The decree must be REVERSED, and the cause remanded to the court below, with directions to assess the damages and pay them out of the proceeds of the vessel before distribution to the captors. Mr. Justice NELSON, dissenting. ORDERED ACCORDINGLY. I am unable to concur in the opinion just delivered. The steamer Siren, having been captured by the United States steamship Gladiolus, a government vessel of war, jure belli, became the property of the United States, subject only to the right of the claimant to have the question of the legality of the capture determined by the prize court to which it was sent for condemnation. Captures made by government vessels belong to the government, and no title exists in the captors, except to their distributive shares of the proceeds after condemnation.1 I agree that the Siren, while on her way, after capture, under the charge of the prize master, was in fault in the collision with the sloop Harper, on her passage from the East River into the Sound, and that, if she had belonged to a private owner, she would have been liable, in the admiralty, for all the damages consequent upon this fault. Nor do I make any question as to a lien for the damages against the | vessel p. 164 in such a case, and which may be enforced by a proceeding in rem; or may be by a petition to the court against the proceeds, in the registry, if, for any cause, the offending vessel has been sold, and no prior lien exists against these proceeds. But if the owner of the offending vessel is not liable at all for the collision, it follows, as a necessary legal consequence, that there can be no lien, otherwise the non-liability would amount to nothing. It would be idle to say that the owner was not liable for the wrong, and at the same time subject his vessel for the damages occasioned. In this case, therefore, before a lien can be established or enforced against the Siren by a proceeding in rem, for the fault in question, or, which is the same thing, before it can be applied to the proceeds of the vessel in the registry, it must first be shown that the United States, the owner, is legally liable for the collision. In saying legally liable, I do not mean thereby legally liable to a suit; but legally liable upon common law principles in case a suit might have been maintained against the government; in other words, legally liable for the wrongful acts of her officers or public agents. That, in my judgment, is the turning-point in this case, and the principle is as applicable to the proceeds of the Siren in the registry as to the vessel itself. If the government is not responsible, upon the principles of the common law, for wrongs committed by her officers or agents, then, whether the proceedings in the admiralty are against the vessel, or its proceeds, the court is bound to dismiss them. 1 Dos Hermanos, 10 Wheaton, 306; The Aigburth, Blatchford's Prize Cases 635; The Adventure, 8 Cranch, 226. Now, no principle at common law is better settled than that the government is not liable for the wrongful acts of her public agents. Judge Story, in his work on Agency, states it as follows: 'It is plain,' he observes, that 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 persons 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, p. 165 which would be subversive | of the public interests.' When we take into view the multitude of public officers and agents, which the government is obliged to employ in conducting its affairs, the soundness, propriety, and even necessity of this principle become at once apparent. In our judgment the present case falls directly within it. In all these cases of wrongs committed by public officers or agents, the legal responsibility attaches to the actual wrongdoer. It is supposed that the liability of government property for salvage or general average contribution, for services or sacrifices, in cases of impending danger to the property, afford some authority for the judgment in the present case. We are unable to perceive any analogy to the principle we have been discussing. There a portion of the property is taken, or appropriated, as a compensation for saving it from a peril that threatened the loss of the whole. The cases involve no principle concerning the liability of the government for the tortious acts of its public officers. Great stress is laid also upon the circumstance that the United States is the libellant, and has brought the offending vessel or its proceeds into court, and that the proceeding against the fund in the registry is not a suit against the government. But the answer to this is not that the proceeding may not be taken against the fund in the registry, although there is certainly some difficulty in distinguishing between that and a proceeding against the vessel itself, but that the fund which belongs to the government is not liable at all for the wrongful acts of its officers, which wrongful acts lie at the foundation of the judgment rendered in the case. It is for this principle I contend, and for which I am compelled to dissent from the judgment. The Diana. (7 Wallace, 354) 1868. To justify a vessel of a neutral in attempting to enter a blockaded port, she must be in such distress as to render her entry a matter of absolute and uncontrollable necessity. APPEAL from a decree of the District Court for the Southern District of Florida. The schooner Diana was captured, on the 26th of November, 1862, by vessels of war of the United States, off Pass Cavallo, on the coast of Texas, then in rebellion against the United States, and, for some time previously, under blockade along the whole line of its coast, and taken to Key West for adjudication. A libel in prize was filed against both vessel and cargo, in the District Court for the Southern District of Florida, in December, 1862, to which the master of the vessel interposed a claim in behalf of John Cabada, of Campeachy, Mexico, the alleged owner of the schooner, and in behalf of Miguel Canno, a Spanish subject residing at Campeachy, the alleged owner of the cargo. Subsequently a claim was filed by Idela Cabada, alleging that he was owner of the vessel, and that he had let her to one Miguel Canno on freight for a voyage from Campeachy to Matamoras, Mexico, in good faith. The ship's papers showed that the vessel was on a voyage from Campeachy to Matamoras, and was consigned to one San Roman, at the port last named. She set sail on the 11th November, 1862. | When captured the vessel was near the port of Matagorda, off the p. 355 coast of Texas. She was fourteen days from Campeachy, and was two hundred miles out of her direct course, having deviated therefrom on the third day out from Campeachy. The master, in his deposition taken in preparatorio, testified that 'the first port the vessel would have entered had she not been captured would have been the nearest convenient port of entrance, and the second would have been Matamoras,' and 'that for twenty-four hours previous to the capture the ship was steering toward the coast of Texas, in hopes to make a harbor, or beach, or something.' One of the seamen found on board testified that but for our capture 'the vessel would have entered first the port of Cavallo,' and that they were running along the coast for an entrance, and that at the time of the capture the captured vessel was only some three miles from the lighthouse on Pass Cavallo Point.' In excuse for the position in which the vessel was found it was alleged that when three days out from Campeachy damage had resulted to the rigging of the vessel, causing her to deviate from her course, and that the master approached the coast 'from no other motive than that of It The log-book, which had perhaps a somewhat elaborate and artificial aspect, stated that there had been a good deal of heavy weather; that the vessel worked much; that when three days out from Campeachy she broke the clamp of the peak of the foresail,' which it was necessary to wait till daylight to repair, but which then, at six o'clock in the morning, was repaired, the wind then being favorable, as it was generally, for going to Matamoras; that on the 15th she broke the bobstay of the bowsprit ; and that a lashing of rope was made to secure the said bowsprit, having no better means,' and that sail was then made with double reefs. indicated, generally speaking, variable weather, sometimes heavy, sometimes fine; that the vessel, however, required the pumps to be not p. 356 unfrequently at work; that on the | 25th she became uncertain about her longitude, and that on that day, under light variable winds, she 'luffed all that was possible, for the purpose of finding soundings and determining our longitude, and by that means to enable us to make a straight course for our port of destination, or some port near by, where we might repair the damages sustained by the vessel and her rigging.' Twenty-four hours afterwards she was captured, being, as already stated, now off the Texan port of Matagorda. The following letter of instructions, from the owner of the vessel and the owner of the cargo to the master, was found among his papers. ad th CAMPEACHY, November 10th, 1862. [Translation.] DN. PEDRO JAUREQUIBERRY, present. You have ample authority to dispose of the goods which are on Although the vessel goes consigned to Dn. Jose San Roman, you will do what you consider best for our interest. You should not disburse any money while you are able to make purchases from the proceeds of the invoice, and of such ship's stores as you can conveniently dispense with after reserving a sufficient quantity for the return voyage. As we are embittered by the war which France has declared against the republic, upon the return voyage you will touch at Sisal or Celestun, where you will receive our instructions. You will keep an accurate account of all moneys disbursed by you, in order that we may determine whether to continue or not these expe ditions. We omit any further instructions which we | might give, having p. 357 full confidence in your intelligence and activity. We conclude by wishing you a safe voyage, and by acknowledging ourselves Your friends, &c., CANNO & CABADA. The cargo of the Diana consisted in part of rice, starch, coarse flannel, paper, nails, rum, brandy, shoes, and segars; articles which were nearly or quite as abundant at Matamoras as at Campeachy, but which were greatly needed in Texas, at the time, as already said, under blockade by the United States. There was on board, apparently as a passenger, an Englishman, whose name appeared in the ship's papers as George Stites, but whose real name was George Chase, and who was a pilot, and a resident of Lavacca, Texas. Acting Master Atkinson, of the United States Navy, in his deposition, taken by leave of court, testified that when he boarded the Diana, her master said that his purpose was to run the blockade; that he had before attempted to do so at St. Louis Pass and did not succeed, and that the same statement was made to him by the pilot of the Diana, who was part owner of the cargo. Acting Master Samson, also of the United States Navy, in his deposition testified that Chase, the ostensible passenger on board, and who was part owner of the cargo, stated that he was engaged to act as her pilot in entering Matagorda Bay, or any other convenient port of Texas, and that the vessel was intended to violate the blockade; and that Chase made a written acknowledgment to this effect, in presence of several witnesses. On the hearing, it was brought to the notice of the court that a person. of the same name with the captain of the Diana, and residing at the same place, commanded the schooner Sea Witch, which was captured off the coast of Texas for an alleged intention to violate the blockade, and was restored to her owner upon the ground that while on a voyage from | Matamoras to New Orleans, she was driven out of course by heavy weather p. 358 and had been damaged;1 the same excuse which is offered in this case. The District Court decreed restitution, and from the decree the United States appealed. Mr. Ashton, Assistant Attorney-General, for the United States, relied upon the very suspicious facts disclosed by the case upon the position of the vessel, so far out of her proper course, and upon the circumstance, very remarkable if the case was one of innocence, that the captain of the vessel had been recently found on another vessel, in exactly the same 1 6 Wallace, 242. |