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The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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in the faid bill named, for the wrong and injury
done ; and did, by the fentence and decree of this
court,recover againfl themthefumof;^. 12,700:5:0
damages, with cofts of fuit. Whereupon, an ap-
peal was entered to the honourable the high court
of errors and appeals for this commonwealth ; in
the profecution and final ilTue whereof, the faid
Silas Talbot did recover againfl the appellants
the fum of ^, 11,141:5:4; of which fum the li-
libellants in this caufe were compelled, and did
aftually pay, the fum of ^, 4000 : and alfo that
they had expended the further fum of ^, 450, in
defending themfelves againfl the bill of -the faid
Silas Talbot, and in the profecution of their faid
appeal. AVhereupon, they now pray judgment
againfl the faid John Angus, for reparation of the
damage and lofs they have fo fuflained/*

I have found it necelTary to the determination of


[ 154 I

the prcfent queflion, to confider it under the three
following points of view, viz.

Firjl^ How far the caufe now before the court
may be confidered as conne6i:ed with, or determi-
ned by the decree in the cafe of Silas Talbot.

Second^ Under what circumilances owners of
velTels ought to recover againil the captains they
employ for damages fufFered in confequence of
their mifcondu6i:.

Thirds The fpeclfic circumftances of the prefent
cafe, as they , ftand on the teflimony, or what is
called the merits of the caufe.

As to the firfl: point — I can fee no conne6lion
between this caufe, and the cafe of Silas Talbot,
further than this ; that as it originates in the fame
tranfaf^ion, viz. a taking as prize on the high feas^
the jurifdi£lion is thereby determined. In all other
refpecls the two caufes proceed on d liferent prin-
ciples'—The points in view in Talbot's cafe were
-^Y— how far owners of veflels were anfwerable for
torts committed by the captains they employ ? and
whether the taking in queftion was in fa£l fueh a
tort as they ought to be anfwerable for ? The ob-
je£i:s in the prefent cafe are — Under what circum-

C ^55 J

fiances owners may recover agalnfl: their captains,
and whether captain Angus was, or was not, parti-
ceps criminis with the wrong doers in Talbot's

The complexion of the two caufes being thns
manifeftly different, it cannot, with any reafon, be
admitted, that the teftimony or decree, founded
thereupon in the former, fliould be conclufive in
the prefent cafe. The decree, in Talbot's cafe,
was againfl certain perfons, who by fhipulations,
had made themfelves refponfible for the iffuc of
that fuit on general principles. It is not inconfif-
tent with the record of that decree, for captain
Angus, who was not one of thofe flipulants, and
who was no party in that fuit, to come in now and
make his defence, when perfonally called upon to
anfwer, and to fliew that he was not one of the
wrong doers, againji whom that decree was ob-

On the fecond point, viz. — Under what circum-
flances owners of veffels ouQ^ht to recover asfainfl
the captains they employ, for damages fuffered in
confequence of their mifcondu£l ? It is confonant
with reafon and authority, that captains are not
anfwerable for loffes arifmg from unavoidable ac-

[ 156 1

cidents, mere errors of judgment, or failure of
fuccefs, after having exercifed all reafonable dili-
gence and difcretion. It would be very difficult,
and at prefent unnecelTary to delineate the particu-
lar circumdances and kinds of mifcondu£^5 which
fiiould render a captain refponfible to his owners.
Ever)^ cafe that occurs mud be judged of, by its
own peculiar circumflances. The prefent libel
ftates, '' That John Angiis did, without any au-
thority from his owners, combine with certain
malefaftors, and without probable caufe of cap-
ture, take the brig Betfey, then in the polTeiTion
of Silas Talbot, as prize and booty of war : and
that he did this, not ignorantly, but well knowing
the circumflances, and with a view to injure the
faid Silas Talbot, and alfo his owners, as much as
in him lay." If thefe charges are fupported by
tedimony now before the court, there can be no
doubt, but that he ought to be anfwerable to his
ov/ners for whatever they have fullered by his

-And this leads to the third point, viz. — The
confideration of the fpecific circumftances of the
cafe, as exhibited by the teflimony, or the merits
of the caufe.


C ^S7 ]

The fa^ts, fo far as they refpe^l captain Angus,
appear to be in fubftance thefe :

' Angus failed on a trading voyage from Phila-
delphia to TenerliFe, in the armed letter of marqne
brig, Hibernia, in company with the brigs Patty
and Achilles^ alfo letters of marque, and bound to
feme ports in Europe, under the commands of
captains Prole and Thompfon. Angus had receiv-
ed v/ritten inftru^lions from his ov/ners (the pre-
fent libellants) to keep company with the two brigs
as long as he fliould think it prudent, and had their
approbation to cruife with them on the coaft for
two or three weeks, if they fliould fo agree. Be-
ing at Reedy Ifland, in the Delaware, a confulta-
tion was held between the three captains, and
Prole was appointed commodore of this little fqua-
dron. Soon after they had got out to fea, they
difcovered a brig and a floop at a diflance. Prole,
as commodore, gave orders to chafe, which was
done. Prole and Thompfon, under Britifh co-
lours, came up with, and took the brig, but the
Hibernia, being a dull failor, was left four or five
miles aftern. When flie came up, captain Angus
enquired what the captured velfel was, and was
informed by Prole, or Thompfon, that flie was
a good prize, bound from Montfcrat to New
York. To which Angus replied, that if the brig
was prize, the floop (then in fight) mud be


r 158 3

fo too : and afkcd why one of their faft failing
brigs did not purfue her ? To which it was an*
fwered, that they did not choofe to leave the
prize till flic was well manned ; but ordered him to
chafe the floop, which he accordingly did, for two
or three leagues ; but finding he could not come
up with her, he hawled his wind, and beat up
again for the other brigs, but did not reach them
till dark. Prole then fent a boat to Angus, de-
manding two of his hands to man the prize, for-
warding, at the fame time, a paper for Angus to
fign, which appears to have been orders drawn up
by Prole, and figned by him and Thompfon, for
the prize-maiter, to whofe charge they had com-
mitted the captured brig. Angus haftily figned
this paper on the binnacle, and fent the two men
required. The wind then blowing frefli, the fea
running high, and night coming on, the four brigs
feparated and faw each other no more.

From this detail, it is manifeft, that Angus had
no opportunity of acquiring information of thofc
circumftances which were the ground of condemna-
tion aoainfl: the refpondents in the fuit of Si-
las Talbot. The aiiurance of Prole, the com-
modore, that the Betfey was good prize, was, in
the then fituation of affairs, fufHcient to convince
Angus that there was at lead: probable caufc of
capture. And if the enterprize had been a fuc-


[ 159 ]

cefsful one, which he had no reafon to doubt. An-:
gus would not have been juftifiable in neglecting
any thing on his part to fecure to his owners a
fliare of the Betfey taken, or to add thereto, by
endeavouring to take the iloop alfo.

The onlv circumftance which hath a dire^ ten-
dency to criminate captain Angus, is his figning
the orders to the prize-mafter put on board the
Betfey, directing to " keep to the fouthward, for
fear of falling in with the Argo :" There are two
ways in which this may very naturally be account-
ed for, neither of which are in the lead contra*-
dialed by the teftimony, viz, that in the hurry of
the tranfaClion, the boat waiting along fide, the fea
rough, and night coming on, he figned thefe or-
ders without reading them, having confidence in
thofe who had drawn them up and figned before
him ; or, according to his lad conclufion, " if the
brig was prize, the floop mud be fo too," he dill
conceived the Argo to be an enemy, and therefore
to be avoided by the prize-mader.

But, without having recourfc to furmifes, I am
clearly of opinion that the libel is not fupported by
the tedimony ; that is, there is not fudicient proof
that the refpondent " did wilfully and knowing-
ly, and without probable caufe of capture, join
I with

r i6o J

with others, in taking from Silas Talbot his prize
and booty of war."

It is manifeft, indeed, from the records of the
court of appeals, that the libellants have fuffered
confiderable damage in confequence of this tranf-
aftion at fea. But, as they had embarked them-
felves in a fuit with real wrong-doers, and fuffer-
ed judgment to go againit them on general princi-
ples, without attempting any feparate defence,
this is no reafon why Angus fliould not bring for-
ward fuch fpecific tellimony with regard to his own
condu£l as may exculpate him from the charges
laid in the prefent libel.

Some flrefs has been laid on a paiTage in the
depofition of W D , exhibited in Tal-
bot's caufe, tending to prove that Angus was not
fo ignorant of the circumftances refpe6ling the Bet-
fey and Argo, as he pretends. The paffage is in
thefe words : " Afterwards, captains Prole, An-
gus, and Thompfon, in the prefence of this de-
ponent, confulted what they fhould do with the
brig Betfey, and being of opinion," Sec, What-
ever weight this depofition might have had in Tal-
bot's caufe, it is inadmifiible in the prefent ; but I
would obferve that this circumilance is not fup-
ported by any other tedimony on the records of


r »6i 1

•this court : on tlie contrary, from the general hif-.
tory of the tranfaflion, there feems to have been
no period of time in which Angus could have left
ihis veffel, or the other captains have been on board
-the Hibernia to hold this confultation ; W — — -«
D mud therefore have been miftaken. In-
deed this is not the only circumllance in which he
is fmgular. For jud before, he fays, " The brigs
Achilles and Hibernia endeavoured to fpeak her
(meaning the Argo) but could not come up with
her. And, upon the faid Churche's faying, that cap-
tain Talbot was not a man that would run from
one of them if they would not both chafe, the brig
Achilles then chafed alone."

Now, the whole current of teftimony agrees in
this, that it was the Hibernia and not the Achilles
that chafed the Argo. And as I remember, in
fome ftage of Talbot's fuit, it was urged as an ag-
gravating circumftance againfl the owners of the
Hibernia, that their captain was employed in driv-
ing off the Argo, whilft her confederates were
plundering her prize.

These obfervations on W » D <'s depo-

fition cannot direftly affe£t the prefent queilion,

becaufe that depofition is not an exhibit in this

caufe \ but I mention them, becaufe if I could find

Vol. 111. L any

[ 162 1

any fubftantial ground that Angus Vv^as indeed />^7r-
iiceps criminis with Prole and Thompfon, or that
be knew, or had any opportunity of knowing, the
circumdances which fliould have prohibited them
from making that unfortunate capture, I fhould
not be fo clear as I now am in adjudging

That the bill in this caufe be difmiffed, and that
the libellants pay the cods of fuit.

THE libellants ; appealed and after long argu-
ment, the court adjudged in June 1785, that John
Angus fliould pay to the appellants, ;r.948: 15: 10,
with interefl thereon, from the 2 2d day of Janua-
ry 1785.


r i!53 J



HIS is a fuit brought on a bottomry bondj
given by John Walfli to the Hbellants at Oftend,
whereby he hypothecates the fhip Emperor, of
which he was then the captain, for 4500 florins,
equal to ;r.409:i:9 fterling money of Great Bri-
tain, advanced for repairs of the faid {hip. Where-
upon James Oellers, the owner of this fhip, and
others, his afFignees, come in, and anfwer to the
iibel, alledging that this bottomry bond ought not
to take effect: as an hypothecation according to ths
maritime law.

The power veiled in a mafter of a vefTel to im-
pawn his owners fliip or goods for neceffaries fur-
nifhed in a foreign port, is a legal indulgence,
founded on the urgency of the cafe, and is for the
general benefit of commerce,

L 2 Tfiers

r 1^4 1

The^-E are few rules of law more ftri^lly de-
fined than this of hypothecation, and none in
which the reafon and intention of the law are
more manifeft ; it is thus delineated.

" A mailer of a (hip hath no power to take up
money by bottomry, in places where his ov/ner or
owners dwell." " But when a mailer is out of
the country, and where he hath no owners, nor
any goods of theirs, nor of his own, and cannot
find means to take up by exchange, or otherwife,
and that for want of money the voyage might be re-
tarded or overthrown, monies may be taken up up-
on bottomry." — MoIIoy yhook IT. chap. ii.fe6i:. 1 1."
•> — " And the money fo taken up by the mafter,
is done upon great extremity, and that for the
completing of the voyage, when they are in dif-
trefs and want, in fome foreign parts."— Se£l:. i2.

All the books agree in the fpirit of this doc-
trine. The extreme neceiTity appears every where
to be the reafon of the law, and the intention to
favour commerce. Let us now take a view of the
prefent cafe. The leading fa£ts appear from the
teflimony exhibited, to be thefe :

The fhip Emperor^ John Walfli mafler, belong-
ing to James Oellers, of Philadelphia, failed for


I 165 1

Oftend^ with a cargo of tobacco on board : the
iliip ajid cargo being configned by the owner to
Bine, Overman and Company, merchants at Oftend*
During the voyage the velTel was fo much damaged
by a (torm at fea, that the captain was obhged to
put into Dover in England, in diftrefs. From Do-
ver, the captain fent immediate notice o£ his fitua-
tion to the confignees at Oilend, and they fpeedi-
ty furnifhed him with a credit on London, by which
he raifed money fufficient to refit the iliip. After
this he failed from Dover, and arrived at Oilcnd,
where the confignees took charge of the fhip and

Before the veffcl arrived at Oftend, Bine, 0-
'uerman, and Co, had accepted bills to a confidera-
ble amount, drawn upon them by Oellers, on the
credit of this confignment. Upon clofmg all ac-
counts. Bine, Overman, and Co. found that Ocl-
lers had not only drawn upon them to the full
amount of the cargo and freight, (" the tobacco
not felling fo well as was expeaed") but that there
remained a confiderable ballance in their favour.
To fecure this ballance, they tell captain Walfh
that he {hall not leave the port, unlefs he will repay
them the monies advanced at Dover for repairs,
or hypothecate the fhip. It was not in captain
Wahli's power to do the one, that is, to repay

L 3 the

[ I6^ 1

the money, and he declined the other propofal for
fome time : but finding expences accumulating,
and that he could not fail without fome accommo-
dation, he at lad confented to hypothecate the fliip.
Bine, Overman, and Co. then recommended him
to Liebart^ Baes^ Durdeyn and Co, telling him that
they would lend money on bottomry; and con-
du6led him to their houfe, where he executed the
bottomry bond now in queflion. But no money
was paid to Walili; for the bills for repairs at Do-
ver had been long fince difcharged by the produce
of the credit on London.

After this, Bine, Overman, and Co. permitted
captain Walfh to fail, and in due time he arrived
at Philadelphia.

During thefe tranfa^tions, Oellers had failed,
and alTigned this fliip to his creditors ; and the
queflion now is — Whether this bottomry bond
fliall operate to the exclufive fecurity of the mer-
chant's at Oflend, againfl all other creditors, as a
genuine hypothecation would do, on the principles
of the maritime law ?

After a careful confideration of the circum-
flances of the cafe, I cannot difcover one real fea-
ture of that rule of law which fliould be the ground


t i67 ]

of the prefent fuit. True it is, that the fliip was
in neceiTity, and fo is evey ihip that wants elTential
repairs. But the owner had credit within reach.
The confignees were not far diftant. The appU-
cation was eafy and certain, and the confignees no
fooner heard of the difaller, but ihey furniihed the
means of rejief. In fa6l, Bine, Overman, and Co.
had the Urongeft inducement to exert themfelves
in getting the fliip repaired at Dover, that fhe
might get round to Oilend ; for they had made
themfelves anfwerable for Oellers's bills upon the
credit of this cargo. It was, therefore, of impor-
tance to them, that the cargo fliould arrive
fafe to their hands; So that inflead of ad-
vancing money to a diflreffed ftranger, they were
only taking care of their own fecurity. This mo-
tive is manifefl by their letter to Walfh at Dover ;
and^ftill further by their fubfequent condu6l : for
after they had difpofed of the cargo, and found a
ballance due from Oellers to them, they infifl that
Wahli fliall not fail, unlefs he will hypothecate the
fliip toLiebart,Baes, Durdeyn, and Co. which fron^
all appearances feems to be the fame thing as hypo-
thecating her to themfelves : for the captain re-
ceived no money from Liebart, Baes, Durdeyn,
and Co. who were not at all interefled in the tranf-
aftion, and whofe names were only made ufe of to


fave appearances. For Bine, Overman, and Co,
well knew, that being confignees, the captain had
no power to hypothecate the vefTel to them. And,
in order to give the bottomry bond the face of a
genuine hypothecation, they felefled from the ge-
neral account, the monies fpent for repairs at Do-
ver, and compelled the captain to hypothecate his
fliip, as for thofe particular charges^ to the libel"
lants, who had not advanced one Ihilling towards

Further, if we look into the accounts, wc
(hall find, that, although this voyage was not a
very fuccefsful one, yet the lliip cleared all charges
accrued after fhe failed from Philadtlphia, even
including the repairs at Dover. But Oellers had
drawn upon Bine, Overman, and Co. on the cre-
dit of the future voyage, long before the fliip fail-
ed from Philadelphia, to raife money to fit her
out ; and it is thefe drafts brought into account
which make a ballance due to the confignees. So
that, indead of an hypothecation made to enable a
fliip to complete her voyage, it was, in fadl:, made
to enable her owners to begin one ; which was
never the objeft of the maritime law in cafes of
hypothecation. Neither was this law ever defign-
ed to give partial advantages in mercantile con-
iic6lions, or fccure the ballance of a running ac-

C 1^9 ]

count between owners and confignees, to the ex-
clufion of other creditors.

The importance of the prefent decifion to the?
commercial character of our country, has been
flrongly urged in favour of the libellants. But I
am not apprehenfive on this account. The queftion
in view is not to be determined by any municipal
law of the country, but by a general law, univer-
fally received and underilood. And I am of opi-
nion, that our national chara^ler would be much
more likely to fuiEsr by an adjudged precedent,
which might open a door for dangerous collufions,
by putting it in the pov/er of captains of vefTels to
faddle their owners with unnecelTary obligations,
or to give an unfair advantage to foreign creditors,
by a fraudulent ufe of that pre-eminent lien which
the law lays on a ihip and goods, properly hypo-

I do not mean to infmuate that there has been
any fraud or collufion in the prefent cafe. It is
enough, that I do not find the claim of the libel-
lants within the fpirit or intention of the maritime
law : and, therefore, I adjudge.

That the bill be difmiffed, and that the libel-
lants pay the cofls of fuit.


[ '7


FROM this decifion there was an appeal to the
high court of errors and appeals. The caufe was
again argued there, but the judgment of the court
of admiraky was confirmed.

The following notes, taken at the time, contain
the fubfrance of the judgment given in the high
court of errors and appeals in the above caufe.

The court obferved, that the power of a mailer
to hypothecate his owner's fliip, was a neceffary,
but fometimes a dangerous power— the court was
unwilling to extend this power farther than the
law ilriftly authorifed — -a genuine hypothecation
ought to be the voluntary acl of the mafter, at the
time when, and in the places where, the monies
were advanced for necelTaries or repairs — -the mo-
ney advanced, ought to be folely on the faith of
the hypothecation, and not on any perfonal credit
— thefe are incontrovertible principles— the pre-
fent cafe not applicable to them — although the
hypothecation was made to Liebart, Baes, Dur-
deyn, and Co. yet it was to fecure monies advanc-
ed by Bine, Overman, and Co, the confignees —
No authority fliewn, and no authority can be
fliewn, becaufe none ought to be, that an hypo-
thecation can be Tuade to a confignee. Great
mifchiefs might arife if captains could hypothecate


i: 171 ]

to confignees ; no Duthority produced to prove
that an hypothecation can be made in any port,
but that in which a velTel firfl arrives after the dif^
trefs and damage fuftained. Bine, Overman, & Co.
did not repair the vefTel on the faith of the hypo-
thecation ; but this hypothecation v/as made to
fecure to config^nees the balance of a runninor

The court is unanimous in confirming- the fen^


tcnce of the admiralty.

TURN BULL, and. others,


1 HE bill in this caufe is filed by certain mer-
chants againft the iliip Enterprize, for the recove-
ries of monies advanced by them to the captain of


r 172 I

the faid fiiip in the port of Philadelphia, to fit her
out for an intended voyage. The oftenfible or
real owners, or fome of them, being at the time
df fuch advancements within the ftate, and known
to the libellants.

And it has been urged In fupport of the hbel,
that every contract of the captain for necelTaries
for a fliip implied an hypothecation, and induces a
lien on the fhip in favour of the creditor, fueable
in the admiralty by the rules of civil law : and the
cafe principally relied upon as authority for this
do£lrine, is cited from Cov/per, p. 6t,6.

The cafe referred to, is a fuit at common laWj
brought by a rope-maker againfl the owners of a
fhip, for ropes furniflied to the captain. The
plaintiiF having charged Harwood (the captain)
and the owners of the ftiip, for the ropes, without
naming, or even knowing who the ov/ners were.

The fact was, that the ov/ncrs, according to
the cuftom of the county of ElTex, in England,
where they probably refided, had leafed the fliip
to Harwood for a term of years on certain condi-
tious — and the quedions were, Whether under
thefe circumftances, Harwood was not both cap-
tain and owner during the term ? And whether the


Original owners ought to be refpenfible for debt^
contrafted on account. of the fhip, whilll in the
poireffion of Harwood under the leafe ?

Lord Mansfield was of opinion, that nei-
ther the leafe, nor the ignorance of the creditor
as to the names or perfons of the owners, could
exonerate them. And to fliew that the owners
are bound, he fays. — " Suppofe the ihip had been
impounded in the admiralty, and that had hap-
pened at the end of the term, the owners could
not have had their fhip without paying the debt
for which flie had been impounded."

But this cafe is brought into view chielly„ be-

caufe Lord Mansfield in giving his opinion, ob-

ferves, that the creditor had three fecurities for

•his debt, viz. the perfon of the captain with whom

he contradled xh.^ fpec'ijic Jhip^ and the owners.

I r fliould be remembered, however, that this
"was a fuit at common law *, that the owners, the
Ihip, the captain, the creditor, and the contract,
were all within the realm. And there can be no
doubt but that the creditor might have his action
at lavv/", either againft the perfons of the contrac-
' tors, or might attach their property, the ihip, for
his debt.


I 174 1

But this cafe has no reference whatever to th^
the maritime or civil law. The dodlrine of hypo^
thecation is never once mentioned, nor is the con-
lra£l of the captain at all placed upon that ground.
The principle objecl was to determine whethcf

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Online LibraryFrancis HopkinsonThe Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) → online text (page 8 of 17)