The MARY.
Supreme Court of United States.
February 12, 1817. February 14, 1817.*126 Mr. Jones, for the appellants.
Mr. Webster, contra.
*130 Mr. Justice JOHNSON delivered the opinion of the court.
We are of opinion that the facts stated, in this appeal, make a clear case of tortious dispossession on the part of the Paul Jones. The privateer Cadet had, with great gallantry, captured the Mary, and been in possession of her part of a night and day. The prize was close in upon the American coast, and making for a port which was open before her. It was not until the superior sailing of the Paul Jones made it manifest that the prize must be cut off from this port, and until she had been repeatedly fired upon, that the prize crew abandoned her. There exists not a pretext in the case that this abandonment was voluntary, or would have taken place but for the hostile approach of the Paul Jones. Whether the vis major acted upon the force or the fears of the prize crew is immaterial, since actual dispossession ensued.
But it is argued that the Paul Jones showed American colours; the Mary ought not therefore to have feared her: the Mary showed no colours, she, therefore, invited pursuit; and, finally, that the Paul Jones found her in the actual possession of her *131 original master, and, therefore, could not have done otherwise than detain her.
We think otherwise. It was more probable that an enemy would show false than true colours. The circumstance of the Mary standing in for a friendly shore, was less equivocal evidence of her character than the exhibition of colours; and, after boarding the Mary, and learning that she was a prize to the Cadet, it was the duty of the captor to have repaired the injury he had done, and, either by making signals, sending a boat on shore, or a message by the boat that did come off, to have recalled the prize crew of the Cadet. But, instead of this, she instantly mans the prize, bears away from the harbour, which was close under their lee, and, by carrying English colours until out of sight, completes the conviction of the prize crew that the re-capture was by an enemy.
We are of opinion that the decision of the circuit and district courts should be reversed; that the prize should be adjudged to the Cadet; and the case remanded for the assessment of reasonable damages in favour of the Cadet. But, considering that the prize arrived in safety, and probably in a more secure harbour than that for which she was sailing, when seized by the Paul Jones, (although it is certainly a case for damages,) we are of opinion the damages should be moderate.
Sentence reversed.[a]
NOTES
[a] Mr. Justice STORY did not sit in this cause.