1786.
a wrong done to another. Reafonable care, attention, prudence and fidelity, are expected from the mafter of a fhip, and if any miffortune or mifchief enfues from the want of them, either in himfelf or his mariners, he is refponfible in a civil action. And it muft appear very ftrange to any underftanding, that the owners of a veffel fhould be anfwerable in damages for the mifconduct of the mafter, merely becaufe they appointed him mafter, and that the mafter, the actual malfeazor, fhould not be accountable over to them ; that the innocent fhould fuffer, and the guilty perfon go fcut-free. We know of no fuch law.
Upon the whole, THE COURT, are of opinion, that the fentence of the Court of Admiralty be reverfed ; [♦] and this Court do decree and adjudge, that the refpondent do pay to the Appellants of the Sum of Ł . 3,795. 3.6. and the intereft thereof from the 22d day of January 1785, together with the cofts by them paid in the former caufe by Siles Talbot qui tam, againft them and others, and alfo the cofts of this fuit in the Inferior Court, and that each party fhall pay their own cofts in this Court, the fame to be taxed by the Regifter, or this Court.
The Counfel for the Refpondent afterwards moved the Court for a re-hearing upon a fuggeftion of new evidence &c. and upon that occaftion, Judge SHIPPEN made the following obfervations : —
SHIIPEN, Juʃtice :– When his Court delivered their decree that the Refpondent fhould pay to the Appellants the Sum of Ł . 3,795. 3.6. they eftimated the damages by what they conceived to be the value of the Veffel and Cargo, having then, I believe, no doubt but that the lofs fuftained was the proper uncafure of damages. The conduct of the Refpondent, though certainly unjuftifiable, appeared from the evidence to be attended with fuch favorable circumftances, that if the idea had been entertained that the damages were difcretionary, and could have been legally diminfhed, I, as one of the Court, fhould certainly have given my voice for a much lefs fum. Whether the Court had, or had not, fuch a difcretionary power, was not made a queftion on the hearing, but has fince occured to me ; and having met with a cafe which goes a great way towards eftablifhing the principle, I fhould be willing to have the cafe re-heard as to this point. The cafe I allude, to, is that of Raʃel v. Palmer in 2 Wils. 325. which was a fpecial action on the cafe againft an Attorney for negligence, in not charging the Defendant in execution within two terms after the judgment, whereby the Plaintiff loft his debt, the Defendant having obtained a Superʃedeent agreeably to a rule of the Court of Kings Bench, and had been difcharged out of cuftody. On the trial of the caufe before the Land Cambden a verdict was given for the plaintiff for Ł . 3000, the whole debt, by the Chief Juftice's direction. But, afterwards, on a motion for a new trial, the Chief Juftice himfelf and the reft of the Court were of opinion, that he had mifdirected the Jury in telling him, that they ought to find a verdict for the
[♦] See the evidence, and the fentence of the Admiralty, reported by the Honorable Judge of that Court, in the volume referred to Ant p. 95.
