Sheppard v. Taylor
30 U.S. 675 (1831)

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U.S. Supreme Court

Sheppard v. Taylor, 30 U.S. 5 Pet. 675 675 (1831)

Sheppard v. Taylor

30 U.S. (5 Pet.) 675

Syllabus

The ship Warren, owned in Baltimore, sailed from that port in 1806, the officers and seamen having shipped to perform a voyage to the northwest coast of America, thence to Canton, and thence to the United States. The ship proceeded under the instructions of the owners to Conception Bay on the coast of Chili by the orders of the supercargo, he having full authority for that purpose. The cargo had in fact been put on board for an illicit trade against the laws of Spain on that coast. After the arrival of the Warren, she was seized by the Spanish authorities, the vessel and cargo condemned, and the proceeds ordered to be deposited in the royal chest. The officers and seamen were imprisoned and returned to the United States, some after eighteen months and others

not until four years from the term of their departure. The King of Spain subsequently ordered the proceeds of the Warren and cargo to be repaid to the owners, but this was not done; afterwards, the owners, having become insolvent, assigned their claims for the restoration of the proceeds and for indemnity from Spain to their separate creditors, and the commissioners under the Florida treaty awarded to be paid to the assignees a sum of money, part for the cargo, part for the freight, and part for the ship Warren. The officers and seamen having proceeded against the owners of the ship by libel for their wages, claiming them by reason of the change of voyage, from the time of her departure until their return to the United States respectively, and having afterwards claimed payment out of the money paid to the assignees of the owners under the treaty, it was held that they were entitled, towards the satisfaction of the same, to the sum awarded by the commissioners for the loss of the ship and her freight, with certain deductions for the expenses of prosecuting the claim before the commissioners, with interest on the amount from the period when a claim for the same from the assignees was made by a petition.

If the ship had been specifically restored, the seamen might have proceeded against it in the admiralty in a suit in rem for the whole compensation due to them. They have by the maritime laws an indisputable lien to this extent. There is no difference between the case of a restitution in specie of the ship itself, and a restoration in value. The lien

reattaches to the thing, and to whatever is substituted for it. This is no peculiar principle of the admiralty. It is found incorporated into the doctrines of courts of common law.

Freight, being the earnings of the ship in the course of the voyage, is the natural fund out of which the wages are contemplated to be paid, for although the ship is bound by the lien of the wages, the freight is relied on as the fund to discharge it, and is also relied on by the master to discharge his personal responsibilities for disbursements and wages.

Over the subject of seamen's wages the admiralty has an undisputed jurisdiction, in rem as well as in personam, and wherever the lien for the wages exists and attaches upon the proceeds, it is the familiar practice of that court to exert its jurisdiction over them, by way of monition to the parties holding the proceeds. This is familiarly known in the cases of prize and bottomry, and

Page 30 U. S. 676

salvage, and is equally applicable to the case of wages. The lien will follow the ship and its proceeds into whose hands soever they may come by title or purchase from the owner.

In December, 1810, a libel was filed by James Sheppard and others, officers and seamen of the merchant ship Warren, against Lemuel Taylor, Samuel Smith, James A. Buchanan, John Hollins, and Michael McBlair, owners of the merchant ship Warren, claiming wages, they having shipped in 1806, at Baltimore, for a voyage from that port to the northwest coast, thence to Canton, and home to the United States.

The facts of the case, as they appeared in the libel and supplemental libels, petition, and in the depositions and documents filed and taken in the case, were that the ship Warren, of the burden of about six hundred tons, and armed with twenty-two guns, commanded by Andrew Sterrett, sailed from Baltimore on 12 September, 1806. The crew, including the officers and apprentices, consisted of about 112 persons, and were shipped for a voyage designated in the shipping articles, to be from the port of Baltimore to the northwest coast of America, thence to Canton and home to the United States. No other voyage but that expressed in the articles was known to be intended by anyone on board of the Warren, except Mr. Pollock, who was the supercargo of the vessel. There were, however, two sets of instructions, one, those which expressed the voyage as stated, and which were given to captain Sterrett, the other, sealed, private instructions, and which were delivered to Mr. Pollock.

When the ship arrived at a certain latitude, the sealed instructions were opened and were communicated to the captain. These instructions changed the destination of the ship, and the nature and character of voyage. They gave the entire control over the course of the voyage to Mr. Pollock, and from that time she proceeded directly for the coast of Chili to prosecute an illicit and smuggling trade with the Spanish provinces, on the western coast of South America, all trade with those provinces being then notoriously forbidden, under

Page 30 U. S. 677

heavy penalties, unless conducted under a license from the Crown of Spain.

The officers and crew of the Warren protested against this deviation from the prescribed voyage, and captain Sterrett, from disappointed and wounded feelings, disdaining himself to engage in an illicit trade and unwilling to expose his officers and men to its perils and consequences, became partially deranged and shot himself as the Warren was doubling Cape Horn.

Mr. Evans, the chief mate, succeeded in the nominal command of the ship, but Mr. Pollock asserted and maintained the entire control over her, and he ordered her to steer direct for Conception Bay and the port of Talcahuana, on the coast of Chili, where they were to feign distress and ask for an asylum.

The vessel arrived on 20 January, 1807, within a short distance of that port, after an absence from Baltimore of 120, and on her arrival was hailed by the guarda costas of the government. Mr. Pollock answered in Spanish, and took the ship's papers with him on shore, where he had an interview with the commandant of Talcahuana.

During his absence an altercation took place between captain Evans and the Spanish armed vessels, which resulted in the exchange of some guns, but no lives were lost on either side. Mr. Pollock having remained on shore under a flag of truce, on the following day communicated by a verbal message to captain Evans, an order to enter the port, alleging, that the firing on the Warren by the guarda costas had been through mistake, and that all things would be well managed. The crew remonstrated, and proposed to proceed with the ship on the voyage for which they had sailed, and to leave the supercargo on shore. Captain Evans refused to enter the port unless by a written order, which was then sent to him, and he was informed by the messenger that Mr. Pollock was under no restraint whatever.

The Warren then entered the port of Talcahuana, and captain Evans went on shore, and the seamen, under a pretense that their depositions were required relative to the death of captain Sterrett, were taken on shore, twenty at a time, and at once put into prison. The officers and the apprentices being

Page 30 U. S. 678

put on board the ship, proposed to rescue her, and communicated the purpose of Mr. Pollock, who immediately took his baggage and that of captain Evans on shore. Soon afterwards, some Spanish officers came on board the Warren, unbent the sails, and unshipped the rudder.

The officers and crew of the ship were ordered to Conception, and thence were marched to various prisons and dungeons, and suffered captivity from eight months to four years, being permitted to return to the United States at various periods. The apprentices and some of the officers were the first who were allowed to return; their absence from the United States was after an imprisonment of from six to eighteen months.

On the part of the libellants it was alleged that by arrangements between the Spanish commandant and Mr. Pollock, the cargo was smuggled on shore. By a sentence of a court, the vessel and cargo were sold, and the proceeds of the same were ordered to be deposited in the King's Treasury, subject to an appeal interposed by the supercargo. Thus, either by the private arrangements between Mr. Pollock and the Spanish governor, or by the proceedings of the court, the voyage was broken up, and the ship and the whole of the cargo were sold. The cargo appeared to have been peculiarly adapted to the coast of Chili and Peru, and altogether unfit for the northwest coast of America or Canton.

The libellants claimed wages from the time of the sailing of the Warren, to the time of their return to the United States, respectively, deducting the wages advanced, and any sum of money received as wages during absence.

The proceedings in the case, asserted by the libellants to be amply accounted for by various causes, were delayed from 1810 to 1819. In 1819, all the owners became insolvent, and on 13 December, 1819, Lemuel Taylor assigned to Robert Oliver the spes recuperandi of his interest in the Warren, her cargo &c. On the 9 November, 1820, Smith & Buchanan assigned their interest in the Warren and cargo to Elicott and Meredith, trustees, for the use of the Bank of the United States at Baltimore, and, on 15 May, 1821, Hollins & McBlair assigned their interest in said vessel, cargo, &c., to the Union Bank of Maryland.

Page 30 U. S. 679

The owners of the ship Warren and cargo, having made application to the Crown of Spain for the restoration of the proceeds of the same, which were under the decree of the court condemning the same to be deposited in the royal treasury, the following proceedings took place:

"COPY OF THE ROYAL ORDER OF RESTITUTION"

"Most Excellent Sir -- In the month of September, 1806, the ship called the Warren, belinging to Samuel Smith, Buchanan, Hollins, McBlair, and Lemuel Taylor, of Baltimore, sailed from that port, under the command of Andrew Sterrett, and laden with sundry merchandise for Canton in China. In the month of December following, after the vessel and crew had experienced various misfortunes, they were in the latitude of Conception in Chili, when finding it impossible to continue the voyage, they were obliged to take shelter in some port contiguous to that of Talcahuana, on 20 January, 1807. The commander of the port gave the vessel permission to enter, which she had scarcely done, however, before she was taken possession of by troops, and her cargo seized, under the pretense of her being a smuggler. This was followed by a sentence for the confiscation and sale of the goods, which was carried into execution, notwithstanding the protest of the supercargo, and the proceeds, amounting to about $300,000, deposited in the royal chests, to await the decision of the appeal carried before and received by the Supreme Council of the Indies. Smith and his partners, having received intelligence of this, made a complaint before the Senate in Maryland, who looking only to the registers of the custom house, from which it appeared that the vessel had cleared out for China, declared the confiscation unjust, and gave the complainants permission to detain by way of indemnity, any property which might be in that country belonging to the Spanish government. Don Luis de Onis, the Spanish minister in the United States, received unofficial information of this decision, and knowing that there had not been sufficient cause for the sentence of confiscation, and desiring to prevent the disagreeable consequences which might arise from claims, made an agreement with Smith and his companions that he would cause to be returned to them in this capital the

Page 30 U. S. 680

amount of the proceeds of the cargo of the ship Warren, which had been deposited in the Treasury, and that he would permit then to send out a vessel, laden with a small cargo of licit merchandise and some tobacco, upon which the customary royal duties were to be paid, for the purpose of prosecuting it, upon which they were to acknowledge themselves indemnified for all the losses and expenses resulting from the voyage. The King, having been gradually informed of what has been related, notwithstanding that the ministry here had received no intelligence of the confiscation in question, has thought proper for good and prudential reasons to ratify without delay the agreement made by the minister Onis with Smith, Buchanan, and their companions, and has desired that instructions should be sent to Your Excellency, to have the ship Warren and her cargo, or the amount produced from their sale, delivered to the agents of those persons, and to permit them to import another small cargo of licit merchandise, and some leaf tobacco, upon which they must pay the royal duties, and take the value of it in silver or produce, paying duties in like manner. Which I notify to Your Excellency, by His Majesty's orders, for your information and in order that you may issue the necessary orders for its fulfillment. God preserve Your Excellency many years. Madrid, 13 June, 1815."

"LANDIZABAL"

"To the Viceroy of Peru"

"PETITION"

"Most Excellent Sir -- We, Samuel Smith and Anthony Faulac, supercargo of the American ship Sydney, on behalf of the owners of the ship Warren and cargo, and by virtue of their power of attorney which we formally exhibit, respectfully appear before Your Excellency, and say that by a royal order of 13 June, 1815, His Catholic Majesty has ordered restitution to be made of the said ship Warren and her cargo, and notwithstanding that she was sentenced to be confiscated, has been pleased, upon just and prudential considerations, to absolve her, and decree her restoration. Your Excellency, in a decree of the 9 October, 1815, commanded that the said royal order should be obeyed and fulfilled, and in order that the necessary measures conductive to the restitution

Page 30 U. S. 681

of ship and cargo might be adopted, commanded the original order to be deposited in the archives and a certified copy to be made of it and annexed to the records on the case."

"The immediate execution of this royal order is much to be desired under present circumstances as it is necessary that we should return to the United States, where we must notify the result both to Don Luis de Onis, the Spanish minister plenipotentiary, and to the owners, for whom we are to recover the money from the royal treasury. For the fulfillment of the agreement, ratified by the Spanish sovereign, and of the decree of restitution sent to Your Excellency, there is nothing more requisite then the tenor of the royal order, which is sufficiently intelligible in its origin and object. Any delay will occasion a serious injury, and it was from His Catholic Majesty's desire to avoid this that he ordered the restitution, even before he had received official notice of the confiscation. The ship Warren was sold in this capital; the purchaser's title to the property, which is the record of the proceedings on her confiscation, must therefore have been exhibited. The value of the cargo which His Catholic Majesty orders to be restored is estimated in the royal order at near $300,000; which can by some means or other be procured; it being a matter of indifference to the owners whether it was deposited in the chests here, or in any others of the Kingdom. Under the impression, therefore, that restitution ought to be made by the royal treasury, without any further testimony than the appraisement of the vessel and cargo, in conformity with the just and wise considerations which induced His Majesty to decree the restoration and delivery, we implore Your Excellency that, on view of the records relative to the sale of the ship Warren, and knowing the sum at which her cargo was valued; you will be pleased to draw a bill against the officers of the royal treasury, and represent to them the serious injuries which would result from any delay in fulfilling the royal order issued under such circumstances. Wherefore we pray and supplicate Your Excellency that considering as duly exhibited the power of attorney, and in consequences of what has been set forth; you will be pleased to order an authenticated copy of the royal order, the fulfillment of which is required, to be annexed to the records of the sale of the ship Warren,

Page 30 U. S. 682

and on view of them issue the orders for which we pray, as is just, and as we expect from Your Excellency's equity."

"SMITH, NICHOLAS, ANTHONY FAULAC"

"ORDER"

"Lima, 21 March, 1817"

"Let it be filed with the records of the subject, and be been by His Majesty's officer of the Exchequer, and let the tribunal of accompts make a report."

"HIS EXCELLENCY'S RUBRICK"

"Acebal"

"REPORT"

"Most Excellent Sir -- The tribunal of accompts, in compliance with Your Excellency's order of this date, has examined the petition of Don Samued Smith and Don Antonio Faulac, filed with the records which originated in the letters written by the Spanish counsel in Baltimore respecting the fitting out in that port, of the ship Warren, for the purpose of carrying on an illicit commerce in these seas, and all that it can represent is that the said vessel was captured off the coasts, or in some port of the Kingdom of Chili, and all the proceedings in such cases had, without this government being informed of anything further than the sale of the vessel, which was sent hither for that purpose by the president of Chili, as will appear by his official letter of 14 January, 1808, registered in folio 22, and the proceeds deposited, at his request to the credit of his treasury. The vessel was sold for the sum of $25,000, to Don Xavier Maria Aguirre, and the amount deposited in the royal chests in this capital, on 4 February, 1819, and along with $263,285 six reals, which had been received from various sources on deposit to the credit of the Chilian Treasury, was remitted to the Peninsula, in the ships Primero and Joaquina in consequence of an official letter from the president of 12 April, 1809, and in obedience to an order of this vice-regal government, dated 13 May of the same year. Authenticated copies of which are enclosed along with an account, No. 585, from the office of the royal chests in this capital. Your Excellency on

Page 30 U. S. 683

view of all this, and of the royal order of 13 June, 1815, in which the proceeds of the vessel and cargo are ordered to be restored to the claimants, will resolve whatever you may deem most conductive to the royal service. Tribunal, 21st May 1817."

"THE MARQUIS DE VALDELUIES"

"LEON DE ASTOLAQUINE"

"JOAQUIM BONET"

"REPORT"

"Most Excellent Sir -- The officer of the Exchequer having examined the petition of Samuel Smith and his agents for the ship Warren relative to the royal order of 13 June, 1815, in which His Majesty commands that restitution should be made to them in this capital of the proceeds of the cargo of the said vessel, which were deposited here, states that from the records of the only proceedings in the case which were had before this government, which are ready to be exhibited, it appears that the seizure and confiscation took place in Chili, and that the amount of the proceeds of the vessel only was deposited in the chests here. It results therefore that the supposition in the royal order that the proceeds of the cargo had been deposited here is erroneous. And as moreover the impoverished condition of this treasury and its indispensable disbursements will not allow it to refund so large an amount, and as the royal order has so far been complied with as to permit the entrance of the vessel which they brought here, Your Excellency might find it expedient to give His Majesty a knowledge of these facts by sending him an authenticated copy of the records in order that he may determine according to his sovereign pleasure."

"PAREJA"

"Lima, 24 May, 1818"

"ORDER"

"Lima, 3 June, 1817"

"Having seen the foregoing, let the records be carried to the superior board of the royal revenue in order that it may determine as soon as possible what course ought to be pursued."

"HIS EXCELLENCY'S RUBRICK"

"Acebal "

Page 30 U. S. 684

The owners of the ship Warren and cargo and their assignees presented memorials for indemnity to the commissioners of the United States, appointed under the Florida Treaty of 22 February, 1819, and thereupon the commissioners made the following award:

"SHIP WARREN, EVANS"

"24 April 1824"

"Thomas Ellicott and others, claimants"

"The board having heretofore received, examined, and allowed this claim as valid, this day proceeded to ascertain the amount thereof, and do award to the claimants the sum of $184,162.35 (less the unclaimed interest of Bonnifils, a foreigner, of $15,011.37), in full, for the loss sustained for the seizure, confiscation, and sale of this vessel and cargo by the Spanish authorities at Talcahuana in 1806, the proceeds of which sale were ordered to be paid to the claimants by His Catholic Majesty in 1815, which sum is to be thus divided: "

No. 471. -- To Robert and John Oliver, as trustees

of Lemuel Taylor . . . . . . . . . . . . . . . . . $ 63,920.88

Ellicott & Meredith, as trustees of Smith and

Buchanan . . . . . . . . . . . . . . . . . . . . . 45,034.14

Union Bank of Maryland, as trustees of Hollins

and McBlair. . . . . . . . . . . . . . . . . . . . 40,030.34

John Stiles, as executor of George Stiles. . . . . . 20,015.17

The unclaimed interest of Bonnifils. . . . . . . . . 15,011.37

-----------

$184,011.90

"True copy from the record,"

"JOSEPH FORREST, Clerk"

Eight and one-third percent, or one-twelfth in all cases, was abated from the gross amount. The items forming the aggregate sum allowed by the commissioners in the case of the ship Warren, Evans, master, were as follows:

Page 30 U. S. 685

For the value of the vessel. . . . . $ 25,000.00

Cargo. . . . . . . . . . . . . . . . 125,131.93

Taylor's adventure . . . . . . . . . 4,025.83

Premium, twelve percent. . . . . . . 16,144.59

Freight one-third off. . . . . . . . 13,860.00

-----------

$184,162.35

Deduct therefrom . . . . . . . . . . 150.45 -----------

$184,011.90

The last final report, made to the Department of State of the United States on 8 June, 1824, by the commissioners under the Florida treaty, contained the following general observations:

"In making such allowances to underwriters, the commission was well aware that its effects would be to allow them more than they had lost, by the amount of the premium received from the party insured, which premium he had voluntarily paid and must have lost in any event; so too, in making the allowance of freight, the commission was well aware that the full wages of seamen had not been paid, probably, in any of the cases where such freight was given. But in these and many other cases which occurred, the board having ascertained the full amount of the loss, distributed this amount so ascertained amongst the different parties claiming it before them and seeming to have a right to receive it (no matter in what character), without deciding or believing itself possessed of the authority to decide upon the merits of conflicting claims to the same subject. To whom of right the sum thus awarded, when paid, may belong or for whom, how, or in what degree the receiver ought to be regarded as a trustee of the sum received were questions depending upon the municipal laws of the different states of the union, the application of which to the facts existing in any case the board did not feel itself authorized to make, and therefore abstained from instituting any inquiry as to the facts necessary to such a decision. These remarks the commission think it proper thus to state, lest their award may be considered as barring and finally settling pretensions, into which this board have in truth neither made or believed itself authorized to make any examination whatever, but have purposely left open for the adjudication of others who will have better means of ascertaining the facts. "

Page 30 U. S. 686

Answers were put in by the owner of the Warren and cargo.

After the assignments made by them, answers were filed by the several assignees.

The answer of Robert Oliver denies the jurisdiction of the district court of the United States over the funds in his hands under the assignment. It states the assignment made to him by Lemuel Taylor on 13 December, 1819, of his interest in the ship and cargo, and that the claim was prosecuted before the commissioners under the Florida treaty, and the net sum of $58,594.32 was received; all knowledge of any agreement between the owners of the Warren and cargo with the seamen is denied.

The Bank of the United States answered and denied the jurisdiction of the court, and also all knowledge of the alleged contract between the original parties to the cause. The answer states that the firm of Smith & Buchanan executed a deed of trust to Ellicott & Meredith on 9 November, 1820, being an assignment of their interest in the ship and cargo in trust for the Bank of the United States in the first instance, and that the trustees had received about $50,000. That at May Term, 1825, of the Circuit Court of the United States, the bank filed a bill in equity calling on the trustees to pay them the money so received, and the same was paid into court, and the libellants filed a petition in the cause praying the court to retain for them so much of the said sum as they should prove themselves entitled to. The circuit court directed the sum received by the trustees to be deposited in the Bank of the United States.

Ellicott & Meredith, assignees in trust of Smith & Buchanan, answered, stating the assignment and the payment of the money received by them. The Union Bank of Maryland answered, protesting against the jurisdiction of the court and stating the assignment to the bank by Hollins & McBlair and that they were ignorant of the claims of the libellants.

On 16 March, 1827, the district court dismissed the libel and petition, and the libellants appealed to the circuit court. In that court on 20 May, 1828, the decree of the circuit court was affirmed and the libellants appealed to this Court. It was understood, that both in the district and circuit courts, the decrees were entered pro forma.

Page 30 U. S. 707

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