Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Responsibility of Owners of Privateers
ACCORDING to Articles 5 and 69 of the charter of the Admiralty of August 13, 1597, privateers shall not sail out without giving an appropriate security for their actions, that is to say, that they will do no injury to neutrals, as is explained in Article 5 of the charter by which the States-General on July 15, 1633, authorized privateering against the Spanish in American waters. However, these articles simply say that security must be given without specifying whether the captains or the owners or both should give it. The edict of the States-General of April 1, 1622 also fails to be specific on this point. This edict in fact simply requires a bond of ten thousand florins ‘secured by the ship and the cargo to insure that the prizes shall be brought to legal adjudication before the Court of Admiralty of the place where the security is given’, without any prejudice to the case of injured parties against the captain or whoever else may have wrought any injury. It is apparent that the bond is here given for a different purpose from that of the above-cited sections 5 and 69. Though the last clause does not specify who is to furnish this bond often thousand florins, it seems to me that the captain alone is intended, since it is his duty to bring the prize to the port whence he sailed, and also because the decrees of the States-General of August 9, 1624, and of October 22, 1627, stipulates that the captain must enter security for ten thousand florins and the owner for twelve thousand, the latter amount being security to cover damages caused by the privateer. The last-named decree adds the stipulation that if the twelve thousand florins of the owner are not sufficient for the reparation of damages, then recourse might be had to the bond of ten thousand furnished by the captain. Such were the old stipulations; but according to section 3 of the most recent regulations drawn up for privateers by the States-General on July 28, 1705, a bond of thirty thousand florins is required without specifying whether the owner or the captain is to furnish it. I might add the various treaties signed by the States-General with various powers, which have stipulated that definite sums must be entered by owners and captains as security against the infraction of maritime treaties, but I can safely omit these, since I have spoken fully about privateers, and these are the only ones who are now required to furnish securities.
With these preliminary remarks, I shall proceed to the inquiry whether, if a privateer has made an illegal capture, the captain or his bondsmen or the owners must repair the damage, and to what extent they are liable. The counsellors of state have given the opinion that when a captain of a privateer has illegally seized a neutral vessel, and has lost the vessel by placing her in the hands of an ignorant prize-master, the owner of the captured vessel may sue at his pleasure the captain of the privateer, his bondsmen, and the owner, all or singly, for the full amount of the value of his ship at its highest value. Let us now consider this opinion in detail. There can be no doubt that the captain is liable to the whole extent of the damage for wrongdoing. His commission was to plunder the enemy, not friends, and if he has attacked the latter he has exceeded his authority, and is therefore liable to the extent of the injury. This also the States-General indicate in their edict of April 1, 1622; for there, besides demanding security of ten thousand florins that the prize shall be brought to the port of departure, they add the clause: ‘reserving however to those who may have suffered wrong by the captain beyond the extent of his commission, the right to take personal action against the captain and others who have caused the damage.’
Regarding bondsmen or securities, the opinion of the state counsellors quoted above seems to me incorrect unless the bondsmen bound themselves for the whole amount of the damage; but if they bound themselves for a definite sum, as is usual in the case of privateers, they are not liable beyond that sum, and for the specific purpose for which they bound themselves. So, for instance, if they entered security that the prize should be brought into the port of departure, they are free from liability as soon as the prize has been brought in, and it does not concern them whether the prize was taken legally or not, unless this matter was also specified in the bond. But since most captains are so poor that they cannot repair the damages caused, and bondsmen usually bind themselves only for a specified sum, which they may bring suit against the shipowner to recover, the whole affair becomes the concern of the owner in the end. Therefore, let us consider whether the owner is liable to the full extent of the damage, or only to the value of the ship and its cargo, on the principle of the Roman law concerning damage caused by animals and slaves. A case involving this discussion was once tried before the Supreme Court in Holland. Five Dutch ships had unlawfully taken a Venetian ship. The owners of the Venetian ship first brought suit against the offending captains, and obtained a judgement requiring only that the captains give back the vessel. When this was not done they brought suit against the owners of the five Dutch ships contending that they should jointly and severally be condemned to restore the ship with its cargo and also pay damages to the full amount. The court on July 31, 1603, condemned the owners to restore the ship and cargo completely, and, if these were no longer available, to pay their appraised value, but it added specifically that the execution of the sentence should be made upon the five ships that had made the capture, and that the owners should not be bound beyond the value of these. This precedent has been followed by the counsellors of State.
With this opinion, however, I cannot agree, for I think that if the owner sent the captain out to take prizes, and he carries out his commission wrongfully, the owners are liable to the full amount of the damage caused. The captain who takes prizes under a commission is appointed for that purpose, and he who appoints him is by the act of appointment liable for all, whether good or bad, that his appointee does under the commission. Thus we permit an actio institoria against the owner of a shop who has placed an agent in charge of it, and if the agent has made a contract we do not distinguish in what manner he has made it. In the same way we give an exercitorian action against the owner of a vessel for the act of a captain, provided the captain was acting in a matter for which he was engaged; for if he was not, he does not bind the owner, as Ulpian has fully explained. The appointment is the sole cause why owners of shops and of ships are bound: that is to say, they are liable if the act was committed in the performance of a task for which the agent was appointed, but not otherwise. He who has placed a captain on a privateering vessel, knows that the captain’s duty was to make captures, and if the captain performs this task improperly, the fault lies with the owner who employed an unskilful and dishonest man for the task. If a captain, having borrowed money for the repairing of his ship, applies it to his own use, Ofilius properly says: ‘the owner is liable, and must impute it to himself that he employed such a person.’ With this agrees the opinion of the States-General expressed in their decree of October 22, 1627: ‘that the shipowners must take care to employ good captains.’
If owners of shops and of vessels are responsible for the acts of their agents, it is evident that they are responsible to the full extent of the damages, and that they are not discharged by the surrender of the shop or the vessel in question. I do not remember that I have ever read an opinion contrary to this; nor would such an opinion be reasonable, since those who are responsible for the acts of their agents are responsible to the full extent; hence owners of vessels are liable to the full for unjust captures made by their captains. A further support for this opinion is found in the edict quoted above, which required the owner to furnish security of twelve thousand florins, and in the later edict which required security of thirty thousand florins that the privateer would not injure a friend or ally; for if our opinion were incorrect, it would be wrong, when the privateering vessel was of less value than these specified sums, to exact from the owners more than the ships themselves could provide. In that case the law should have required security to be placed in each instance at the estimated value of the ship. The above-cited section 3 of the charter of July 28, 1705, provides even better proofs for the correctness of our view, for after requiring security of thirty thousand florins, the owners are themselves held liable for possible damages from wrongful acts, and by a special land of lien all the equipment belonging to the privateering vessel is also held. Since then these facts make it evident that owners are liable beyond the value of their ships, we will refuse to apply to this question the principle of the Roman law concerning damage caused by animals and slaves, since that principle is not pertinent to this question.
The above-mentioned decision of the Supreme Court given on July 31, 1603, was therefore erroneous; for if the shipowners placed the aforesaid captains in charge of a privateer, thus giving them the commission to make captures, they should have been held liable for the full amount, just as a principle would be held liable to the full amount for the contract of an agent that he had placed in charge of a business with a mandate to perform the business involving that contract. You may perhaps approve of the sentence of the Supreme Court on the ground that the report in Coren does not state whether the five ships were privateers or not. If they were not privateers, it cannot be said that the owners appointed them in charge of making captures. But if that is the case, the decision must be faulty in another respect; for if there was no such charge, I should like to know why the supreme court condemned the owners to restore the Venetian ship and her cargo, and even granted execution against the vessels of those owners, for in that case they condemned them for an act which was not within the authority granted to their captains, which is clearly contrary to the principles of the above-cited law. In that case the affair would not concern the owners, for though the owners put the captain in their stead, they do so only in matters for which they commission him, and they are liable for him only in so far as he is guilty of fault or fraud in those matters. If you accept a vase to repair it, and you give it to your apprentice and he destroys it, you are held liable, but if your apprentice kills some one, even though he uses one of your instruments in the deed, you are certainly not held responsible. Therefore, we cannot apply to owners of vessels the principles of the law regarding damage caused by animals, just as we cannot apply this principle in a case where an animal has caused damage through the fault of its driver or keeper.
According to the principle that I have contended for, owners will not be held responsible if they have not appointed the captain for making captures; but if they have, they are liable not only to the extent of the value of the ship but also to the aforesaid sums of ten thousand and thirty thousand florins. And furthermore, those who have suffered wrong may, according to the decree of October 22, 1627, as said above, bring suit for the ten thousand florins by which the captain has bound himself to bring the prize to the port of departure. Such a demand, however, would seem unjust, though it is made in the decree, unless the bondsmen are warned and have agreed to accept liability on this point also. For if, as is usually the case, they have simply given security that the captain shall bring the prize to the port of departure, it would be inexpressibly unjust to hold them responsible on that security for any other cause, as I implied above when speaking of bondsmen. But if all these things that I have enumerated do not suffice to repair the damage, are we to demand even more, and are the owners to be held even further? In my opinion they are to be held liable until complete reparation has been made, for in the case of a debt, Roman law does not consider that a bondsman or pledge liberates a debtor unless the debt is discharged in full.
Moreover, if the vessel in question is not a privateer, that is to say, if she has not received a legal commission to make captures, but only has a commission from the owner, I think the same principles hold as in the case of a real privateer; for the right arises out of the order and the appointment, and so far as the injured parties are concerned, it does not matter whether the injuries have been inflicted by a real privateer or by a vessel acting as one.