
    Bronson against Woolsey
    The vessel of the P|aint*ffw;as employed by the defendant, a captam in the navy of the United States, in the service of (he United States, in transporting ordnance and military stores of the United States, from Oswego to ⅜'acketfs Harbor, during the late war; and, by the direction of the defendant, was sunk in the harbor of O. in order to prevent the ordnance, &e. from falling into the hands of the enemy, who captured Oswgo, and raised and carried off the vessel. &c. Itwas hela that the defendant was not answerable to the plaintiff for the value of the vessel so sunk and lost.
    THIS was an action of trover, brought to recover the value of a vessel, called the Penelope. It was tried at the Oneida ' x 
      circuit, before Mr. Justice Platt, 00 the 15th of June,
    
    The vessel of the plaintiff, which was a schooner, was era-ployed, in the spring of 1814, by the defendant, (who was a captain in the navy of the United States, during the late war with Great Britain,') for the service of the United States, in the transportation of ordnance and military stores, from * Os-wego to Sacketfs Harbor, on lake Ontario. It was proved that, on the 6th of May, 1814, the fort and town of Oswego were captured by the British forces, who raised the schooner from the water in which she had been sunk, and carried her away, with all the ordnance and military stores, and all the boats and water craft found there, except such as were sunk in deep water. The deposit of ordnance, &c. was at Oswego falls, and the defendant was superintending the forwarding and transportation of the ordnance and military stores, and had under his command two lieutenants, several midshipmen, and about twenty seamen. He had ordered a midshipman, with some seamen, to take charge of the schooner ; and, in case the enemy should succeed in carrying the fort; to sink her, with her cargo. The vessel was under the sole control of the plaintiff’s captain and crew, without any interference on the part of the defendant, until the morning of the day on which the British made their assault, and had, immediately before, performed several trips between Oswego and Sacketfs Harbor, in transporting property of the United States. On the alarm of the approach of the British towards the Harbor, and shortly before the assault, the schooner was removed by the captain and crew from the upper to the lower wharf, where the water was deeper. She was, afterwards, in the forenoon of the same day, removed back to the upper wharf, and sunk in about eight feet water, the deck remaining above the water. A midshipman and several sailors were just before on board of her. The witnesses were of opinion that the vessel might have been saved by sinking her in such deep water, as that the enemy could not, during the short time they remained, have raised her ; and they stated that another schooner, the Henrietta, was sunk at the lower wharf, where the water was deeper, and was saved, as the enemy were unable to raise her. The fort was taken about noon, and the British reached the upper wharf about twenty minutes after the Penelope was sunk. The witnesses thought that the removing her back to the upper wharf, and sinking her there, was extremely injudicious. The judge charged the jury, that the interference of the defendant with the schooner was unlawful, and that he had no right to take possession of #her, or to deprive the master of the charge and control of her; that he was, therefore, answerable as a trespasser; and whether the enemy did, or did not, afterwards, capture the vessel, was immaterial. That the rule of damages was the value of the vessel, under the circumstances of the case, with interest or not, in the discretion of the jury. A verdict was found for the plaintiff for 3,830 dollars.
    A motion was made to set aside the verdict, and for a new trial.
    
      F. C. White, for the defendant,
    contended, that the vessel being employed as a transport in the service of the United States, the defendant, as commanding officer at the place, had a right to do what had been done in regard to the vessel, to prevent her falling into the hands of the enemy. If the plaintiff has a remedy, he must seek it against the United States, not against the defendant. Transports employed by government are always under the direction and control of its officers. The nature of the case, and of the service, required it. The owner of the vessel does, from the very nature of the service, put his vessel, as in the case of a secret expedition, under the control of the government, to go wherever the exigency may require. A neutral vessel, employed as a transport, is identified with the enemy. (1 Wheat. Rep. 387. 391. 6 Rob. Adm. Ibp. 4:20. 426. 2 Azuni’s Mar, Law, part 2. ch. 1. s. 7.) A transport, then, is distinguishable from a common carrier, which is under the sole direction and control of the master and crew appointed by the owner. There is no distinction between a transport in a port, and one on the high sea. The moment she is employed in the public service, she is under direction of the public officer, whose duty it is to take care of the public property, and to promote the public service. In case vessels are pressed into the public service, and are shipwrecked, or taken by an enemy or pirate, the owner, if there he no fault of the commanding officer, must bear the loss arising from inevitable accident. (2 Azuni, 241. part 1. ch. 3. s. 6.)
    Again ; the defendant, as a public officer, can be liable only for negligence, or an improper use of his authority, *(Ruan v. Ferry, 3 Caines’s Rep. 122.) Trover will not lie; but if any action can be brought, it should be an action on the case. Resides, there has been no wrongful conversion of the properly by the defendant. (6 Bac. Abr. Trover, B. Bulst. 280. 1 Burr. Rep. 31.)
    Again ; this vessel being loaded with munitions of war, the defendant, as commanding officer at Oswego, had a right, in a case of imminent danger of capture, or necessity, to sink or destroy the vessel, to prevent the cannon, &c. from falling into the hands of the enemy. In the Commonwealth of Pennsylvania v. Spar hawk, (1 Dali Rep. 357.) where a quantity oí flour belonging to the appellee was taken by the officers of government, and removed by them, as was supposed, to a place of safety, but which afterwards fell into the hands of the British, M'Kean, Ch. J., held, that Congress might lawfully direct the removal of any articles necessary to the maintenance of the American army, or which might be useful to the enemy, and in danger of falling into their hands ; for such a power was a natural and necessary consequence of war; and that the owner of the property was not, therefore, entitled to compensation f°r ^s i°ss- He said, “that the rights of necessity form a part of our law,” Here the enemy were in the mouth of the river, within a few hours’ march of the place, and the capture certain. ( VatteTs L. of iY. b. 3. ch. 15. s. 232.) The necessity of the case is manifest
    
      Sill, contra.
    The plaintiff has shown such a conversion of the property as is sufficient to support the action of trover. Assuming the right to dispose of, or to exercise dominion over, the property of another, is a conversion of it. (Bristol v. Burt, 1 Johns. Ref. 254.) The only question is, whether the defendant, from his office and station, is protected from the action. Admitting the law of necessity, yet it must be a necessity which grows out of the right of self defence, and from an immediate and pressing exigency. An officer of the government is not justified in taking or destroying private property, on any prospective calculation that it might become useful to the en-emf. If he rests his #defence on the plea of necessity, he must show it to be urgent, immediate, and irresistible. This is not such a case. Further, the defendant must prove, that he was an officer having power and authority to destroy the property. There was a regular fort at Oswego, and the defendant was not stationed there. He merely commanded a party of men employed in superintending the transportation of munitions of war to Sacleett’s Harbor. He was there casually-, and for a temporary purpose. He had no authority to order the vessel to be destroyed as a measure of precaution. That power was in the commanding officer of the fort.
    Again; here was very gross negligence in the defendant. The sinking of the vessel might have been delayed, at least, until she could be sunk in such deep water that the enemy could not weigh her up again. A public officer is liable for negligence, or the want of due discretion. (2 Cranch, 133. 3 Cranch, 458.) There is no distinction, in this case, between civil and military officers. (2 Cranch, 179.) Siparhawlc’s case (Dallas, 362.) arose during the revolutionary war, and its circumstances were very different from the present. In the case of Ruem v. Perry, -the defendant was exercising a well-known and established right under the law of nations.
    As to the doctrine cited from Azuni, of the right to press neutral vessels into the service of a belligerent, without compensation in case of loss, if it were necessary to discuss the point here, the soundness of it might well be doubted. But this is a suit between two of our citizens ; and the question is, whether the defendant had power sufficient to justify his conduct.
    As to the objection to the form of the action: The case of 
      Murray v. Burling (10 Johns. Rep. 172.) shows clearly that trover lies. If a man, entrusted with property for a particular purpose, goes beyond his authority, and, also, contrary to his orders, it is a conversion of the property, and trover lies. (Syed v. Hay, 4 Term Rep. 260. 6 East, 540. 1 Johns. Cm. 406.)
    
      N. Williams, in reply,
    said, that the principle on which it was attempted to support this action, would, in effect, obstruct *the operations of war, by defeating the most important military plans ; that not only the writers on the law of nations, but the common law courts justified the taking and destroying of private property in cases of necessity. Where it is a measure of mere precaution, government, no doubt, must make good the loss ; but where it is a case of necessity, ift order to defend the country against an enemy, there was no remedy. The defendant, instead of sinking the vessel, would have been justified in burning her, rather than suffer these warlike stores to have fallen into the hands of the enemy. The cases cited from Cranch were admiralty cases; and the defendants acted without any power or authority whatever.
   Spescer, Ch. J.,

delivered the opinion of the court.

The only ground on which the defendant can be held responsible, is this; that he gave directions to an inferior officer to take charge of the plaintiff’s schooner, and, in case the enemy should succeed in carrying the fort, to sink her, with the cargo; and that event having occurred, the schooner was sunk. The gravamen is, that she was sunk in too shallow water, so that the enemy raised her, and took her off as a prize; and that, had the plaintiff’s master continued to keep charge of her, she would have been so sunk, as to prevent her being raised, and thus she would have been preserved to the plaintiff.

Was the defendant authorized, under the circumstances of the ca.se, to order the schooner to be sunk ; and if he was, would he be responsible for the imperfect execution of his orders ?

The defendant was a captain in the navy of the United, States, and was, at the time of the injury complained of, at or near Oswego, superintending the forwarding and transportation of ordnance and military stores, from Oswego to Saelcctfs Harbor, and had with him, under his command, several officers and sailors. The plaintiff’s schooner was loaded, under the defendant’s directions, with heavy guns, shot, &c. The schooner was navigated by the plaintiff’s master and crew, without any interference from the defendant, and she had performed immediately before, several *trips between Oswego and Sackeifs Harbor, in transporting property of the United States.

There is proof in this case, that the fort of Oswego, having been taken by the enemy, the vessel was sunk, under the defendant’s orders, by a midshipman; and it appears that she was thus sunk in shoal water, and was afterwards raised and carried off by the enemy; and it is rendered quite probable, as far as the opinion of witnesses can ascertain, that had she been left under the management of the master, she might and would have been so sunk as to have escaped capture.

It has not, and cannot be pretended, that the defendant was influenced, in giving the orders, by any other motives than those proceeding from a laudable zeal for the public service, and with the sole intention of preventing the ordnance and munitions of war on board the plaintiff’s schooner, from falling into the hands of the enemy. The schooner, being in the transport service of the United States, was subject to the defendant’s orders and control, as much as if she had been navigated by officers and men in the service of the United States, In the case of the Commonwealth of Pennsylvania v. Sparhawk, (1 Dallas’s Rep. 382.) Ch. J. M’Kean very justly observes, “ the transaction, it must be remembered, happened flagrante bello, and many things are lawful in that season which would not be permitted in time of peace.” Again, he says, “ it is a rule, however,'that it is better to suffer a private mischief, than a public inconvenience; and the rights of necessity form a part of our law.” In time of war, bulwarks may be built on private ground, because it is for the public safety. In the present case, the vessel was not ordered to be sunk, to deprive the owner of his property, or to appropriate it to the defendant’s use, but she was ordered to be sunk, from the paramount consideration of the public welfare; it was to secure her from capture by the enemy ; that the vessel, after-wards, fell into their hands, was an event involuntary, and perfectly accidental.

In this case, the public property, which the defendant was bound to preserve from capture, was placed on board the plaintiffs vessel. Was the defendant to fold *his arms, and suffer this property, so necessary to the United States, to be preserved, or not, at the option of the plaintiffs master? It seems to me the answer must be, that he had a right, in order to secure the ordnance and munitions in the vessel, to command her, either to proceed to a place of safety, or to be sunk : and that he was not bound to rely on the discretion of the plaintiffs master to do this or not. The orders given did not deprive the master of a right to aid and advise, as to the best course to be pursued ; and, although the witnesses seem to suppose that she might and could have been sunk in such a way as to baffle all attempts to raise her by the enemy, it is extending speculation too far, to pronounce that she would have been so sunk.

The defendant gave his orders under a pressing exigenc>. when there was no time to wait for the directions of the pres-klent; and, according to the law of nations, he represented the sovereign or executive power, by virtue of an authority tacitly given by his commission. (Vattel, b. 3. ch. 2. s. 7.) Had the president of the United States been present, and given the order which the defendant gave, it will hardly be insisted that he would have been a trespasser.

It would seem, according to Vattel, (b, 3. s. 232.) that this act being done voluntarily, and by precaution, the damages are to be made good to the owner by the sovereign power ; because the party suffering, in such case, should bear only his quota of the loss. Rut we are clearly of opinion that the defendant is not responsible. There must be a new trial; the costs are to abide the event of the suit

New trial granted.  