20 F. Cas. 828 | D. Me. | 1837
This is a case of derelict, and a clear case of salvage unless
There is no doubt that this embezzlement works an entire forfeiture of all claim for salvage on the part of those who participated in it. Salvage property is always from necessity more or less exposed to be plundered by the salvors, and when found derelict it is peculiarly so, because the owner has then no power to protect it by the care and oversight either of himself or his agents. It is entirely at the disposal of strangers, who usually do not even know who the owner is, and who are not ordinarily persons trained by education and habit to the most exact and punctilious notions of the distinction between meum and tuum, particularly in relation to property abandoned by the owner; and the experience of maritime commerce in all ages shows that the temptation to illicit gain in such cases is apt to be too strong for the integrity of those who are most usually subject to it. The law does what it can on these melancholy occasions to fortify their honesty, by allowing them the most liberal reward. It is, for this reason, the habit of maritime courts not to stint the compensation of salvage service to a naked quantum meruit for the actual labor and danger encountered in the salvage. They act on principles of more enlarged liberality. It is the policy of the law, with a view to the general interest and security of commerce, and to encourage a hardy and adventurous class of men to engage in such laborious and hazardous enterprises, and to take from them the temptation to dishonesty, by the liberality of its reward. But while the law is thus liberal, it requires on the part of the salvors the most scrupulous fidelity. It visits, therefore, any embezzlement, although small, with an entire forfeiture of all claim for salvage. It not only withholds the extraordinary reward awarded to an honest salvor as a premium on his courage and hardihood, but by way of penalty on his fraud deprives him of even a quantum meruit for his labor. The right having been forfeited, it is not restored by the owner’s recovery of the embezzled goods by the aid of a criminal process. There is some reason to believe that a part of the crew of the Albion exhibited some reluctance to become participators in the fraud; and if any of them, before the institution of a compulsory process on behalf of the owners had voluntarily come forward and surrendered that part of the plundered property which they had reluctantly received, I should have felt it my duty to restore them to their rights as salvors. The spirit of the maritime law is to overlook and pardon offences on repentance and the tender of reasonable amends. But without such restitution there can be no pretence of a claim to salvage by those who have made themselves partners in the fraud. This is not contested by the counsel for the libellants, and upon the coming in of the depositions, by an amendment of the libel, the claim of salvage on the part of the master and crew has been withdrawn. But it is contended by the counsel for the respondents, that the master and the whole crew having been concerned in the embezzlement, this works a forfeiture, not only of their shares, but of that of the owners also. The master, it is said, is their agent, and the crew their servants; and the argument is that the owners, upon principles of law. cannot maintain a claim founded on the acts of their agent and servants, when they are so deeply tainted with fraud; that it is against public policy to support a claim Under sucb circumstances. It is at the same time admitted that this will be extending the forfeiture further than it has been carried in any reported decision.
In the case of The Blaireau, 3 Cranch [7 U. S.] 240, and that of The Boston [Case No. 1,673], the master was guilty of embezzlement, and in both cases the forfeiture of his share of the salvage was enforced against him by the court. In the latter ease he was part owner, and it was held that the forfeiture extended not only to the share which he claimed on the ground of his personal service, but to the portion to which he would have been entitled as owner. The Boston [supra]. It was not, however, intimated by the court, or contended at the argument, that the fraud of the master could prejudice the claim of the innocent part owners. The objection is admitted to be new, but if it is well founded in law and justice, it. ought not to be overruled merely because it has never been taken before. It is true that the master is the agent of the owners, and that they are bound for his acts, as well torts as contracts, while acting within the general scope of his authority. If a vessel is employed as a carrying ship, and the master purloins or embezzles goods taken on freight, the owner will be responsible for his fraud, because to receive and carry goods on freight is within
It is argued further that it is against pub- ¡ lie policy to allow the owners to maintain a claim through the acts of their agent and servants, when the transaction which is the foundation of their claim is so deeply tainted with fraud. But in point of fact, the act of the master is not properly the foundation, it is only the occasion of the owner’s claim. The master and crew have their own personal claim for their personal services. The foundation of the owner’s claim is the service of his vessel. Experience shows that the temptation to fraud is too strong for the integrity of that class of persons who are usually engaged in those enterprises. The law endeavors to overcome this temptation, first by the liberality of its rewards, and secondly by inflicting with unyielding constancy a forfeiture of all salvage upon every person who is guilty of embezzlement. By extending the forfeiture beyond the guilty individual, it is not apparent that more effectual security would be given to property in this exposed situation. If a man would not be deterred from pilfering by the fear of losing his own share of the salvage, there is but little probability that he would be by making his misdemeanor a ground of forfeiture of the rights of others. The operative check on his cupidity is the apprehension of losing his own reward. To extend the forfeiture in this way would be imposing a personal penalty, by way of punishment, where there had been no personal delinquen-ej\ It would be inconsistent with the principles of law and justice, and does not appear to me to be called for by any principle of public policy.
A question was raised at the argument, whether the clothing on board, which appears to have been principally the wearing apparel of the crew, ought to be included in the mass of property on which salvage is allowed. I think not On these melancholy occasions, those who escape from shipwreck usually find themselves in a strange land, without friends and without resources, and if the wreck happens to be brought to the same shore by other hands, the common feelings of humanity require that their clothing should be restored to them forthwith, unburdened with salvage.
Then as to the amount of salvage. In cases of derelict, the habit of the admiralty, it has been said, is to allow a moiety. The rule seems formerly to have been considered imperative, to allow that proportion in all cases, without distinction. But in modern times the rule is not considered as inflexible. Sometimes, though rarely, more is given, and sometimes less, having a just regard to the circumstances of each case; to the risk, the labor, the amount of property saved, and the value of that put at hazard by the salvor's service. The Aquila, 1 C. Rob. Adm. 37; The Fortuna, 4 C. Rob. Adm. 103; Rowe v. The Brig [Case No. 12.093]; The Henry Ewbank [Id. 6,376], When the property is large in amount, a less proportion is given, and when