The Albany , 44 F. 431 ( 1890 )

Brown, J.,

(after stating the facts as above.') The real question in this case is whether the libelants are responsible for the wholesale plunder of the property placed upon the tug and these lighters, and the answer to this practically depends upon the further question whether the men in charge .of such tug and lighters were employed by the libelants or by the Albany, or were merely marauders acting upon their own responsibility.

There is no doubt of the general proposition that salvors are bound to take such care of the property saved as a prudent person takes of his own property; that they are liable for the consequences of their own negligence or misconduct; and that, in case of a gross breach of trust or embezzlement of the property, the court may decree an entire forfeiture of their claim upon the same principle that a seaman’s right to wages may be forfeited by his misconduct. Mason v. The Blaireau, 2 Cranch, 240; The Senator, Brown, Adm. 372; Jones, Salv. c. 7.

With regard to the responsibility of a principal for the willful or criminal acts of his agents and servants, the general rule is still as laid down in McManus v. Crickett, 1 East, 106; Foster v. Bank, 17 Mass. 479; and Mali v. Lord, 39 N. Y. 381,—that the master is not liable for the willful acts of his servants, committed without his express or implied authority, unless, at least, they are done strictly within the scope of their employment; but there is no doubt that in the case of inn-keepers, common carriers, and ship-owners, they are, upon grounds of public policy, liable for the embezzlement of their servants and agents, (Schieffjelin v. Harvey, 6 Johns. 170; King v. Shepherd, 3 Story, 349; The Niagara, 21 How. 7; Nugent v. Smith, 1 C. P. Div. 33; The William Taber, 2 Den. 329; The E. M. McChesney, 8 Ben. 150.) Thus in The Amiable Nancy, 3 Wheat. 558, the owners of a privateer were held civilly liable for the acts of her crew in plundering a neutral vessel; Air. Justice StoRY observing that—

“This is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them. * * * They are innocent of the demerit of this transaction, having neither directed it nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libelants; that they are not hound to the extent of vindictive damages. ”

See, also, The Anna Maria, 2 Wheat. 327. In Taylor v. Brigham, 3 Woods, 377, it is said that—

“The law treats the captain of a boat as in some sort a subrogated principal, or qualified owner of the ship, possessing authority in the nature of ex-ercitorial power for the time being, and his liability, founded upon this consideration, extends not merely to his contracts, but to his own negligences, mal-feasances, and misfeasances, as well as to those of his officers and crew. * * * The owners are even liable for the willful and mali ious acts of the master, done in the course and within the scope of his employment. ”

How far the liability of the owner of a salving vessel extends for the misconduct of his officers and crew may admit of some doubt. The authorities upon this point arc not altogether in harmony, and jicrhaps the prevailing rule cannot be bettor stated than by saying that the owner is not liable for the secret and independent acts of his crew; but it would be a singular anomaly to allow them a claim for salvage when the very purpose 1'or which the service had been undertaken had been defeated by a wholesale plunder of the properly saved. In the case of The Boston, 1 Sum. 328, 341, Mr. Justice StoRY says;

“In cases of salvage, the party founds himself upon a meritorious service, and upon an implied understanding that he brings before the court, for its linal award, all the property saved, with entire good faith, and he asks a compensation for the restitution of it uninjured and unembezzled by him. The merit is not in saving tho property alone, but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently lost, and never reaches the owner, no compensation can be claimed or decreed. * * * What claim could be more extraordinary than an enunciation by a salvor in a court of justice that he had saved the property, and had perpetrated a gross fraud or theft upon the owner, for the purpose of withdrawing the property from him, and then to ask, in the same breath, for a compensation for his labor, notwithstanding his iniquity?”

In the case of The Island City, 1 Black, 121, a barque in distress had been taken in tow by a steamer and brought into port;' but while “in possession of the steamer the officers and crew of the latter broke open the chests of the master and seamen of the barque, robbed them of their clothes, watches, and money, carried away the quadrants and barometers of the ship, rifled trunks on freight, and this pillage was committed extensively, and upon a plan of general plunder, by the mate and many of the?seamen, without opposition from any of them.” It was held that all the salvage apportioned to the crew should be forfeited on account of theii misconduct, but that the owners of the steamer were entitled to their proportion.

In the light of these authorities, let us consider the relations of these parties to the libelants and to each other. Libelants owned the tug and first two lighters. They were also largely engaged in lumbering and machine-shop business, and a general store; owned docks, mills, and shops at Duncan city, and employed several hundred men, who lived in the neighborhood, and who, when the mills were shut down, took employment where they could find it. Witness Elliot was the “general outside foreman” of libelants; had “the general oversight of all the outside work,” having full control and authority over the hiring and employment of the tug. He made the bargain for tbe use of the tug and lighters in this instance, and accompanied the tug upon all her trips to the Albany. How far he shared in the plunder of this property may admit of some doubt,‘though the testimony tends to show that a portion of it was left at his house, at least without his dissent, and that he was standing upon the dock while the flour was being taken away from the tug, and must have known what was being done with it. He seems even to have directed a part of it.to be sent to Roberts, his brother-in-law, who was foreman of the machine-shops, though it is but just to him to say that he made restitution of one tierce of lard that he had received, after keeping it for about three' months, and paid for most of the flour. Robinson was the master of the tug, and commanded her throughout the day, except upon her first trip, when the bargain was made. He was not only privy to the conspiracy, but received a portion of the plunder, though he seems to have afterwards lc«;t it. Roberts was libelant’s foreman, was actually engaged with the others in the plunder, receiving a tierce of lard and four and a half barrels of flour. McDougall, the engineer of the tug, admits receiving eight or nine' sacks of flour. George Smith, the fireman, also received several barrels, while the rest was divided up among the crew.

I do not see how it is possible for libelants to escape liability for the loss of the property laden upon the tu^. It was claimed with respect to this that the flour was only rolled upon it to save it from being-thrown into the lake, and that it was virtually a gift from the captain to the men upon the tug; but, as the lighters had been hired for the express purpose of saving the cargo, it is very improbable that the captain should have intended to give away that portion of it which wont upon the tug. Aside from the improbability of his doing this, Capt. Williams had no right to sacrifice property in this way. It was not within the scope of bis authority to give away property which could possibly be saved, and the crew of tho tug were bound to know' this, and were bound to deal with the property as salvors. A man cannot give away that to which he has no title. The master of a vessel has possession of the cargo for the purposes of transportation and delivery, and he has no more right to give it away to another than he has to sell it, and put the money in his own pocket. A gift under such circumstances conveys no title, and the donee is chargeable for flic conversion of it as for embezzlement.

With regard to the property on the first two lighters, tho case is not essentially different. Under instructions to take them to Cheboygan and put their cargoes in warehouse, the lighters were tow'ed to Cheboy-gan, and libelants, failing to obtain the use of the Michigan Central warehouse, sent them to Duncan city, where it was their clear duty to see that they were kept in safot3r until they were unladen. They were left in charge of one Knox, a man who had been employed for jeveral seasons by libelants, but who had been paid off the Wednesday night previous. He had been taken off1 with a gang of men to the Albany, worked on her eight hours, for which Todd, who had been recommended by Capt. Robinson of the tug to Capt. Williams of the Albany as a timekeeper, allowed him $00. Knox says his time with libelants “went right on” under an arrangement with Roberts, and for this generosity he allowed a charge of $10 to bo placed against his account for Roberts’ benefit. Knox was put in charge of the lighters at Duncan city, apparently by the orders of Robinson and Roberts, and perhaps with the consent of Capt. Williams of the Albany, under whose pay he was at the time. He exhibited his faithfulness to his trust by getting drunk, going to sleep, permitting the cargoes of the lighters to bo looted by a gang of marauders during tho night, and sharing in the plunder. Leischman, who was sent by Roberts to go down to tho lighters, stay with Knox, and help him pump them out, bad not been to the Albany at all, but was an employe of libelants, and had been working in their shop, running the bolt-machine. He says that no instructions were given to him about taking care of tho property, and gives this as an excuse for offering no opposition to tho raid that was made upon the lighters that night, and for receiving his share of the plunder. Indeed, both Knox and Leischman, instead of protecting the property, as it was their duty to do, seem to have boon the aiders and abettors of a gang of thieves, who came to the dock that night with such wagons as they could obtain, and carried away all their vehicles would hold. In the morning, the lighters were careened so much to one side that they had to be straightened up before they could be taken back to Cheboygan' to unload. In all, some 14 or 15 persons participated in this spoliation.

Conceding that libelants did not stand in the position of a common carrier with respect to these cargoes, they at least were bound to take reasonable and proper care of them, and to make good losses occasioned by the negligence of their servants. Brind v. Dale, 8 Car. & P. 207.

The defense that Knox was hired by the master of the Albany to take care of this property; that it was intrusted to him by the expressed direction of Capt. Williams, and that libelants are' not chargeable for his breach of trust, is plausible, but not altogether sound. Granting that Knox-had been or was in the pay of the Albany, the evidence is clear that Capt. Williams instructed Todd to take the lighters, and unload them in the Michigan Central warehouse at Cheboygan; that, failing to obtain this warehouse, libelants assumed charge of the lighters for the night, and sent them to Duncan city as a safe place for them to remain. It is scarcely necessary to say that sending them to a dock which was accessible to the public by day and night — so easy of access, indeed, that the amount of the loss was only measured by the capacity of the vehicles that were driven there to take it away — is not such care as a prudent man would take of his own property. Irrespective of the question whether Knox was in the employ of the Albany or not, we think that libelants are chargeable with gross negligence, under the circumstances, and, with the excitement then prevailing in that neighborhood, in suffering the b.arges to lie at a wharf open to the public, and apparently without any protection.

The case, so far as concerns the Nelson and Bob Robinson lighters, is governed by different considerations. These lighters were not owned by libelants. They had no interest in them, and no personal knowledge that, they had been towed to the Albany. While there is abundant evidence of a corrupt agreement between Elliot, Robinson, and the masters of these lighters to tow them to the Albany and back for a share of their plunder, such agreement was entirely outside the scope of their agency and employment, arid bound only the parties to it. It is true that Capt. Williams may have supposed that these lighters belonged to libelants, but no representation of that kind seems to have been made to him, and such was not the fact. Libelants appear to have been entirely innocent, of any complicity in this entire transaction, and it is unjust that they should be held responsible for the acts of strangers, or even of their employes, when they clearly exceeded their authority. It is no part of the duty of the manager or master of a tug to permit her to be engaged in a marauding expedition of this kind, and is so far outside the scope of their employment that the owners are not bound by it.

The evidence in this case discloses a very singular misapprehension upon the part of a certain class of people with regard to the duties of the •public towards vessels in distress, and with regard to the ownership of property thrown overboard or unladen from them. So far from being moved by the misfortunes of the Albany to extend to her such assistance as was in their power, her signals of distress seemed to have been interpreted as an invitation to everybody to help himself to whatever he could lay his hands upon belonging to the cargo. Indeed there is a medieval flavor about the conduct of the men engaged in this wrecking expedition, which intuitively recalls to the student of maritime law the customs of the Gauls, as stated by Judge Peters in his observations upon the laws of Oleron, who were in the habit of seizing upon the cargoes of vessels stranded upon their coasts, and confiscating them to the use of the lords of the soil, and of either selling their crews into slavery, or sacrificing them as an offering to their gods. Happily, the crow of the Albany were preserved from this fate, as she succeeded in extricating herself from the reef, and steaming to a port of safety.

There must be a decree for the libelants for the amount of their bill, and a decree for the cross-libelants for the value of the property taken from the tug and the first two lighters, less the amounts received in settlement and payment for the same, and a final decree for the party in whose favor a balance is found to be due. The case will be referred to a commissioner to report this amount, upon the testimony already taken and such further testimony as may be offered, within 20 days from this date.