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THE ELEANOR, 15 U. S. 345 (1817)
U.S. Supreme Court
The Eleanor, 15 U.S. 2 Wheat. 345 345 (1817)
15 U.S. (2 Wheat.) 345
A libel against the commander of a squadron calling on him to proceed to adjudication or to make restitution in value of a vessel and cargo detained for search by the captain of a frigate belonging to the squadron and lost while in his possession. Libel dismissed.
The commander of a squadron is liable to individuals for the trespasses of those under his command in case of positive or permissive orders or of actual presence and cooperation. But quaere how far is he responsible in other cases?
Where a capture has actually taken place, with the assent, express or implied, of the commander of a squadron, the prize master may be considered as a bailee to the use of the whole squadron, who are to share in the prize money, and thus the commander may be made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the squadron.
The commander of a single ship is responsible for the acts of those under his command, as are likewise the owners of privateers for the conduct of the commanders appointed by them.
To detain for examination is a right which a belligerent may exercise over every vessel except a national vessel which he meets with on the ocean.
The principal right necessarily carries with it all the means essential to its exercise; among these may sometimes be included the assumption of the disguise of a friend or an enemy, which is a lawful stratagem of war. If, in consequence of the use of this stratagem, the crew of the vessel detained abandon their duty before they are actually made prisoners of war and the vessel is thereby lost, the captors are not responsible.
Whenever an officer seizes a vessel as prize, he is bound to commit her to the care of a competent prize master and crew, not because the original crew, when left on board (in the case of a seizure of the vessel of a citizen, or neutral), are released from their duty without the assent of the master, but from the want of a right to subject the captured crew to the authority of the captor's officer. But this rule does not extend to the case of a mere detention for examination, which the commander of the cruising vessel may enforce by orders from his own quarter deck, and may therefore send an officer on board the vessel detained in order more conveniently to enforce it without taking the vessel out of the possession of her own officers and crew.
The modern usages of war authorize the bringing one of the principal officers of the vessel detained on board the belligerent vessel, with the papers, for examination.
This schooner, with her cargo, the property of the claimant, on a voyage from Baltimore to Bordeaux, fell in with the President and Congress frigates on the night of 16 October, 1813.
Commodore Rodgers was the commander of the President frigate, and the commodore and commander of the squadron composed of those two ships, then in company. Captain Smith, deceased, and charged in the libel as a co-defendant, commanded the Congress.
On the Eleanor being discovered by the two frigates, she was chased by the Congress and overhauled. The President stood on her course, being out of sight at the time she was overhauled and when she was subsequently dismasted, and so continuing until the signal guns were fired from the schooner. The
master, supercargo, and the officers and crew of the Eleanor, on seeing the frigates, considered them British cruisers, and when they found she could not escape them, concluded they were captured by the enemy. This produced a very general determination on the part of the crew to take no further concern in the navigation of the schooner. When boarded by lieutenant Nicholson of the Congress, the schooner was in the state of confusion to be expected from such a determination. He ordered the master to take one of his mates and his papers and go on board the frigate. The captain, after giving some orders to his second mate to adjust the sails of the schooner, which were not complied with, went with his first mate and papers in the frigate's boat to the Congress. Lieutenant Nicholson, on being asked by a boy what frigate it was, said it was the Shannon; immediately afterwards he undeceived the supercargo, whom he recognized as an old acquaintance, but said he was ordered not to make himself known, and therefore requested the supercargo not to disclose it. Upon endeavoring to restore order, and to provide for the safe navigation of the schooner, he could get no assistance from the crew (who refused to obey his orders, considering him a British officer) except from the second mate, and on observing this, he disclosed the name of the frigate, and he, the supercargo, and the mate, assuring the crew they were not prisoners, endeavored to prevail on them to return to their duty; they persisted in refusing, in consequence of which (the sea being tempestuous and the weather squally) a flaw struck
the vessel and both her masts went over. Lieutenant Nicholson, the mate, and supercargo, endeavored to save the vessel, but the crew would not obey either of them. She was afterwards assisted as far as possible by the frigates, but finally abandoned and lost.
The libel was filed against Commodore Rodgers and Captain Smith alleging that the loss of said vessel and cargo was owing
"to the deception unlawfully practiced on her crew by the officers of the said squadron, and through the want of care, inattention, and gross negligence of the officer of said frigate Congress in the navigating said schooner, of which he had taken and then had command,"
and praying for a monition against them to proceed to adjudication or to show cause why restitution in value should not be decreed.
The district court considered this allegation supported by the proof, and that Commodore Rodgers was answerable as commander of the squadron, and decreed against him for $43,250, the value of said vessel and cargo. The circuit court affirmed the decree pro forma, and thereupon the cause was brought by appeal to this Court. After the filing of the libel and before the decree in the district court, the death of Captain Smith, which had intervened, was suggested on the record.
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