Recent American Decisions.

District Court of the U. S. for the District of Massachusetts, December Term, 1854.

THE CARGO OF THE BARQUE MISSOURI.

A. T. LEACH ET AL. Libellants; SUN MUTUAL INS. Co., OF NEW YORK, Claimants.

Salvage
Master

Claim of Owners and Crew-Effect of Fraudulent Acts by the Lien for Salvage Service - Salvage on Property not restored to the Owners by the Acts of the Salvors alone.

A vessel had been saved from going to pieces on the rocks, with the aid of the master and crew of another vessel, and was stranded. While the property on board was in the process of transportation to the other vessel, with their aid and still in danger, the master of that vessel engaged in a fraudulent conspiracy with the master of the other vessel to appropriate to their own use a portion, not designated, of the property saved. Part was thereafter remitted to the owners. The master of the salving vessel brought a part to a home port and concealed it. It was subsequently discovered by other persons, and seized on a libel in behalf of the owners and crew of the salving vessel, for salvage.

And it was held, that the fraudulent conduct of the master did not defeat their claim; that they were entitled to salvage both on the property concealed and on that remitted, and had a lien on the former for the salvage due on both.

THIS was a libel in behalf of the owners and crew of the ship Sterling, of Salem, Henry C. Pitman, master, for salvage on a large amount of specie, and some other property, taken, and alleged to have been saved from the barque Missouri, of New York, Samuel N. Dixey, master, when wrecked on the coast of Sumatra. The master and first and second mates of the Sterling were not parties to the libel.

In October, 1850, the Missouri and Sterling were lying together in Rigas Bay, waiting to take in cargoes of pepper; each with a large amount (the Missouri some $24,000) of specie on board. In the afternoon of October 31st, the Missouri got under way to leave the bay, but was taken aback at the entrance of the harbor by a head wind, and let go her anchor. The next morning she was riding with one anchor, very near a high rocky bluff, and as the libellants' witnesses testified, with a heavy sea-running, and a

gale blowing on shore. Capt. Pitman came on board about 10 A. M., and remained a half hour or an hour and then left, after making an arrangement that Dixey should hoist a signal in case he wished to get under way. In the afternoon about 4 o'clock, the Missouri still riding with one anchor, a signal was hoisted, and Pitman, with four men, came to the Missouri. Just before he reached her, the cable parted; another anchor was let go, but the cable of that also parted. Pitman and his men assisted in making sail on the vessel. She weathered the point and came into a bight between two rocky bluffs, with a sandy beach about half a mile long, the wind and sea setting in upon the beach. They attempted to tack, but owing to the chains under foot she missed stays. The kedge was thrown out but came home, and she went stern on upon the beach.

A large amount of specie was removed to the Sterling that night, and either the night of the wreck, as the claimants contended, or the next morning, as the libellants admitted, while the alleged salvors or some of them were still engaged in saving articles from the wreck, Pitman and Dixey agreed to appropriate about two-thirds to their own use, to restore the remainder to the owners, to obtain salvage thereon, and report that the Malays had stolen the remainder; part of which the libellants contended they did actually take.

No attempt was made to get the Missouri off at any time. The Sterling proceeded to Analaboo, where Dixey procured another vessel, which he manned with his crew, and sailed for Penang, taking with him part of the specie, and part he left on board the Sterling, in charge of Capt. Pitman. After their separation, Dixey remitted to his owners, in New York, by bills of exchange, the sum of $7,355.18.

Pitman completed his cargo and arrived at Holmes' Hole in the winter of 1851. When there, he went on shore and secretly buried in the sand a large amount of specie.

Subsequently, Pitman and Dixey were indicted, for stealing and plundering from the Missouri on the Coast of Sumatra. Dixey pleaded guilty, and Pitman was tried and convicted at the March term of this court, A. D. 1852. Before this, information having been obtained in regard to the burial of the money, a reward was offered, and about $7,500 was discovered near Holmes' Hole, brought to Boston, and placed in the custody of the court. Against this specie the present libel was filed. On the trial of the pres

ent case, a great deal of evidence was introduced, bearing upon the conduct of Pitman and Dixey, in regard to the management of the vessel and the disposition of the specie, the danger incurred from the Malays, the probability that any of the specie fell into their hands, the burial of the money at Holmes' Hole, the expense and trouble incurred in recovering it, &c. This evidence it is not necessary to give in detail. The conclusions of fact reached by the court appear in the opinion.

R. H. Dana, Jr. for the libellants.

This argument is not reported, as the points and authorities will be found sufficiently referred to in the opinion of the court.

Rufus Choate, and Geo. S. Hale, for the claimants, suggested that there were circumstances in the case which gave rise to the suspicion that the Missouri might have been purposely wrecked, and as to this referred to the authorities cited to the other points.

No salvage is recoverable, because the loss was occasioned by the negligence of Pitman, agent of the owners of the Sterling. The Duke of Manchester, 4 Notes of Cases, 575; Shersby v. Hibbert, 5 Ib. 470; The Neptune, 1 W. Rob. 297. The negligence which will defeat a claim for salvage is not necessarily gross negligence but ordinary negligence, for a person of the experience and occupation of the alleged salvors. The Cape Packet, 3 W. Rob. 125; The Dygden, 1 Notes of Cases, 115.

No claim for salvage can be entertained, because the specie was taken from the Missouri animo furandi. No title to property or right to compensation can be acquired for any one by a violation of law. Ex dolo malo non oritur actio. Jus ex injuria non oritur. Non debeo melioris conditionis esse quam auctor meus a quo jus in me transit. (Broom's Legal Maxims, 571.) An attachment effected by illegally breaking the defendant's door is invalid. Ilsley v. Nichols, 12 Pick. 270.

A common carrier has no lien on goods unlawfully put into his hands and transported. Robinson v. Baker, 5 Cush. 144.

By the general principles of salvage, the act on which the claim is founded must be lawful. Talbot v. Seeman, 1 Cr. 3, 28; The Alerta, 9 Cr. 359, 367; The Bee, Ware, 332, 339; The Florence, 20 Eng. Law and Eq. R. 607, 616; The Barefoot, 1 Ib. 661; Clark v. The Dodge Healy, 4 Wash.

C. C. 651; Rowe v. The Brig

and Cargo, 1 Mason,

372, 379; The Adventure, 8 Cr. 221, 227; The Fleece, 3 W. Rob. 279; The Blenden-Hall, 1 Dods. 414. And see Laws of Oleron, Art. 25, in 1 Pet. Adm. Dec. App. p. xxxix. The right to salvage is founded on enlarged principles of public policy, as a reward to noble conduct. It is designed to encourage honesty, and discourage fraud. The Boston, 1 Sum. 328, 339, 341; Talbot v. Seeman, supra; The Emulous, 1 Sum. 207, 210; The Henry Ewbank, Ib. 400, 413. But where the act, without which there is no salvage, is in itself a gross crime, these principles forbid a reward.

It is every where admitted that embezzlement or gross misconduct forfeits a vested claim for salvage as against the guilty party. What, then, is the ground of the owners' claim to salvage, independent of the guilty master. Admitting that an embezzlement by him, subsequent to the vesting of a salvage claim by meritorious acts, might not affect their right, still, when the act of crime is inseparable from the salvage service, and the disposition made of the property saved is designed to carry out a felonious purpose, the nature of the act defeats any claim for salvage, or, to speak more correctly, no claim for salvage can arise.

Here, the libel alleges that this salvage service was by the removal to the Sterling (with the previous acts of the salvors); but this removal was larceny, it was a felonious trespass.

What then is the foundation of the owners' claim? The early English authorities do not seem inclined to favor it. It has been said, "The master and crew are in strict language the only salvors;" that "in former times, before the introduction of steam vessels," their claim was only "incidentally" allowed to be entertained. Cases where the ship herself rendered considerable service were considered as a sort of exception. Dr. Lushington says, the owners of a steam vessel "may come in and make a claim as owners of the vessel, incidental to the claim of the master and crew." The Beulah, 2 Notes of Cases, 61; The San Bernardo, 1 Rob. 178; The Vine, 2 Hagg. 1; The Salacia, Ib. 264; The Charlotte, 3 W. Rob. 72; S. C. 4 Notes of Cases, 281; The Two Friends, 2 W. Rob. 349. Thus we contend, their claim is recognized as derivative and incidental, arising from, and depending on, the master's act.

The crew may stand on a different footing from the owners. They labor with their hands; they incur personal haz

ard, and their claim may be considered as original and independent, and, therefore, be not affected by a fraud like that here committed, while that of the owners is defeated by it. Here, it has been held by STORY, J., that the master has an implied authority from the owners to save property. The Nathaniel Hooper, 3 Sum. 542, 579. And the same Judge says, "a salvage crew cannot by any shuffling or management deprive the owners of their right to share in the salvage. They must take or lose in common with the latter." The Henry Ewbank, supra, 419; see The Robert, 3 Rob. 202; and in The Britain, 1 W. Rob. 40, it is held that the master may bind his owners by an agreement to do salvage service for a specified sum. Salvage service, then, is in the course of his employment, and the owner is responsible for acts done in the course of such employment, though wilful and malicious, criminal and not authorized. Dias v. The Revenge, 3 Wash. C. C. 262; Ralston v. The State Rights, Crabbe, 43; Die Fire Damer, 5 Rob. 357.

The act, whatever it is, is the foundation of their claim. Qui sentit commodum sentire debet et onus. Adopting the act, they adopt its consequences, and such ratification is equivalent to a previous authority. Broom's Leg. Max. 553, 557, 679.

Would the owners have a claim for salvage if Pitman and Dixey had wilfully cast the Missouri away, with the design, which it is admitted they formed and attempted to carry out afterwards, of appropriating a part not designated to themselves. The specie would be in as much danger and the owners as innocent as now. But it would be an outrage on every principle of justice and sound policy, to permit a felon to recommend himself to his employers, and afford a motive to them to protect him against his crime, by securing a large reward for them by that crime, and to enforce, by the aid of a court of justice, compensation for an act which is part of a scheme of defiance of all justice.

Gross negligence of salvors, pending the salvage, forfeits the owners' claim for previous meritorious services. The Duke of Manchester, supra. Why not larceny of the property saved? In the cases of The Florence, and The Barefoot, the owners' claim was held to be forfeited or prevented by the alleged acts of the master and crew, if proved.

The Rising Sun, cited by libellants, was purely a case of subsequent embezzlement, i. e. subsequent to meritorious acts, by which it may perhaps be said, the claim for salvage had vested. It does not appear as matter of fact in The