A collector of customs is not personally liable for a tort
committed by his subordinates in negligently keeping the trunk of
an arriving passenger on a pier instead of sending it to the public
store, so that it was destroyed by fire where there is no evidence
to connect the collector personally with the wrong or that the
subordinates were not competent or were not properly selected for
their positions
Page 127 U. S. 508
This is an action at law, brought in the city court of the City
of New York, by Emilie Sichel, an infant, by Joseph Sichel, her
guardian
ad litem, against William H. Robertson, collector
of customs for the port and collection district of New York, and
removed by the defendant into the Circuit Court of the United
States for the Southern District of New York.
The object of the suit was to recover damages for the loss of
the contents of a trunk belonging to the plaintiff, who was a
passenger by the steamship
Egypt, of the Inman Line, from
Liverpool, and arrived at New York at the pier of the ship, on the
31st of January, 1883. She was sixteen years of age, and was a
first-cabin passenger. She made a baggage declaration, under oath,
which stated that she had two trunks and two bags, containing
"wearing apparel in actual use and personal effects not
merchandise." She declared "nothing new or dutiable." Her baggage
was examined on the dock, and one trunk was detained by the customs
officers, who gave her a receipt therefor, signed by an inspector,
which stated that the inspector had sent the one trunk, for
appraisement, to the public store, under a baggage permit. She was
directed by the officers to call, the next day at the public store
to receive the trunk. This trunk contained her personal effects,
which cost her $400. The only thing in the trunk not wholly
intended for her own use was ten pounds of chocolate, valued at
about $2.50, part of which she ate, and she intended to eat the
balance in company with some of her young friends. This was her
first visit to America. She was a native of Germany, and at the
time of her arrival was unfamiliar with our language and customs.
She did not know and could not understand the nature and effect of
the baggage declaration which she was asked to sign, and it was not
explained to her. In the trunk with her clothing and wearing
apparel were some paper boxes containing some brass ornamental
jewelry on cards, given to her abroad of the value in all of about
one dollar, some of which she had worn, some old lace curtains, six
tablecloths, and twelve napkins, a gift from her mother, the ten
pounds of chocolate, and three corsets, one of which she had worn.
On the next day, the
Page 127 U. S. 509
usual order was made, on an application signed by the plaintiff,
for an appraisement of the contents of the trunk. The plaintiff
demanded the trunk at the public store, but did not receive it
because it had been destroyed by fire on the pier of the ship on
the night of January 31, 1883. It was proved on the trial that on
the morning after the arrival of the ship, the deputy collector
issued an order to the clerk in the collector's department at the
custom house for the appraisal of the trunk, and that there could
be no appraisal without a permit from the collector.
At the close of the plaintiff's case, the defendant asked the
court to direct a verdict for him on the ground that, the action
being one for personal negligence, the plaintiff had not brought
home to the collector personally any connection with the trunk at
the time it was destroyed, and that if any negligence was to be
imputed to the subordinate officers of the customs, such negligence
could not be imputed to the collector. The court refused to grant
the motion, and the defendant excepted.
Evidence was then introduced on the part of the defendant
tending to show that the inspector on the dock who examined the
trunk discovered what in the exercise of his discretion he
determined to be dutiable articles; that he reported to his
superior officer that he thought the trunk contained dutiable
articles, and that officer told him to see what else he could find;
that he found other dutiable articles; that he attempted to find an
appraiser to appraise and assess duties upon those articles, but
did not find one; that he reported to the staff officer having
charge of the passengers and their baggage from that steamer, and,
under his advice, marked the trunk for the public store, to be
examined by the proper examiner and have the duties assessed under
a section of the regulations for the government of officers of the
customs under the superintendence and direction of the surveyor of
the port of New York, which was admitted in evidence, and was as
follows:
"In the absence of the entry clerks or appraiser, dutiable
articles taken from passengers' baggage will be sent by the
inspector, as soon as possible, to the public store, and the
Page 127 U. S. 510
passenger will be furnished by the inspector with the usual
baggage certificate;"
that, the trunk having been thus marked for the public store,
and a receipt given to the plaintiff, it was put into the charge of
the discharging officers of the vessel; that the inspectors were
allowed to send goods to the public store for appraisement only
through a custom house cartman; that the discharging officer who
received the plaintiff's trunk did not send it to the storehouse
because there was no cartman on the pier to take it away, and none
came to do so, though an effort was made to procure one; that the
trunk remained on the pier under his custody, and was totally
consumed by fire on the night of the 31st of January, the officers
who were there being driven away by the flames, and that the fire
occurred between 2 and 3 o'clock A.M. of the day following that of
the arrival of the steamer.
It also appeared in evidence that, under article 431 of the
customs regulations, it was the duty of the collector, on the
arrival of any steamer of a regular line from a foreign port, to
detail an experienced entry clerk, who, with a similar clerk to be
designated by the naval officer and an assistant appraiser or
examiner to be detailed by the appraiser, should, together with the
inspector on board, examine all the passengers' baggage, place the
dutiable value upon the same, and, if dutiable articles were found,
appraise the same and assess the duty thereon. It also appeared
that all those officers were on the dock on that day. The following
regulations were then put in evidence:
"The Laws and Regulations for the government of Officers of
Customs under the Superintendence of Surveyors of Ports. 1877."
"Art. 104. Whenever any trunk or package brought by a passenger
as baggage contains articles subject to duty and the value thereof
exceeds $500, or if the quantity or variety of the dutiable
articles is such that a proper examination, classification, or
appraisement thereof cannot be made at the vessel, the trunk or
package will be sent to the public store for appraisement."
"Art. 117. In the absence of the entry clerk or
Page 127 U. S. 511
appraiser, dutiable articles taken from passengers' baggage will
be sent by the inspector as soon as possible to the appraiser's
store, and the passenger will be furnished by the inspector with
the usual 'baggage certificate,' which will be in the following
form:"
"
Inspector's certificate of goods sent to public store
under baggage permit."
"PORT OF _____, _____, 18__"
"
On board ship"
" I have sent to public store under 'baggage permit' the
following articles said to belong to _____."
" (Describe the articles.) ______ ________"
"
Inspector"
By the government's report in this case, the value of the
property in Miss Sichel's trunk was alleged to be $100 only, while
the plaintiff did not claim the value to be over $400. Peterson,
the government inspector, did not make a written report of the case
to the government until about two months after the arrival of the
steamer. He did this at the request of the surveyor, and it was no
part of his duty to make it as requested. The same inspector,
Peterson, had signed and issued the certificate on the baggage
declaration. There was an appraiser on the pier in question some
time on that day. The trunk in question was the only seizure or
detention of passengers' baggage made on that dock on the day in
question.
The defendant himself, being put upon the stand and duly sworn,
testified that he was the collector of the port of New York; that
he had in the neighborhood of 1,200 subordinates under him; that
approximately the average annual importations into the port of New
York, passed through the custom house, were of the value of five
hundred millions of dollars; that he knew nothing about the trunk
imported by Emilie Sichel by the
Egypt on January 31st at
the time of its importation; that he was not on the dock at the
time; that it was no part of his duty to pay any attention to the
actual arrival of the passengers' baggage, or passing
Page 127 U. S. 512
it through the custom house, or ordering it to the public store,
or examining it to see if there were any dutiable goods, or to have
anything to do with it; that, as a matter of fact, he had nothing
to do with it, and that the first time his attention was called to
the matter of this trunk was long after the fire, some time in
September, 1883.
The evidence being closed, the defendant moved the court to
direct a verdict in his favor upon the same grounds on which the
motion was made at the close of the plaintiff's case -- that is to
say, that there was no evidence in the case to connect the
defendant with the destruction of the trunk; that, in the case of a
public officer, the doctrine of law
respondeat superior
did not apply, and that before there could be any recovery from the
public officer, it must be shown that he was personally responsible
himself, and that the negligence was his own act. The court refused
to grant this motion, and the defendant excepted.
The defendant then requested the court to charge as follows:
"1. That a public officer is not responsible for the negligence
of his subordinates."
"2. That the defendant is liable only for the neglect of some
duty devolved upon him personally, and not for the neglect of duty
of any other person."
"3. That unless the jury find that the loss of this trunk was
the direct result of some personal carelessness or negligence on
the part of the defendant, there can be no recovery."
"4. That it is not sufficient to show that the loss may have
been the result of negligence on the part of the collector. It is
necessary to show that it was."
"5. That the jury cannot find a verdict in favor of the
plaintiff if they find that the loss of this trunk was due to the
personal negligence, or violation of statutes or regulations, on
the part of the customs officers other than the defendant
personally."
"6. That the inspector who examined plaintiff's trunk, having
found therein what he believed to be dutiable articles, was obliged
to turn said trunk over to others of the officers of the customs
for appraisement and assessment of duty, and
Page 127 U. S. 513
until such appraisement and assessment of duty and the payment
of the duty as assessed, the plaintiff was not entitled to the
possession of the trunk."
"7. That the defendant is not responsible in this action for the
withholding the plaintiff's trunk and its contents."
"8. That if the customs officials at the vessel misinterpreted
their duty and did an act which was in law a trespass or
conversion, the defendant is not responsible, he not having been a
party to the wrong interpretation of duty acted on by the customs
officers at the vessel."
"9. That the defendant is not responsible for the trespasses,
conversion, or other faults of his subordinates committed by them
even in the line of their duty unless he was personally a party to
the same."
"10. That the law, as provided in § 2652 of the Revised
Statutes, made it the duty of the customs officers at the vessel by
which the plaintiff's trunk was imported, to execute and carry into
effect all instructions of the Secretary of the Treasury relative
to the execution of the laws."
"11. That it appears by the evidence in this case that one of
the instructions by the Secretary for the guidance of the officers
at the vessel in which the plaintiff's trunk came was a provision
that whenever any trunk or package brought by a passenger as
baggage contains articles subject to duty, the value whereof
exceeds five hundred dollars, or, if the quantity or variety of
dutiable articles is such that the proper classification and
examination for appraisement thereof cannot be made, the trunk or
package will be sent to the public store for appraisement."
"12. That this instruction of the Secretary had and has the
force of law for the facts in this case."
"13. That the instructions devolved upon the customs officials
at the vessel a discretion to determine whether the quantity and
variety of the dutiable articles was such that the proper
classification and examination for appraisement thereof could not
be made at the vessel, and, if they determined it could not be, to
send the trunk and its contents to the public store for
appraisement. "
Page 127 U. S. 514
"14. That in the exercise of this discretion, those officers,
and the collector as their superior, are not responsible for any
error of judgment in making the determination whether the quantity
or variety of the dutiable articles was such prior to sending the
trunk to the public store."
"15. That the officers at the vessel, and the collector as their
superior, can, if at all, only be held responsible for bad faith in
the exercise of the discretion thus devolved upon them by the
regulation established by the Secretary, under the law."
The court charged the jury that if one of the subordinate
officers of the customs, in the course of the performance of his
duty, did an absolute wrong to the plaintiff such as to take her
trunk from her and keep it from her when she wanted it and was by
law entitled to it, the defendant would be liable. The defendant
excepted to this charge. The court gave further instructions which
bore upon the matters set forth in the defendant's requests to
charge, but which, in the view we take of the case, it is not
important to notice. The bill of exceptions states that the court
did not comply with the defendant's requests to charge further than
as appears by the charge as stated, and that the defendant excepted
to the refusal to charge as to each request separately, so far as
the court did refuse.
The jury found a verdict for the plaintiff for $459. The court
ordered that a certificate of probable cause be entered, and on the
verdict, with costs added, a judgment was entered for the plaintiff
for $502.96, to review which the defendant has brought a writ of
error.
MR. JUSTICE BLATCHFORD, after stating the case as above
reported, delivered the opinion of the Court.
We are of opinion that there was error in the charge of the
court, and that the defendant was not liable for the wrong, if any,
committed by his subordinates, on the facts of this case.
Page 127 U. S. 515
There is nothing in the evidence to connect the defendant
personally with any such wrong. No evidence was given that the
officers in question were not competent or were not properly
selected for their respective positions. The subordinate who was
guilty of the wrong, if any, would undoubtedly be liable personally
for the tort, but to permit a recovery against the collector on the
facts of this case would be to establish a principle which would
paralyze the public service. Competent persons could not be found
to fill positions of the kind if they knew they would be held
liable for all the torts and wrongs committed by a large body of
subordinates in the discharge of duties which it would be utterly
impossible for the superior officer to discharge in person.
This principle is well established by authority. It is not
affected by the fact that a statutory action is given to an
importer to recover back in certain cases an excess of duties paid
under protest, nor by the fact that a superior officer may be held
liable for unlawful fees exacted by his subordinate where lawful
fees are prescribed by statute, and where such fees are given by
law to the superior, or for the act of a deputy performed in the
ordinary line of his official duty as prescribed by law. The
government itself is not responsible for the misfeasances or wrongs
or negligences or omissions of duty of the subordinate officers or
agents employed in the public service, for it does not undertake to
guarantee to any person the fidelity of any of the officers or
agents whom it employs, since that would involve it, in all its
operations, in endless embarrassments and difficulties and losses,
which would be subversive of the public interests. Story on Agency
� 319;
Seymour v. Van Slyck, 8 Wend. 403, 422;
United States v.
Kirkpatrick, 9 Wheat. 720,
22 U. S. 735;
Gibbons v. United
States, 8 Wall. 269;
Whiteside v. United
States, 93 U. S. 247,
93 U. S. 257;
Hart v. United States, 95 U. S. 316,
95 U. S. 318;
Moffat v. United States, 112 U. S. 24,
112 U. S. 31;
Schmalz's Case, 4 Ct.Cl. 142.
The head of a department or other superior functionary is not in
a different position. A public officer or agent is not responsible
for the misfeasances or position wrongs, or for the nonfeasances or
negligences or omissions of duty, of the
Page 127 U. S. 516
subagents or servants or other persons properly employed by or
under him in the discharge of his official duties. Story on Agency
� 319.
In
Keenan v. Southworth, 110 Mass. 474, it was held
that a postmaster was not liable for the loss of a letter
occasioned by the negligence or wrongful conduct of his clerk. The
court said:
"The law is well settled in England and America that the
Postmaster General, the deputy postmasters, and their assistants
and clerks, appointed and sworn as required by law, are public
officers, each of whom is responsible for his own negligence only,
and not for that of any of the others, although selected by him and
subject to his orders."
The court cited, to sustain this view,
Lane v. Cotton,
1 Ld.Raym. 646, 12 Mod. 472;
Whitfield v. Le Despencer,
Cowp. 754;
Dunlop v.
Munroe, 7 Cranch 242;
Schroyer v. Lynch, 8
Watts 453;
Bishop v. Williamson, 11 Me. 495;
Hutchins
v. Brackett, 2 Fort. (N.H.) 252.
To the same purport are
Bailey v. Mayor, 3 Hill 531;
Conwell v. Voorhees, 13 Ohio 523, 543; Story on Bailment
�� 462, 463; 1 Bell, Com. 468; 2 Kent, Com., 4th ed., 610, 611.
The very question here involved came before the Circuit Court of
the United States for the Southern District of New York, in the
case of
Brissac v. Lawrence, 2 Blatchford 121, in June,
1850. The defendant was the collector of the port of New York.
Imported goods belonging to the plaintiff had been deposited in a
customhouse warehouse, and were either lost or mislaid there or
were delivered to some person not entitled to them. At the trial it
was sought to show carelessness on the part of the defendant, as
the head of the customhouse department, in the manner in which the
books of the warehouse were kept and also that the bookkeeper was a
person of intemperate habits and unfit for the situation. On the
other hand, it was proved that the books were kept in conformity
with the mode usually adopted at the time for keeping books of that
kind, that the intemperate bookkeeper had been discharged, and
that, during a period of nineteen months, out of two hundred
thousand packages of goods which had
Page 127 U. S. 517
been received at the warehouse in question, only two packages
had been lost. Mr. Justice Nelson, in charging the jury, submitted
to them the question whether the collector had been guilty of
personal negligence in respect to the goods. In the course of the
charge, the court said:
"The collector is not personally responsible for the negligence
of his subordinates in the customhouse department, and therefore he
is not responsible for the negligence of persons employed in the
warehouse department. . . . In order to charge the defendant with
the loss, it is necessary that the plaintiffs should satisfy you by
affirmative and reasonable testimony that the collector was
personally guilty of negligence in the discharge of his duty either
by misdeed or by omission. . . . This is a suit against the
collector, who did not have charge of the goods, and in order to
render him liable you must find him to have been guilty of personal
neglect, misfeasance, or wrong. . . . In view of the fact that the
collector of New York has charge of all the business from which
two-thirds of the entire revenue of the United States is collected,
and has thousands of subordinates, and upon the evidence that only
one package out of everyone hundred thousand which passed through
the hands of those subordinates has been lost, it is strange that
this case has been so urgently pressed with the idea that upon any
principle of equity, much less of law, there could be any liability
on the part of the collector."
The jury found a verdict for the defendant.
See also United
States v. Brodhead, 3 Law Reporter 95; Wharton on Agency �
550.
The judgment of the circuit court is reversed, and the case
is remanded to that court with a direction to grant a new
trial.