Levi Woodbury to MVB, 8 December 1834
Levi Woodbury to MVB, 8 December 1834
THE SECRETARY OF THE TREASURY,
In compliance with a resolution of the Senate of the 26th June last, on the petition of Mary O’Sullivan, widow and executrix of John O’Sullivan, deceased.
December 8, 1834.
Read, and ordered to be printed.
December 8, 1834.
The Senate of the United States, on the 26th day of June last, “Resolved, That the petition of Mary O’Sullivan, widow and executrix of John O’Sullivan, deceased, with the documents accompanying the same, be referred to the Secretary of the Treasury, and that he be directed to make a detailed report, together with his opinion thereon, to the next session of Congress.” In compliance therewith, the undersigned has now the honor to report, that the facts connected with this claim, as set forth in the accompanying documents, and which furnish all the information upon the subject in his possession, appear to be as follows: It is alleged, that the husband of the claimant, the late Capt. John O’Sullivan, a citizen of the United States, some time in the year 1823, at the port of Guayaquil, purchased a certain brig, called the Dick, of Bartoleme Bela, then on board the vessel, who represented himself to be the owner, and a naturalized citizen of the United States, who stated that he had purchased said vessel in virtue of a bill of sale, or power of attorney, from William Furlong, in whose name it appears the Dick had been registered at the port of Baltimore, in the year 1819. As owner and commander, Captain O’Sullivan ordered the vessel to proceed to Buenos Ayres, with the view, as it stated, to take on board a cargo of hides, and transport them thence to Cadiz. She arrived at Buenos Ayres in the month of May, 1823, and a few days thereafter, was seized and taken possession of by John M. Forbes, esq., commercial agent of the United States, resident at that place, on suspicion of her being engaged in piratical pursuits, which suspicion was predicated upon information received by him and set forth in his despatch, contained in the printed documents herewith, numbered 2. He also states it to have been his belief, that the Dick was the property of foreigners, although sailing under American papers. Under these circumstances, Mr. Forbes deemed it proper to send her home to the United States, to be dealt with according to law, and advised the Secretary of State thereof, together all with the circumstances connected with the case, as will appear by his despatch above stated. The vessel arrived at New York, and after lying there some time without any proceedings being instituted against her, on the part of the United States, she was finally libelled for seamen’s wages, and under a contract of bottomry, and sold by the marshal of that district. Captain O’Sullivan became the purchaser, and made application for a new register, which, after due consideration of the circumstances of the case, was directed to be granted, as will appear by the comptroller’s letter, in printed document number 7.
The claim set up by Mrs. O’Sullivan, is for the amount of damages, and loss of property alleged to have been sustained by her late husband in consequence of the official acts of Mr. Forbes, before stated, and are as follows.
|1st. “The value of the vessel and her stores at the time of her seizure at Buenos Ayres, and under her engagement of freight, having a full cargo then ready to be transported to Cadiz, not less than - - - -||$20,000 00|
|2d. The value of freight the vessel could have earned in carrying said cargo to Cadiz, already covered by insurance, at New York, not less than - - - -||5,000 00|
|3d. The loss on 5,000 hides, purchased for the cargo, and re-sold at Buenos Ayres, in consequence of the voyage to Cadiz being frustrated, about - - - -||5,000 00|
|4th. The loss of insurance effected on the vessel and freight from Buenos Ayres, by Le Roy, Bayard & Co., for account of the owner - - - -||1,302 50|
|5th. The expenses and loss of time incurred by the said J. O’Sullivan, while waiting at Cadiz for the vessel’s arrival there, and returning to New York in pursuit of her, about - - - -||1,250 00|
|6th. The interest on the amount of the above, from 1823 until paid.”|
“In addition to the above may be estimated, and ought to be considered, though it cannot now be proved with sufficient certainty, in consequence of J. O’Sullivan’s death, the enormous losses and damages he sustained, resulting necessarily from the frustration of a voyage, so very important, as was that of the brig Dick, at the time of her seizure, and under the peculiar circumstances existing, having a cargo engaged and paid for, to go on board, of near fifty thousand dollars value, and another engaged at Cadiz at much greater value, to be carried in her from thence to South America; by which frustration, it was calculated by J. O’Sullivan, as appears by a statement he delivered to the Government in his life time, that he had been deprived of above $100,000, besides the above stated amount. And mercantile men would not doubt the strong probability of such a calculation being correct; and furthermore may well be considered as a consequence, also, of the act of the agent in frustrating the brig’s voyage, the final catastrophe which ensued, of the loss of J. O’Sullivan’s life upon her next voyage, and the loss of all he was worth, leaving a widow and six children destitute.”
Under a full view of all the facts connected with this case, and a consideration of the principle heretofore recognized in other cases, of the liability of the Government for injuries inflicted on individuals by the errors and illegal acts of its agents, when acting in their official character, the claimant supposes herself entitled to a full remuneration from Congress for whatever damages and losses may have been sustained by her late husband, John O’Sullivan, in consequence of the before mentioned acts of John M. Forbes, esq., late commercial agent of the United States at Buenos Ayres, and that an act ought to be accordingly passed for her relief. The undersigned apprehends, that the principle of liability by the Government for the acts of its agents, extends only to such acts as arise from gross negligence in discharge of official duties, or from omission to perform them, and that even in those cases, the person suffering should either resort to the agent early, and, in a suit with him, establish his liability, and the amount of damage, or report early to the Government, and make out a very clear case, so that redress may be had by the Government against the agent, on his personal responsibility, or his official bonds and sureties, if any exist.
Here no remedy appears to have been had of the agent, by the petitioner, nor does any attempt appear to have been made to fix in a court of law his liability, nor are reasons shown in the papers for the omission to do this.
Whether the other course has been successfully adopted, of an early resort to the Government, and of making out a clear case of gross neglect by the agent, and of the amount of damages sustained, is somewhat doubtful. The vessel was sold in this country, in the beginning of the year 1824. The first petition presented to Congress, was not until the year 1828, and the case does not yet appear to have been made out so clearly as to have satisfied both houses of Congress, concerning the propriety of allowing it, or, if allowing it, to what extent. But it is stated by the counsel for the petitioner, that reasons did exist for not making an earlier application to Congress, and he offers, in connexion with his own letter, certain documents in explanation of the delay, and which are herewith submitted for the consideration of the Senate, marked B, together with another letter from the son of the petitioner to the department. It is the opinion of the undersigned, that the agent now being dead, and no remedy even on his estate, after this long lapse of time, being probably practicable, in favor of the Government, further evidence ought to be adduced to show that the agent had not reasonable cause to suspect the character of the vessel, it being believed that the Government is not liable for his acts if he had such cause. Whether the agent would not have been liable to Capt. O’Sullivan in that event, in an action at law, is a different question, and which can still be settled with Mr. Forbes’ representatives, if the parties please, and the claim be not barred by the statute of the limitations.
The burthen of proof of the wrong rests here on the petitioner, in resorting to the principal for an alleged wrong committed by the agent. More evidence can be had if there was not cause of suspicion, and especially as appears from the papers, could be had of Commodore Stewart, though he states in his letter, his own impression to have been favorable as to the correctness of the purchase of the vessel.
The circumstance of the purchase of the Dick, being, in some degree, conditional, was well calculated to awaken suspicion in the agent, unless it was counteracted or explained to him before the seizure,
Some cases have been cited by the son of the petitioner as analogous, in which the Government has indemnified its own agents, where recoveries have been had against those agents, for acts which the Government did not deem gross neglects or wrongs, such as Hogdens, Hoyts, and Gelstins, &c.; but the difference in principle is manifest, and in many cases the Government has refused to indemnify the claimants themselves, the original sufferers, unless first showing, with clearness, gross neglect or wrong by the officers in the discharge of their official obligations.
The papers received from the Senate, marked A, are herewith returned.
All which is respectfully submitted,
Secretary of the Treasury.