United States v. Brig Malek Adhel

Mr. Justice STORY delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United .States for the district cf Maryland, sitting in admiralty, and affirming a decree of the District. Court rendered upon an information in rem, upon a seizure.brought for a supposed violation of the act of the 3d of March, 1819, ch. 75, (ch. 200,) to protect the commerce of the United States, and to punish the crime of piracy. The information ofigi-. nally contained five counts, each asserting a piratical aggression and restraint on the high'seas upon a different vessel: one, the. Madras, belonging’to British subjects; another, the Sullivan, belonging to American citizens; another, the Emily Wilder, belonging to American citizens; another, the Albert, belonging to British subjects; and another upon a vessel whose name was unknown, belonging to Portuguese subjects; and this last count contained also an allegation of a piratical depredation. The Malek Adhel and cargo were claimed by the firm of Peter Harmony and Co., of New York, as..their property, and the answer denied the whole gravamen of the informa- - tion. • At the hearing in the District Court, the vessel was condemned and the cargo acquitted, and the costs were directed to be a charge upon the proper^- condemned. An appeal was taken by. both parties to the Circuit Court; and upon leave obtained, two additional counts were there filed, one alleging a piratical aggression, .restraint, and depredation upon a vessel belonging to Portuguese subjects, whose name was unknown, in a hostile manner and with intent to destroy *230 and plunder the vessel,, in violation of the law of nations; and another alleging an aggression by discharge of cannon and restraint upon a British vessel called the Alert, or the Albert, in a hostile manner, and with intent to sink and destroy the same vessel, in violation of the law of nations. , Upon the hearing of the cause in the Circuit Court, the decree of the District Court was affirmed; and. from that decree an appeal has been taken by. both parties Jo this .court.

It was fully admitted in the court below,' that the owners of the brig and cargo never contemplated or authorized the acts complained of -; that the brig was bound on an innocent, commercial voyage from New York to Guayamas, in California; and that the equipments on board were the usual equipments for such a voyage. It appears from the evidence that the brig sailed from the port of New York,on the-30th of June, 1840, under the command of one Joseph Nunez-, armed with a cannon and ammunition, and with pistols and-daggers on hoard. The acts of aggression complained of, were committed at different times under false pretences, and wantonly and wilfully without provocation or justification, between the 6th of July, 1840,' and the 20th of August, 1840, when the brig arrived at Bahia; where, in consequence of the information given to the American consul by the crew, the brig was seized by the United States ship Enterprize, then at that port, and carried to Rio Janeiro, and from- thence brought to the United States., The general facts are fully stated in a deposition' of one John Myers, the first mate of the Malek Adhel; and-his testimony is corroborated by the other evidence in the cause, in its main outlines and details.. The narrative, although long, cannot be better given than in his own words. He says, among other things, “ Oh Tuesday, the 30th of June,” [Here the judge read ¿ part of the evidence of Myers,which is set forth in the statement of.thé case by the reporter.]

Now upon this -posture of the Case,- it has been contended, 1st. That the brig was. not an armed vessel in the sense of the act of Congress of 181-9, ch. 75, (ch. 200.) 2. That the aggressions, restraints, and depredations disclosed in the evidence were -not piratical within the sense of the act. 3. That if the case in both j-espects is brought within the scope of the act, still neither the brig nor the cargo are liable to condemnation, because the-owners neither participated in nor authorized the piratical acts, but are entirely innocent-thereof. 4. That if the brig is so liable to condemnation, the'cargo is not, either under the act of Congress or by the law of nations.

*231 We shall address ourselves accordingly to the consideration of each of these grounds. of defence. The act of 1819, ch, 75, (ch. 200,) provides, in the first section, that the President is authorized and requested to employ the public armed ships of the United States'with suitable instructions “ in protecting the merchant ships of the United States and their crews from piratical aggressions and depredations.” By the second section the commanders of such, armed vessels, are authorized “ to subdue, seize, take, and send into any port of the United States any armed vessel or boat, or any vessel or boat the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or- seizure upon any vessel of the United States, or of the citizens of the United States, or upon any other vessel,” &c. By the third section it is provided “that the commander and crew of any merchant vessel owned wholly or in part by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure,.which shall be attempted upon such vessel, or upon any other vessel owned as aforesaid, by the commander ot crew of any other armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same,” &c. ..Then comes the fourth section, (upon which the five counts of the original information are founded,) which is as follows, “ That whenever any vessel or boat from which any piratical • aggression, search, restraint, depredation, or seizure shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use and . that of the captors, after due process and trial.in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel §hall be brought; and the same court shall thereupon order a sale and distribution thereof. accordingly, and at their discretion.” The fifth section declares, that any person who shall on the high seas commit the crime of piracy as defined by .the law of nations, shall, upon conviction thereof, be punished, with death.

Such are the provisions of the act of 1819, ch. 75, (ch. 200.) And it appears to us exceedingly clear, that the.Malek Ádhel is an “ armed vessel” within the true intent and meaning of the act. No distinction is taken, or even suggésted in the act, as-to the objects, or purposes’, or character of the armament, whether it be for offence or defence , legitimate or illegitimate. . The policy as well as the words *232 of the-act equally extend to all aimed vessels -which commit the' unlawful acts specified - therein. And there is no ground, either of principle or - authority, upon which we me at liberty to extiact the present case from the . operation of the act.

The next question is whether the acts complained of are piratical within the sense and purview of the act. The argument for the claimants. seems to suppose, that the act does not intend tó punish any aggression,' which, if.carried into complete execution, would not amount to positive piracy in contemplation of law. That it must be mainly,- if not exclusively, done animo furandi, or lucri causa ;

and that it raust unequivocally demonstrate that the aggression is with a view to plunder, and not for any other purpose, however hostile or atrocious or indispensable such puip'ose may be. We cannot adopt any such narrow ahd limited interpretation of the words of the act; and in otar judgment it would manifestly defeat the objects and policy of the act,’ which seems designed to carry into effect the-general law' of nations on the same subject in a just and appropriate manner.' Where the act.úses the word “ piratical,” it does so iri a general sense; importing that .the aggression is unauthorized by the law of nations, hostile in its character, wanton and criminal in its commission, and utterly without -any sanction from any public authority or-sovereign power. In-short, it means that the act belongs to the class of offences which pirates are in the habit of perpetrating, whether they do it for purposes of plunder,, or for purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed, and properly deemed, hostis humani generis. • But why is. he so deemed ?• Because he commits hostilities upon the subjects and properly' of any or all nations, without any regard to right or duty, or any pretence of public authority. If he wilfully sinks or destroys an innocent merchant ship, without any other object than to -gratify his lawless appetite for mischief, it is just as much a piratical aggression, in the sense of the law of nations, and of the act of Congress, as if he. did it solely and exclusively for the sake-of plunder, lucri .causa The law looks to it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the. act of a pirate,- and of one who is emphatically hostis humani generisi We think that the aggressions established by the evidence bring the case completely within. the prohibitions of the act; and if an intent to plunder were necessary to be established, (as we think it is not,) the acts of aggression and hostility and plunder committed on the *233 Portuguese vessel are sufficient to establish the fact of an open although petty'plunderage.

Besides, the argument interprets the act of Congress as though it contained only the word “ depredation,” or at least coupled aggression and depredation as concurrent and essential circumstances to bring the case within the penal enactment of the law. But the act has no such limitations or qualifications'. It punishes ■ any piratical aggression or piratical search, or piratical restraint, or piratical seizure, as well as a piratical depredation. Either is sufficient. The search or restraint may be piratical although no plunder follows, or is found worth carrying away. What Captain Nunez designed under his false and hollow pretences and excuses it may not be easy to say, with exact confidence or certainty. It may have been to train his crew to acts of wanton and piratical mischief, or. to seduce them into piratical enterprises. v It may have been from a reckless and wanton abuse of power, to gratify his own lawless passions. It could scarcely have been from mental hallucinations; for there was too much method in his mad projects to leave any doubt that there was cunning and craft and worldly wisdom in his course, and that he meditated more than he chose to explain to his crew. They never suspected or accused him of insanity, although they did of purposes of fraud.

The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression bé with of without the co-operation of the owners. The vessel which commits the aggression is treated as’the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference'whatsoever to the character or conduct of the owner. The vessel or boat (says the act of Congress) from which such piratical aggression, &c., shall have been first attempted or made shall-be condemned. Nor is there any thing new in a provision of this sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which,^rr by the master or crew thereof, a wrong or offence has been done as the offender, without any regard whatsoever to the personal, misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnify to the injured party.. The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has *234 been applied to other, kindred cases, such as cases arising on embargo and non-intercourse acts. In short, the acts of the master and crew, in cases of this sort, bind the interest pf the owner of the ship, whether he be innocent or guilty; aiid he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton- wrongs. In the case of the United States v. The Schooner Little Charles, 1 Brock. Rep. 347, 354 , a case arising under the embargo laws, the same argument which has been addressed to us, was upon that occasion add essed to Mr. .Chief Justice Marshall. The learned judge, in reply, said: “ This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is- not the less an offence, and does not the less subject her to forfeiture because it.was committed without the authority and against the will of the owner. It is true that inanimate matter pan commit rio offence. But this body is animated and-put in action- by the. crew, who are guided, by the' master. The vessel acts and speaks'-by the master. She reports herself by the master. It is therefore not unreasonable that the vessel should be affected ,by this report.” - The same.doctrine was held -by this court in the case of the Palmyra, 12 Wheat. R. 1, 14, where' referring to seizures in revenue causes, it' was said: "The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing; and this whether the offence be .malum' prohibitum or malum in re.

The same thing applies to proceeding in rem or seizures, in the Admiralty.” The same doctrine, has been fully recognised in the -High Court of Admiralty in England, as is sufficiently apparent from the Vrow Judith, 1 Rob. R. 150; the Adonis, & Rob. R. 256; the Mars, 6 Rob. R. 87, and indeed in many other cases, where the owner of the ship has been -held bound by the acts of the master, whether he-was ignorant thereof or not.

(a)

The ship is also by the general maritime law held responsible for the torts -and misconduct of the master and .crew therspf, whether arising from negligence or a wilful disregard of duty; as for example, in cases of collision and other wrongs -done upon the high seas or elsewhere within the admiralty and maritime jurisdiction, upon, the .general policy of that law, which looks to the instrument-itself; used as the means of the mischief as. the-best and surest pledge for the compensation and indemnity to the.injured party..

*235 The act of Congress has therefore done nothing more on this point than to affirm and enforce the general principles of the maritime law and of the law of nations.

The remaining question is, whether the cargo is involved in.the same fate as the ship. In respect to the forfeiture under the act of 1819, it is plain that' the.cárgo stands upon a very different ground from that of the ship. Nothing is said in relation to the condemnation of the cargo in the fourth, section of the act; and in the silence of any expression of the legislature, in the case of provisions confessedly penal, it ought not to be presumed that their intention exceeded their language. We have no right to presume that" the policy of the act reached beyond the condemnation of the offending vessel.

The argument, then, which seeks condemnation of the cargo, must rely solely and exclusively for its support upon the sixth and seventh counts, founded upon the law of nations and the general maritime law. So far as the general maritime law applies to torts or injuries committed on the high seas and within the admiralty jurisdiction, the general rule is, not forfeiture’of the offending property) but compensation to the full extent of all damages sustained .or reasonably allow-, able, to be enforced by a proceeding therefor in ream or in personam.

It is true that the law of nations goes in many cases much farther, and inflicts the penalty of confiscation for very gross and wanton violations of duty. But, then, it limits the penalty to cases of extraordinary turpitude or violence. For petty misconduct, or petty plunderage, or petty neglect of duty, it contents itself with the mitigated rule of compensation in damages. Such was the doctrine recognised by this court in'.the case of the Marianna Flora, 11 Wheat. R. 1, 40, where an attempt was made to inflict the penalty of confiscation for an asserted (but not proved) piratical or hostile aggression. Upon that occasion, the court said: « The other count” (which was similar to those now under our consideration) “ which seeks -condemnation on the ground of an asserted hostile aggression, admits of a similar answer. It proceeds upon the principle that, for gross violations of the law of nations on the high seas, the .penalty of confiscation may be properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever *236 may be the case, where a gross, fraudulent, and unprovoked attack is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed- to lighter faults or common negligence. It may be just in such cases to award to the injured party full compensation for his actual loss and damage; but the infliction of any forfeiture beyond this does . not seem to be pressed by any considerations derived from public law.” And the court afterwards added: “And a piratical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penally of confiscation for such a gross breach of the law of nations. But every hostile attack in a time of peáce is not necessarily piratical. It may be by mistake or in necessary .self-defence, or to repel a supposed meditated attack by pirates. It may be justifiable, and-then no blame attaches to the act; or it máy be without any just excuse, and then it carries responsibility in damages. . If it proceed farther, if i: be an attack from revenge or malignity, from a gross abuse of power, and a settled purpose of mischief, then it assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administerthat is, (as the context shows,) confiscation and forfeiture of the- offending vessel.

Now, it is impossible to read , this language and not to feel that it directly applies to the present case. In. the first place, it shows,-that the offending vessel may?by the lave of nations, in the case supposed of an attack from malignity, from a gross abuse of power, and a settled purpose of mischief, be justly subjected to forfeiture. But it ■is as clear that the language is solely addressed to the offending vessel and was not intended as of course to embrace the cargo, even if it belonged to the same owner, find he did not participate in or authorize the offensive aggression, For the court afterwards, in another part of the case, where the subject of the cargo was directly under consideration said, “But the second count” (founded on the law of nations) “ embraces a wider range; and'if it had been proved in its aggravated extent, it does not necessarily follow that the cargo ought to be exempted. That is a^question which would require grave deliberation. It is in general true that the act of the master does not bind the innocent owner of the cargo ; but the rule is not of universal application. And where the master is also agent and the owner of the cargó, or both ship and cargo belong to the same person, a distintív lion may, perhaps, arise in the principle of decision.” So that the *237 court studiously avoided giving a conclusive opinion upon this point. Looking to the authorities upon , this subject; we shall find that the cargo is not generally deemed to be involved in the same confiscar tionas the ship, unless the owner thereof co-operates in or authorizes the unlawful act.. There are exceptions founded in.the policy of nations, and as it were the necessities of enforcing belligerent rights against fraudulent evasions, where a more strict rule is enforced and the cargo follows the fate of the ship. But these exceptions stand upon peculiar'grounds, and will be found, upon a close examination, to be consistent with, and distinguishable from, the general principle above suggested. Many of the authorities upón this subject have been cited at the bar, and others will be found copiously collected in a note in the appendix to the 2d vol. of Wheat. Rep. p. 37-40.

The present case seems to us fairly to fall within the general principle of exempting the cargo. The owners áre confessedly innocent of all intentional or meditated wrong. They are free from any imputation of guilt, and every suspicion.of connivance with, the master in his hostile acts and wanton misconduct. Unless, then,"there were some stubborn rule, which, upon clear grounds of public policy, required the penalty of confiscation to extend to the cargo, we should be unwilling to enforce it. We know of no such rule. On the contrary, the act of Congress, pointing out, as it does, in this very case, a limitation of the penalty of confiscation to the vessel alone, satisfies our minds that the public policy of our government in cases of this nature is not intended to embrace the cargo. It is satisfied by attaching the penalty to the offending vessel, as all that public justice and a just regard to private rights require. For these reasons, we are of opinion that the decrees condemning the vessel and restoring the cargo, rendered in both the courts below, ought to be affirmed.

There remains' then, only the consideration of the costs, whether the courts below did right in making them exclusively a charge upon the proceeds .of the condemned properly. Costs in the 'admiralty aré in the sound discretion of the court; and no appelláte court should ordinarily interfere with that discretion, unless under peculiar circumstances. Here, no such circumstances occur. The matter of costs is not per se the proper subject of an appeal; but it can be taken notice of only incidentally as connected with the principal decree, when the correctness of the latter is directly before the court. In the present ease the cargo was acquitted, and there is no ground to.im *238 pute any fault to it. If it had been owned by a third person, there would have been no reason for mulcting the owner in costs,' under circumstances like.the present, where it was impracticable to separate the cargo from the vessel by any delivery thereof, unless in a foreign port, and no peculiar cause of suspicion attached thereto. Its belonging to the same owner "might justify its being brought in and subjected to judicial examination and inquiry, as a case where there was probable cause for the seizure and detention. But there it stopped.- The innocence of the owner has been fully established; the .vessel has been subjected to condemnation, and the fund is amply sufficient to indemnify the captors for all their costs and charges. We see no reason why the innocent cargo, under such circumstances, should be loaded with any cumulative burdens.

Upon the whole, we are all of opinion that the decree of the Circuit Court ought to be, and it is affirmed, without costs.

ORDER.

This cause came on to be heard on the transcript of the record froip the Circuit Court of the United States for. the District of Maryland, and was argued by counsel. On consideration whereof, It is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, without costs.

(a)

See 3 Wheaton’s Rep., Appendix, p.

37

to p. 40.