The courts of the United States will not enforce an agreement
entered into in fraud of a law of the United States, although that
agreement was made between persons who were then enemies of the
United States, and the object of the agreement a mere stratagem of
war.
The duty of a master of a vessel to his owners will not oblige
him to violate the good faith even of an enemy in order to preserve
his ship, nor to employ fraud in order to effect that object.
This was a writ of error to the Circuit Court of the United
States for the District of Georgia, sitting in chancery, to reverse
a decree which dismissed the complainant's bill on a demurrer.
The complainant, as assignee of Cruden & Company, alleged in
his bill that on 24 December, 1782, during the war between, the
United States and Great Britain, the British armed ship
Dawes, owned by Cruden & Company, who were British
subjects, and commanded by Oswell Eve, the defendant, sailed with a
cargo, the property of Cruden & Company, from Kingston, in
Jamaica, for New York, then in possession of the British troops.
That on her passage the ship met with much tempestuous weather, by
which she was rendered incapable of reaching her port of
destination, in consequence of which the defendant, after
Page 7 U. S. 243
consultation with the crew and passengers, came to the
determination to sail for the nearest port in the United States,
thereby to save the lives of the crew and passengers, which were in
imminent danger, and also to save as much as possible to the
owners. That the vessel and cargo were liable to be captured by the
cruisers of the United States; or if she went into any port of the
United States, without being captured, she would become a
droit of admiralty to the United States, or some of them.
That the defendant stated to the crew and passengers that as
Congress, by its resolve of 9 December, 1781, had enacted and
declared
"That all ships and vessels, with their cargoes, which should be
seized by the respective crews thereof should be deemed and
adjudged as lawful prize to the captors,"
as the vessel was incapable of reaching New York, and as she
would be totally lost to the owners, to himself, and the crew, if
captured by the cruisers of the United States, the best mode would
be to seize and capture the vessel and cargo, make the passengers,
who were military men of high rank and distinction, prisoners of
war, and sail for the nearest port, and there obtain a condemnation
of the vessel and cargo for the benefit and compensation of the
crew, who would lose their wages if she was regularly captured, and
that the residue should remain in the defendant's hands, as agent
and trustee, and for the sole use and benefit of the owners. That
this plan was agreed to and executed, and an agreement, signed by
the defendant and the crew, ascertaining what share each man was to
be allowed, and which was to be the basis of the judge's decree, as
to the distribution of the prize money. That the crew consented to
the defendant's having a larger share than they would, if he had
not declared his intention to act in the whole, as the agent and
trustee, and for the benefit of the owners. That the vessel was
accordingly carried into a port in North Carolina, libeled,
condemned, and distribution made, according to the proportion fixed
by the agreement. That the defendant afterwards purchased a number
of the shares of the seamen for the benefit of his owners; that he
also purchased part of the cargo, at the marshal's sales, and
shipped it to Charleston, where he sold it to great profit for the
benefit of the owners.
Page 7 U. S. 244
The bill then prays a discovery, and that the defendant may
account and be decreed to pay, &c.
To this bill the defendant demurred and assigned two causes of
demurrer.
1. That it appears by the complainant's own showing that the
ship and cargo were regularly condemned under the resolve of
Congress of 9 December, 1781, as lawful prize, and the proceeds
decreed to the defendant and others as lawful captors, the legality
of which decree ought not now to be called in question.
2. That the bill contains no matter of equity but what is
cognizable at law.
Upon argument, the judge (Stephens) sustained the demurrer, and
dismissed the bill, but without costs.
Page 7 U. S. 247
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The essential difficulty in this cause arises from the
consideration that under the resolution of Congress by which the
vessel and cargo mentioned in the proceedings were condemned, a
sanction is claimed to a breach of trust and a violation of moral
principle. In such a case, the mind submits reluctantly to the rule
of law, and laboriously searches for something which shall
reconcile that rule with what would seem to be the dictate of
abstract justice.
It has been correctly argued by the plaintiff in error that the
captain was under obligations to the owners, from which, in a moral
point of view, he could not be completely absolved. He was bound to
save for them the ship and cargo by all fair means within his
power, but he was no bound to employ fraud in order to effect the
object. The situation of the vessel unquestionably justified her
being carried into the port of an enemy, and perhaps in the courts
of England the libeling of the vessel by the captain and crew might
be construed to be an act which would enure solely to the benefit
of the owners; but war certainly gives the right to annoy an enemy
by means such as those which were employed by Congress, and courts
are bound to consider them as legitimate, and to leave to them
their full operation.
The agreement to save the ship and cargo, under the semblance of
a condemnation, was not in itself an immoral act; it was, as has
been truly said, a stratagem which the laws of war would authorize,
but it was certainly a fraud upon the resolution of Congress, and
no principle can be more clear than that the courts of the United
States can furnish no aid in giving efficacy to it. Congress having
a perfect right, in a state of open war, to tempt the navigators of
enemy vessels to bring them into the American ports, by making the
vessel and cargo prize to the captors, the condemnation of a vessel
so brought in amounted necessarily to an absolute transfer of the
property, and to a complete annihilation, in a legal point of view,
of the title of the owners, and of their
Page 7 U. S. 248
claim upon the captain. Had no communication taken place between
the captain and his crew, whereby a portion of the prize money was
allotted to him in trust for the owners, which would not have been
allotted to him as a captor, in virtue of his station in the
vessel, it would have been a plain case of prize under the
resolution of Congress, and any intention under which the capture
was made, whether declared or not, would have been, like other acts
of the will, controllable and alterable by the persons who had
entertained it. But if, by a contract with the crew, stipulating
certain advantages for the owners of the ship and cargo, the vessel
has been carried in when she would not otherwise have been carried
in, or a larger proportion of the prize has been allowed to the
captain than would have been allowed to him for his own use, a
plain fraud has been committed by him, and the question whether the
trust which he assumed upon himself, and under which he obtained
possession of the property, can be enforced in this Court is one of
more difficulty, upon which a difference of opinion has prevailed.
It has been thought by some of the judges that the contract being
in itself compatible with the strictest rules of morality, and
being opposed by only a temporary and war regulation, which exists
no longer, may now be enforced. But upon more mature consideration,
the majority of the judges accede to the opinion that the contract
being clearly in fraud of the law, as existing at the time, a law
to which, under the circumstances attending it, no just exceptions
can be taken, its execution cannot be compelled by the courts of
that country to evade whose laws it was made. The person in
possession must be left in possession of that which the decree of a
competent tribunal has given him.
This opinion seems completely to decide the point made under the
treaty of peace. According to it, a debt never existed to which the
treaty could apply. No debt was due from the captain to his owners
but in virtue of the confiscation of the ship and cargo, and it has
never been alleged that the treaty extended to captures made during
the war, of property in the actual possession of the enemy,
whatever might be the means employed in making them.
Page 7 U. S. 249
If the allegations of the bill had stated any contract
subsequent to the condemnation, by which captain Eve had made
himself a trustee, the previous moral obligation might have
furnished a sufficient consideration for that contract. But the
allegations of the bill are not sufficiently explicit on this
point. They do not make out such a case. His declarations appear to
have been contemporaneous with the transaction, and only to have
manifested the intention under which he acted, an intention which
he was at liberty to change.
Judgment affirmed.
