fault, or has been guilty of fraud, they are bound to answer for him, otherwise not. If I give to a carpenter a vessel to repair, and he gives it to his apprentice, who, with one of his master's own tools, happens to kill somebody, the master will not be at all answerable for it. Therefore, the action against owners of ships cannot be assimilated to the action de pauperie, except so far as it makes the owner of a horse or mule liable, if by the fault of his driver, the animal has done some damage, but the analogy of that law does not reach farther.

Agreeably to the doctrines which I have contended for, owners of vessels will clearly not be liable, if they have not appointed the master for the purpose of making captures, otherwise they will be responsible, not merely to the amount of the value of their vessels, but to that of their stipulations, which formerly were of 12,000 and now are of 30,000 florins. In addition to that, those who have suffered the damage, may, by virtue of the decree of the 22d of October 1627, sue the security of 10,000 florins, which the captain is obliged to give, that he will bring his prizes into the port from whence he sailed, for so the decree expressly provides. I think, however, that such a demand would be unjust, unless it had been made known to the securities, at the time of their entering into the stipulation, that they would be exposed to that liability, and had agreed to it; for if they had simply engaged, as is almost always the case, that the captain should return with his prizes to the port from whence he sailed, I cannot express how unjust it appears to me, to make them liable on that security for any other cause; as I have already hinted, when speaking on the subject of securities.* But if all that I have mentioned is not sufficient to repair the damage, what shall we say in such a case? Are the owners to be held further? I think that they are, until they shall have made good the whole damage; for, it is clear, that a pledge or security does not liberate a debtor, unless it is fully sufficient to discharge the debt.t

* Above, p. 149.

† ff. de Distract. Pign. 1. 9. § 1.

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Moreover, if the vessel, which we are speaking of, be not a privateer, that is to say, if she has no commission, but nevertheless makes captures by order of the owners, I think that the same thing is to be said as if she really were a privateer; for, the right arises out of the authority and the appointment, and it is nothing to those who have suffered the damage, whether they are injured by a real privateer or by a vessel not provided with a commission.

CHAPTER XX.

Of Captures made by vessels not commissioned.

T is properly made a subject of inquiry, whether, if a ship not commissioned to make captures is attacked by an enemy, and in her defence, or from some other justifiable cause, takes an enemy's vessel, to whom in such case the prize is to belong? Three contending parties appear, who seem to have an equal claim to it, and in favour of each of whom many ingenious arguments may be adduced; they are the owner of the ship, the captain and mariners, and the shipper who may have taken her to freight.

On behalf of the owner of the ship, it may be said, that he is entitled to the prize, because it was taken with his own ship and guns, and because the captain and men who effected the capture were in his employ, and bound to labour for his benefit: it ought not to be given to the captain nor to the mariners, because they are not entitled in law to any thing besides their wages, nor to the freighter, because he only hired the vessel for the transportation of his merchandize, and for nothing else.

The master and mariners, however, may plead that the capture was achieved by their prowess and with the danger of their lives, and therefore, that they are justly entitled to the benefit resulting from it: that with respect to the owner of the ship and the freighter, they cannot in justice claim the prize, because they had not hired him to make captures, and the contract which they had made together, was for purposes of a quite different nature.

And lastly, on the part of the freighter, it may be argued, that he had hired the ship, the guns, the master, the mariners, and the right to their labour, not only for the transportation

of his merchandize, but also for the defence of the ship for the sake of the goods that it contained, which defence is to be taken with every thing incident to it, and involves the right not merely of repelling, but even of capturing the enemy, to prevent his doing any injury. That on these grounds, he is justly entitled to retain the prize, and it ought by no means to be given to the owner of the ship, his captain or mariners, who all ought to be satisfied with the stipulated reward for the hire of the vessel and their labours.

Such are the arguments which may be made use of in support of each of the above opinions. Before I proceed to state my own, I must premise, that there exists a decree of the board of directors of the West-India company, by which it is provided, "that fifty per cent. of the proceeds of every prize which shall be taken by a vessel hired out on freight, shall be paid to the company." This decree has been sanctioned by the states-general, and inserted in the instructions of the 15th of July 1633, for privateers cruising in the American seas.

It is clear, that the directors, when they made that decree, attended only to the interest of their company, nor had the states-general any thing else in view when they gave it their sanction; for, they made no rule whatever in this respect for other privateers than those above mentioned. It must, therefore, be considered as a special law, made with a view to particular persons and circumstances, and which is not to prejudice other cases to which it is not directly applicable.

As I have never seen a general law upon this subject, nor do I believe that any exists, the question is to be decided by the light of reason alone. On equitable principles, I think that the prize ought to be adjudged to the captain of the capturing vessel and his crew, and not to the owners or freighters. The latter, indeed, are the last who will be thought of. The owner of the ship appears better entitled, but still I would prefer to him the captain and crew. Others, however, have been of a different opinion.*

* In a case of salvage, which bears the strongest analogy to a case of unauthorized capture, (on the supposition that any persons, others than the sovereign of the captor, may be considered as entitled to the prize,) the late

In the year 1667, a ship sailing under a license from the French and Dutch West-India company, which had been granted to the freighters, captured an English vessel within the company's limits. The captors determined to keep the prize with them, though she was a worse sailer than their own vessel, because on consulting together, they agreed, that it was most advisable for the interest of the owners and freighters, as well as their own, that she should be carried into one of the West-India islands, where it was expected she would sell to better advantage. The question then occurred, to whom that prize was to be adjudged? The lawyers who were consulted on that question, decided, that the mariners, because they had been hired at a fixed salary by the month, and had not engaged themselves for shares of prize-money, should only have one tenth of the proceeds, and that the remainder should be equally divided between the owners and freighters.

I do not know upon what principle those gentlemen allowed one tenth to the mariners, nor perhaps did they know themselves. It seems, that they had no difficulty as to the one half of the remainder, which they gave to the owners of the ship; and therefore, they pass it over without assigning any reason for it; but they endeavour to justify, by argument, the allowing of the other half to the freighters. They contend, that it was by virtue of the license which the shippers had obtained from the West-India company, that the vessel was permitted to navigate to the West-Indies, that therefore they contributed, in a considerable degree, to the capture, and ought not to be placed in a worse situation than the owners of the ship. They say, that the mariners did not take the prize for the benefit of the owners of the ship only, but also for that of the owners

judge Winchester, district judge of Maryland, allowed one ninth part of the neat salvage to the owners and freighters of the salvor-ship, in proportion to their respective interests, in consideration of the risk to which their property had been exposed. The supreme court of the United States, before whom the cause was ultimately carried by appeal, increased the allowance to one third. The remainder was distributed among those who had been personally instrumental in the salvage. The Blaireau, 2 Cranch's Reports, 240.

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