PURVIANCE v. ANGUS
| Decision Date | 01 September 1786 |
| Citation | 1 U.S. 180 |
| Parties | Purviance et al. v. Angus |
| Court | U.S. Supreme Court |
This was an Appeal from the Court of Admiralty. It was argued on the 7th and 8th of July by Lewis, Wilcocks, and Sergeant for the Appellants; and by Bradford, Ingersol, and Wilson for the Respondent . The Court held the matter for sometime under advisement, in hopes that a compromise would have taken place between the parties; but on the 27th of September THE CHIEF JUSTICE, delivered the following judgment.
M'KEAN, CHIEF JUSTICE.
I will state the case as it appears before the Court from the proceedings, and the evidence, which are not controverted on either side; and shall then taken notice of those points which have been disputed.
The Appellants on the 28th day of August 1779, were owners of a Brigantine, called the Hibernia, then riding at anchor in the port of Philadelphia, and appointed the Respondent master and commander, on a voyage from thence to Oratavia in the island of Teneriffe, having a commission as a Letter of Mart and Reprisal. The owners, in the sailing orders then delivered to the Respondent, (among other things) 'advised him to keep company with the armed vessels bound to the Eastward as far as he should think it prudent; and that should they agree to cruize two or three weeks on the coast, he had their approbation in joining with them.' The Respondent sailed on his intended voyage, and in the river Delaware joined
the Brigantine Achilles, whereof George Thompson was master, and the Patty, whereof John Prole was master, each having a commission of Letter of Mart; and about the 1st of September following they proceeded to sea in company, standing to the Eastward.
On the 6th of September in the forenoon a firing of cannon was heard by people on board the Achilles and Patty, and in the afternoon the Achilles and Patty had altered their course, and, being swifter sailors than the Hibernia, left her at some distance; they then waited for her, and when she came up, she inquired the reason of their altering their course, and was informed, that they had seen two sail and given them chase. At this time the two vessels were not in fight, the Achilles and Patty having waited for the Hibernia until they were lost: They all three then continued the same course until the morning, when at day light two vessels were descried, lying close together, by each of the masters of the three Brigantines, who forthwith made towards them; and the Achilles and Patty, after firing a few guns, took posession of a Brigantine, called the Betsey, which had been a British vessel, bound from Montserrat for New York, ( which places were then possessed by the Enemy) and was captured the day before by the Argo sloop of war, belonging to the United States, Silas Talbot, Esquire, Commander. At this juncture the Hibernia was a few miles astern of the other Brigantines, and when she came up, the Respondent asked, 'what vessel they had brought too?' and was answered, 'a Brig from Montserrat bound for New York; a good prize.' In consequence of some conversation with the Captains of the two other vessels, the Respondent sailed in pursuit of the Argo, then in sight, and did not rejoin them, until near sun set, when a boat came along side from the Patty, and asked for men to assist in navigating the Betsey into some port: The Respondent immediately put two men into the boat, and signed Orders for William M'Neil, who had been appointed Prize-master, which contained these words, 'to get her if possible into Delaware, Egg harbour, or Chesepeak, for fear of the Sloop Argo falling in with you, if you go to New England;' and 'beg of M'Neil to stand to the Southward this night and strive hard for Philadelphia.' These orders are dated 'the 7th September 1779, at sea on board the Brigantine Patty,' and were signed first by John Prole and George Thompson. So far the facts are agreed.
Mr. William Davis, who was a passenger on board the Patty, swears, 'that he verily believes, the firing of cannon on the 6th about ten o'clock in the forenoon, was heard on board the Hibernia, and that the people on board each of the three brigs saw two vessels engaged in fight, for that he heard and saw them distinctly; that the three lay becalmed within hale of each other, that the Argo and Betsey were then about three leagues distant from the three Brigs, and that the firing continued more than an hour.' He further is positive, that the Respondent and Prole and Thompson had a consultation in his presence, about the brig Betsey, whether she was prize
or not; and that they concluded to secure her as a prize, as they disbelieved what had been said by West and Church about her being prize to the Argo, or if she was, yet, as they had been in sight at the time of the capture, they were intitled to a share. These facts are also confirmed by the deposition of John Groves.
On behalf of the Respondent, the depositions of John Brice, first Mate of the Hibernia, John Magill, George Stout, George Eldridge and Aaron Ashbridge, mariners on board, and of Doctor Wilson Waters, Surgeon of the Hibernia, prove, that they did not see the Argo and Betsey, nor hear any firing of cannon, on the 6th of September, and that neither Captains Prole nor Thompson were on board the Hibernia on the 7th, nor was the Respondent on board of either of their vessels. In which last particular Davis and Groves concur. These witnesses also differ with Davis and Groves, about the hour that the Hibernia sailed in pursuit of the Argo, the duration of the chase, and the time of her return and rejoining the other Brigs.
It has also been given in evidence, that a suit had been instituted in the Admiralty by Captain Silas Talbot quitam &c. against the owners of the three Brigantines, for the spoliation of the Betsey and her cargo, who, upon an Appeal to this Court were decreed to pay L.11,141. 5. 4. damages to the Libellant, besides the costs, of which sum the present Appellants, as owners of the Hibernia, paid L.3,795. 3. 6. and towards costs on the 22nd January 1785. *
Upon this state of the case, two Questions arise: The first of fact; the 2nd of Law.
1.
With respect to the fact, there are two points, 1st. Whether the Respondent did willingly join the two other Captains Prole and Thompson, in the tortious capture of the Betsey from the Argo, knowing her to have been a prize to the Argo, and that the Argo was a friend? This would undoubtedly have been a lata culpa, an evident trespass, to call it by no harsher name. [182-Continued.]
If he did not, then 2ndly, Whether he was guilty of such gross negligence (crassa negligentia) as by law will make him responsible to the Appellants, considering the relation between them as owners and master of a vessel?
As to the 1st point, the evidence is not so satisfactory as might be wished in a case of such consequence to the parties. Had there been evidence given respecting the credit of the several witnesses, the matter would have been clearer. If Davis and Groves are to be credited, in addition to the other evidence, there is a very strong presumption indeed, that the Respondent is guilty of a great wrong, of a clear trespass; for if he saw the fight on the 6th, as he next day found that the Betsey, which had been captured, was an enemy, he must have concluded, that the Argo was a friend. And if all that the other witnesses swear in behalf of the Respondent, is true, yet I do not think, that the evidence of Davis and Groves is thereby invalidated. With respect to hours or times, in which particular occurences or transactions happened, witnesses of the greatest integrity
may and often do differ: This has happened in the cause before us. But as to other matters, the witnesses on board the Hibernia only swear, 'that they did not see nor hear, what the others say, they did.' The rule in such a case is, 'that one affirmative witness countervails the proof of many negative, because both may swear true,' and such interpretation should be put on the whole testimony, as to reconcile it; for, one may see and hear what another does not. Gilb. Law of Evidence 157. However, it does not appear necessary to determine this first point, as the second question admits of little difficulty, viz. Whether the Respondent has been guilty of such gross negligence as should make him responsible?
The Respondent was near to the Betsey, as well as the two other Letters of Marque; he might have gone on board her, and made every necessary and proper inquiry; he sent two of his crew on board her, to get her if possible into Delaware &c. he signed the order to M'Neil, the Prize master, which must have shewn, to perfect conviction, that the Betsey had been captured by the Argo, and that she was a friend. But it is said, that he confided in Prole, whom they had made Commodore, and in Thompson; that they deceived him; and that he signed the orders to the Prize master without reading them; and, in short, that he implicitly obeyed, and did whatever he was told to do. The Respondent should have reflected, that the seizing a valuable vessel and cargo was a serious piece of business, if belonging to a friend; he should therefore have weighed the consequences of his credulity in others; he could have inquired for himself, and had the same evidence with Prole and Thompson; he should have considered, that his owners placed their confidence in him, and in no other; he should have acted for himself, and taken care that he did no injury to any one. But he does not appear, by the defence made for him, to have exercised his own judgment at all. Was this using proper care and diligence, or was it inexcusable conduct, and gross negligence?
Let us now consider the law upon this evidence; for, ex facto oritur lex. It is agreed, that every one of the parties to a trespass, who participates in it, is a prespasser, and an...
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