M`DONOUGH,
versus
DANNERY, and the Ship MARY FORD.
Supreme Court of United States.
*190 The cause was argued on the 4th and 5th of February, 1796, by E. Tilgham, for the plaintiff in error, and by Ingerjoll & Duponceau in error.
For the Plaintiff in error.
After argument, LOWEL, Judge of the District, delivered the opinion of the court, first recapitulating the facts above stated.
"BY THE COURT. The Libellants have prayed, that the whole of the ship and cargo should be decreed to their use. There have been times in the history of nations, in which vessel and goods, left by necessity on the high seas, have been decreed the property of the finders; and where wrecks on the shore have been with-held from the original proprietors, by the sovereigns of the country, or some great man, on whose lands they have happened to be cast: But in very early times, they have, in both cases, been considered as the property of the original owner. Several of the Roman Emperors made their edicts and decrees, for the preservation of such property, and the restoration of it; and for a long time, the law of nations has been settled on principles consonant to justice and humanity, in favour of the unfortunate proprietors; and the persons who have found and saved the property, have been compensated by such part thereof, or such pecuniary satisfaction, as the laws of particular States have specially provided, or, in want of such provision, (as the writers on the law of nations agree) by such reward as in the opinion of those who, by the municipal laws of the country, are to judge, is equitable and right. In our country, no special rule being established, this court is to determine what, in such case, is equitable and right. The rule in estimation, which ought, in my opinion, to be adopted, would be to give, is possible, to ascertain it, such compensation or reward as would be sufficient inducement to engage reasonable persons, to encounter the peril and expence of the undertaking; what this may be, must, in almost every case, depend on the estimation which the Judge, who is to decide, may make of the expense, the labour, the peril, and the *191 actual suffering of those, by whose exertions the property is saved. And, as several of the most important of these are really mental, to which no measure of weight or capacity can be actually applied, it is probable, different persons would vary considerably in their estimation of them. It may, therefore, be a thing to be wished, that every nation would make, at least, some general rules for determining such cases: but as there are none established in this country, I am bound to exercise my own judgment, in determining what is a just and equitable compensation.
"Admiralty courts having the thing saved under their controul, may either adjudge a portion of such thing to the persons who have saved it, or a sum of money to be paid by the proprietor, or from the produce of the thing sold. And in either case, the same principle ought to operate, and such parts of the thing saved, or sum of money, be decreed to those who save it, as may fully compensate them, and will encourage others to like efforts. In this case, the Mary Ford, when found, was at the mercy of the seas, her fails and rigging partly taken away or lost; very little or no provisions on board her; the George was bound on a foreign voyage, with a valuable cargo, and it does not appear that she had any supernumerary hands; those who undertook to carry her into port, found her greatly disabled and difficult to manage; the risque of their lives must have been considerable, and their exertions great. I think few cases will happen, when the compensation ought to be higher.
"Under all circumstances, therefore, I am of opinion, that one third part of the gross proceeds of the value, ought to be paid to the owners and crew of the ship George, for salvage of the said ship Mary Ford and her cargo, and in full compensation of their services, peril and expenses, in the following proportions which have been since settled by three merchants, named by them, and appointed by the court, viz. to the owners of the George, nine thousand five hundred and eighty dollars, and twenty-eight cents, being two third parts of the sum decreed for the owners of the George and her crew, after deducting three hundred and seventy dollars and forty-two cents, for the owners, for expenses incurred and paid by them, on the joint account of the owners and the crew and the remaining one third, viz. four thousand seven hundred and ninety dollars and fourteen cents, to the captain and crew of the George, in the following proportions, viz. to the Captain, eleven hundred and fifty-six dollars and twenty cents Lemuel Foster, eight hundred and twenty-five dollars and ninety cents John Classin, four hundred and ninety-five dollars and fifty-four cents five seamen, three hundred and thirty dollars and thirty-six cents each one other, two hundred and eighty-nine dollars and seven cents the cook, two hundred and forty-seven dollars and seventy-seven *192 cents and the boy, one hundred and twenty-three dollars and eighty-six cents.
"The next question is, to whom shall the residue be decreed? To settle this question, passages have been read from many books written on the law of nations, and others in which the municipal regulations, and decisions of several nations have been reported or commented on; and which have been supposed to be applicable to this case. The gentlemen who have been of counsel for the parties, have ingeniously supported their respective claims; I have, I trust, carefully perused their authorities and attended to their arguments; very few of their authorities appear to me to apply; their arguments have been pertinent. I lay out of the case, the whole doctrine of postliminy, as applied to re-captures, which I consider as depending on the municipal regulations of States, which every sovereign has a right to make, as far, at least, as their own citizens only, are concerned, in such manner as may appear to them best. Under this head, though blended by some writers with the law of nations, are to be placed the regulations made, variously however, by the European nations, and the late Congress of the United States, by which the property is divested from the former owners, by capture, after twenty four hours possession by the enemy; and all other arbitrary rules, made to settle questions of like nature; also, all questions about total and partial losses on policies of insurance.
"I embrace as found doctrine, the principle, that neutral nations ought not to decide respecting the lawfulness or unlawfulness of capture, if it appears that the captor, and the nation from whom the property is taken, are at war with each other, and the captors or their vendees, are in possession of the property, save where the territorial rights of the neutral, or the rights of their citizens, are involved in the question; and that neutrals are always to take the existing state of things as right; so that if either of the powers at war, or those to whom they have transferred it, are in possession of a thing taken from their enemy in war, neutral powers are to suppose them lawfully possessed, and ought not to enquire how long, or under what circumstances, they have possessed them. To interfere and decide in such cases, must necessarily imply a partiality contrary to the idea of neutrality; for, they must either give greater firmness to the capture by deciding it to be lawful, or weaken and render it less secure, by determining it to be unlawful. Neither are neutral powers to give aid to either party, by conducting their prizes for them, when they are too weak to protect and conduct them.
"These principles, I think, will serve as a guide to a decision in this case. Neither of the belligerent powers was in possession *193 of this property when found; the British claimants say, it has been their's; this is admitted by the French claimants; and we have evidence of this fact by the construction of the ship which is in our fight, by the cargo on board and divers ships papers which were found with her. The French claimants say, we took her in open war, we firmly possessed her, and she ought to be restored to us. The reply in behalf of the British claimants is, you did not complete your capture; you did not firmly possess her; you were too weak, consistent with other views you held more important, to retain her. Is it necessary that we should decide these questions between them? Shall we try the legality of the capture, and decide the firmness of the possession? Will it not be to aid, to make the capture and possession firm and legal, which is said to be incomplete? The French claimants say, we were under apprehension of weakening our force and so left her from necessity. The vessel had been British, of this, there is no question: did she by capture and firm possession, according to the law of nations, become French? Of this there is at least a doubt. On considering the whole matter, I do adjudge, order, and decree, that one third part of the money, arising from the sales of the ship Mary Ford and her cargo, be paid to the persons who saved them, in the proportions before mentioned. And that the duties and all other costs and charges be first deducted from the other two third parts, and the residue remain in Court for the use of the British owners of said ship and cargo, or such other persons, who may derive right thereto from them, when the same shall be ascertained in Court."
From the decree of the District Judge, so far only as it respects the British owners, the French Consul appealed, and the appeal being argued before the Circuit Court, the following decree was there pronounced, (Judge LOWELL declining however to give any opinion:)
"CUSHING, Justice.
The court having fully heard the parties on the appeal in this case, by their counsel, it appears that the said ship Mary Ford and her cargo, being the property of some British subjects, were, on or about the 28th day of September, A.D. 1794, captured on the high seas, by a French squadron of ships, under the command of Commodore Vil Maudarine, and were taken into actual and quiet possession of said fleet, and so held for above twenty-four hours, and were then left on the high seas, without any hands aboard, after some unsuccessful attempts, by his order, to burn her, which was in consequence of many of the people of his squadron being sick, and incapable of doing duty, and from an apprehension of weakening his force in parting with any of his people, to keep on board and to conduct the said ship Mary Ford.
*194 "That the said ship George, met with the said ship Mary Ford, and brought her and her cargo into the harbour of Boston, as set forth in the libel; not with intent to aid either party, in the war subsisting between the French Republic and the British nation, but to save the property from absolute loss, or in expectation of proper compensation for the trouble. On which case the operation of the law of nations appears to the court to be, that by the said capture, the property became immediately the captor's. The questions about firm possession, appearing to relate chiefly, if not only, to cases of possession or recapture, or to that of a neutral vendee; things which 'tis apprehended have no place in this cause; and about which the municipal laws and regulations of different countries are very different.
"The property, then, in this case, becoming the captor's immediately by conquest, and the right of war, must so continue, until divested by recapture, or by some legal means or act to that effect. And it is not conceived, that the abandoning the ship from the occasion stated in the evidence, could amount to a recapture, so far as to invest the property in the original owners, or prevent the captors from reclaiming the possession, when opportunity offered at any time previous to a recapture. It is, therefore, considered and decreed BY THE COURT, That the decree made in the District Court, as far only as it decrees, that the said residue of the said two third parts of the money arising from the sales of the said ship Mary Ford and her cargo, remain in court for the use of the British owners of the same ship and cargo, or such other persons who may derive right thereto from them, when the same should be ascertained in court, be, and hereby is, reversed. And it is now further adjudged and decreed BY THIS COURT, That the same residue of the said two-third parts of said money, remain in court for the use of the French Republic, and those concerned in said capture."
From this decree of the Circuit Court, the British Consul appealed; but the appeal being disallowed, the proceedings were removed into the Supreme Court by writ of error; and the Plaintiff assigned for error the decree in favor of the French claimants, and also the disallownace of his appeal; the defendant pleaded in nullo est erratum, and thereupon issue was joined.
*198 BY THE COURT: We are unanimously of opinion, that the District Court had jurisdiction upon the subject of salvage; and that, consequently, they must have a power of determining, to whom the residue of the property ought to be delivered.
In determining the question of property, we think, that immediately on the capture, the captors acquired such a right, as no neutral nation could justly impugn or destroy; and, consequently, we cannot say, that the abandonment of the Mary Ford, under the circumstances of this case, revived and restored the interest of the original British proprietors.
Some doubts have been entertained by the court, whether on the principles of an abandonment by the French possessors, the whole property ought not to have been decreed to the American Libellants, or, at least, a greater portion of it by way of salvage; but as they have not appealed from the decision of the inferior court, we cannot now take notice of their interest in the cause.
Upon the whole, let the decree be affirmed.