Blanchard v. Haven

3 F. Cas. 625, 1 Mason C.C. 346

• Court: U.S. Circuit Court for the District of New Hampshire
• Decided: May 15, 1818
• Status: Published

Opinion

STORY, Circuit Justice.

This case differs in several important particulars from that of The Brutus [Case No. 2,060], There the ■cruise was attempted to be broken up in a foreign port by the officers and crew, without the consent of the owners of the privateer. And it was held, that the officers and crew could not set up their own wrongful act as a dissolution of the cruise. It was material also in that case, that the homeward voyage was within the scope of the •original articles; and the cruise was in fact •continued by the original crew. It is true, that by the return of the privateer to Portsmouth in distress, the cruise of the Macedonian was not legally terminated. But it ■was in fact broken up by the desertion of the crew. The owners did not concur in that wrongful proceeding. They acted with good faith; and certainly had a right to em-pioy their own vessel on a new cruise, when the former cruise was entirely abandoned by the officers and crew. But even if the owners had wrongfully put an end to the cruise at Portsmouth, I do not know, that it would have helped the plaintiff. He might then have been entitled to an action for damages for the injury sustained by him by such wrongful act. But it seems to me, that the owners have a right to the possession and use of their own vessel; and that from the nature of the service, they have a right to break up a cruise in the home port, taking the consequences of such act, if it be a breach of any covenant', into which they have entered. Suppose the case of an agreement in the-nature of a charter-party for a voyage, are not the owners at liberty to prevent their vessel from proceeding on the voyage, taking their chance of an action for the breach of their contract? Does such a contract devest the. legal ownership .of the property, during the voyage? But in the present case, it is conceded, that the owners are in no default. The first cruise was in fact terminated. New engagements were entered into for a new cruise by parties, who were competent to make such engagements. How then can the court say, that the second cruise was a continuation of the first? The first cruise was abandoned, wrongfully indeed, by the original crew, but still in point of fact and law completely abandoned.

This is an attempt to claim prize proceeds, earned in the second cruise, to which the plaintiff was no party, either in law or in fact. He entered into no contract with reference to it; nay, he declined having any thing to do with it. It is, in fact, an action for damages, for the illegal act of breaking up the first cruise, in the shape of an action for money had and received. As to the shares of the owners and the new crew engaged in the second cruise, it is admitted, that the plaintiff is not entitled to claim any deduction. But he claims to deduct ifrom the shares of each of the crew shipped on the first and second cruises, an amount equal to the shares he would have been entitled to, if the prizes had been made in the first cruise, or if the first cruise had not been wrongfully broken up by their desertion. Undoubtedly by their desertion they forfeited all claim to the prizes captured on the first cruise. And it may be, that an action for damages lies against them in favor of the plaintiff. But certainly there is no specific claim or lien on their property earned in the second cruise, to respond for those damages. Suppose, instead of shipping in the Macedonian a second time, they had shipped in some other privateer, can there be any pretence, that the prize money earned in such a cruise could have been held to respond these damages? In what possible way could it be considered as money had and received to the use of the plaintiff? In point of law, I do not distinguish between the case put and the case at bar. The cruises were as distinct, as if they had been made in different privateers.

On the whole, the district judge and myself are clearly of opinion, that the action cannot be sustained. We adhere to the case of The Brutus [supra] and feel no inclination to abandon any of its positions. But this case is not governed by any principle decided in that. Let the plaintiff be non-suited according to the agreement of the parties.