 : and this opinion
"was given in the cafe of a pilot fuing for fervices
done, indeed within the body of a county, but
in a cafe of a much ftronger maritime com-
plexion than the prefent.

I There

I 103 J

There are feveral exceptions to the general
rules of law refpci^ting admiralty jurifdiflion, as
afcertained by the flatutes: fuch as fuits for mari-
ners wages, and on hypothecations made by the
mafter in foreign parts, &c. &c. which have been fo
often contelled, and fo often allowed, for good
and weighty reafons, that they have become con-
firmed law, and it would be in vain now to oppofe
the general rule to the general pra6tice. But
this does not appear to the cafe with refpedi: to
fhip-wrights ; neither are the fame reafons appli-
capable to them. Their contraft is made with
perfons whom they know, or ought to know;
their fervices are all executed within the body of
thd'county, and moflly on dry land above high-
water mark ; their w^ages have no reference to
a voyage performed, or to be performed -, the
fliip-wrights have no interefl or concern what-
ever in the veiTel after llie is on float, and the
merchant hath paid for her ; and laftiy, the prac-
tice of former times doth not jullify the admiral-
ty's taking cognizance of their fuits.

Le 1 the bill be difmiiTed, as not being within
the jurifdiflion of the court.


r ^^4 3



The south CAROLINA.

On a plea to the jurifdi^tion, it was adjudged,
that mariners enlifling on board a fhip of war, or
veffel belonging to a fovereign independent flate^
cannot libel againil a fhip for wages due.



The experiment.

JL HE fchooner Experiment belonging to fubje£ls
of the United States \ was on her voyage from


[ i^5 3

James river, la Virginia, to Bultimore, in Mary-
land, with a cargo of rum and fait, and a few bar-
rels of tar ; the ciirgo being alfo the property of
fubjecls of the United States. She was taken in
Chefapeak bay by fome of the enemy's boats,
called refugee boats, and fent under the command
of a prize-mafter to New York. In her way to
New York, die was re-captured by the libellant,
and fent into this port, having been fevcral days in
the pofTeffion of the enemy.

On the trial, one of the owners of the cargo
appeared, and urged the tenor of an ordinance of
congrefs, palTed the 26th of February, 1782, in
his favour, refpe6ting the veflels and cargoes of
fubje^ls of the United States, going from one port
to another, and taken v/ithin any arm of the fea.
Sec, laden with the produce of the country, and
afterwards retaken by a fellov/ fubjcift : ordaining,
that the fame fliall be reflored to the firll owner,
on payment of reafonable falvage, not exceeding
one fourth of the value, without any regard to
the time of poffeiTion by the enemy. But as it
appeared, that the cargo was foreign produce (ex-
cept only two barrels of tar) the party withdrew
his claim.


L io6 ]

And fo the veiTel and cargo were condemned
as prize to the Hbellant.


The lady MARGARET,

Jr AT RICK Mahoon, and twenty-four others,
filed a fupplimental Hbel againfl the fliip Lady
Margaret, for that they having duly enhfted for a
cruife, on board the privateer Holker, and being
ready and willing to perform their duty, were for-
cibly turned on fhore by Roger Kean, the cap-
tain, and prohibited from going the cruife, in
which the prize fliip Lady Margaret was taken.
Whereupon procefs ilTued againfl: captain Kean,
et contra omnes^ to anfwer to the faid libel.

These are the fame libellants who recovered
againfl the Glocefler, two years fmce, on a like


plea. (Vide p. ^^,) In the cafe of the Glocef-
ter, the council for the refpondent did not minute-
ly inveftigate the fafts : but admitting the teftimo-
ny, as produced on the part of the libellants, re-
fpe6i:ing the force ufed, reded the defence folely
on points of law. The fa£ls were now more flrictly
fcrutinized, and new teftimony adduced, amongfl
which the refpondent prefented the depofition of
Silas Fofler, one of the Holker's crew : but it
was objefled, that Fofter was an intereded wit-
nefs, and that his tedimony ought not to be ad-
mitted. After full argument thereupon, the judge
decided this point, as follows :

The quedion under confideration, refpefls the
competency of a witnefs produced by the refpon-
dent in this caufe. On the one fide, a p-eneral
principle of law hath been ui-ged, viz. that a per-
fon intereded in the event or a caufe, diall not be
allowed to give tedimony in that caufe : and, on
the other, an exception to this general rule, viz.
that if no further or better evidence can be had,
an intereded party may -arid ougiit to be heard,
from the necefdty of the cafe, his intered only
adefting his credibility, not his competency. And
the danger of an unhappy precedent in the rejec-
tion or adraidion of the witnefs now odered, hath
been fudiciently enlarged upon on both fides. But

I can-

[ io8 J

I cannot fee the danger apprehended, fmcc the
determination in the prefent cafe, can be no rule
for any other, unlefs the circumftanccs of both
fliould be precifely fnnilar ; becaufe, the court will
always take Into confideration the degree and na-
ture of the intered, that iliould exclude a witnefs
under the general rule, and the reality of the ne-
cellity to admit him under the exception, and alfo
judge of the credibility, according to circumftan-
ces» To this purpofe I refer to laws of nifiprius^
p. 286. " Scroggs, ch. juf. faid, that it ought
*' not to be a general rule, that members of corpo-
" rations fnall be admitted or denied to be witnefTes,
^'' in cafes for or againfl their corporations : but
" every cafe {lands upon its own particular cir-.
" cumilances, viz. whether the intered be fo con-
*' fidereible as by prefumption to produce partialis
^' ty or not. And this exception has of late years
" been much extended. In the cafe of the King
*' verfus Bi^ay, lord chief juftice Hardwicke * faid,
*' that unlefs the ohjeclions appeared to him to
" carry a flrong danger of perjury, and fome ap-
" parent advantage m/ight accrue to the witnefs,.
^^ he was inclined to let it go to his credit only, in
*^ order to let in a proper light to the cafe, vdiich
*^ would otherwife be ihut cut.'*

* Hardwicke, p, 360,

[ ^^9 ]

In order, therefore, to decide on the competcii-
tj of the prefent witnefs, it will be neceffary tn>
take a view of the circumftances of the cafe, fo far
as they refpe£l: him, or his intereil, in the caufc.

The (liip Lady Margaret, was, by a decree of
ihis court, condemned as prize to the captors.
The marfnal, after making fale of the property,
advertifed as ufual for all perfons who had any
claim thereupon, to appear in perfon, or by agent,
and receive their refpeftive (hares. Foflcr'^s agent
accordingly appeared, and received his lliare,
which was afterwards paid over to him, as appears
by his receipt to the faid agent. The prefent li-
bellants iffued no prohibition to the marfhal, to
{lay his proceedings, nor intimated any defign of
claiming lliares in this prize. The marlhal, there-
fore, went on and completed his bufinefs, with
refpecl to this veffel and her cargo, and filed his
accounts and returns, dated Feb. 1781, in the re-
gider's office ; by which accounts it appears, that
full diPcribution had been made. The prefent li-
bellants having recovered in the cafe of the brig
Glocefter, a pi ize taken by the fame privateer, and
in the fame cruife in which the Lady Margaret
was captured, now claim lliares in the Lady Mar-
garet alfo, upon the principles of the former deci-
Hon in their favour. The captain qv the privateer


C no ]

hath filed his anfwer in oppofition to this claim,
and offers Fojier as witnefs in his behalf : but it is
alledged that Fojier may have an interefl in the
event of this caufe, upon a fuggeftion, that al-
though the marllial hath in his returns, fully ba-
lanced his accounts refpe^ting the Lady Margaret,
yet he hath done it wrongfully, by charging ex-
travagant and illegal commiiTions, as appears upon
the very face of his returns. So that there is in
fad a part of that prize yet in his hands, a diflribu-
tive fliare of which Fojier will be entitled to, if the
libcllants fliould fail in their fuit, he being one of
the captors of that prize.

It feems then, that Fojier'*'^ interefl: depends
upon two contingencies — Firfl:, that the libellants
ihall fail in their prcfent claim : and, fecondly, that
the marilial (liall not be able to jufl:ify the com-
miiTions he hath charged.

If this interefl: depended upon the firfl: contin-
gency only, it might be deemed too clofely con-
nected with the event of this caufe, to admit him

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