Welcome back to Lawyers & Liquor, as we strive to stay on schedule from here on out and fling open the doors to the afterlife with another edition of Freaky Friday, the monthly macabre legal review of cases, precedents, and stuff that’s just downright creepy in the law! I’m your ghost host, the BOO-zy Barrister, and do we have a ghoulish set of morning reading for you today, all regarding the legal principles of two countries that state while a seaman may go down with the ship, they can’t kill or eat passengers and get away with it at law!
Maritime Murder is today’s topic, so break out those gold-fringed admiralty flags and start denying the authority of the court as we explore the macabre principles and precedents of U.S. v. Holmes and Regina v. Dudley this month on Freaky Friday.
HERE’S A SPOOKY DISCLAIMER! OOOOOH, YOU DON’T HAVE A GHOST OF CHANCE OF GETTING ME TO REPRESENT YOU!
Remember when reading this that you probably shouldn’t be taking legal advice from a sentient whiskey glass on the internet. I’m a lawyer, but folks, I’m not your lawyer, and when we’re talking about crap on here we’re talking about it in the vein of entertainment and education, not legal advice. The only way to get me to represent you is to call my office, make an appointment, have me agree to do so, then pay me a retainer fee of my choosing (you don’t get to PayPal me a dollar out of the blue and have me represent you). If you haven’t gone through all of those steps, there’s absolutely no attorney-client relationship or privilege, and frankly, if you’re planning to rely on a discussion about fucking murdering passengers and eating your shipmates you should probably be talking to someone other than me in the first place. A therapist. A therapist is a nice place to start.
All of that said, please allow me to introduce you to the Headline Ghost, the straw-spirit of our posts who asks inane questions to move this shit along.
THERE IS LITERALLY NO WAY THERE’S LAW ABOUT MURDERING PASSENGERS, BOOZY.
There most certainly is, and not only is it law it’s United States law originating out of the great state of Pennsylvania, where the Liberty Bell is filled with crack and the National Park Service has to stop my clients from trying to smoke it.
I…YOU KNOW WHAT, WE’RE NOT GOING TO TALK ABOUT THAT.
Ben Franklin loved himself some crack. He found it electrifying.
I LIKED YOU BETTER BEFORE YOU THOUGHT YOU WERE FUNNY.
I’ve never liked myself, so you’ve got one up on me fictional voice screaming in my head throughout the night. Should I get on with the story?
Alright, back in 1841 there was this ship called the William Brown. It was an American flagged vessel, back when that meant it was mostly crewed by Americans and not “completely crewed by Americans,” and plied the North Atlantic trade. It was, by all accounts, a nothing special or out of the ordinary. It was a ship. Like just about any other ship out there. Not some big thing, just one of those ships that crossed the ocean, like it set out from Liverpool, England en route to Philadelphia, Pennsylvania to do on March 13, 1841 with a complement of 17 crewman, a load of cargo, and roughly 65 Scottish and Irish immigrants who sought the comforts of a new life in the United States, that bustling land of opportunity and, at this time, President William Henry Harrison. Who I’m certain all of those immigrants were looking forward to having as their President. Unfortunately his death wasn’t going to be the only disappointment to come out of their journey.
THE BOAT SANK.
Okay, first it was a ship not a boat you goddamn cretin, and second yes the ship sank.
About a month out from Liverpool, while plying through the North Atlantic in April as the icebergs roamed, the William Brown decided to channel the spirit of the Titanic from decades in the future and smacked dead on into an iceberg. It was around 10:00 p.m. on April 19, 1841 and at the time she was around 250 miles off the coast of Newfoundland when it happened, and, you know, the boat began to sink. Because that’s what wooden sailing ships do when they hit icebergs in the middle of the Atlantic Ocean. They sink.
Shortly after the water came pouring in, it became pretty obvious the William Brown wasn’t going to stay afloat. At all. And that led to the captain ordering the crew and passengers to abandon the ship – a responsible thing to do! Except for one thing…
THERE WEREN’T ENOUGH LIFEBOATS, RIGHT?
Not at all, my non-gendered-because-you-don’t-exist friend.
There weren’t any fucking lifeboats.
THAT SEEMS….REALLY ILLEGAL.
I mean you’d think so, right? How could a vessel carry passengers, even if it was a cargo vessel primarily, if it couldn’t manage to actually take care of them once it was on the water, right? Even under the common law principles of Duty of Care and Negligence you’d think that there was some general standard of “Oh, yeah, hey, if you hit something in this wide and barren waterlogged death trap it takes over a month to cross you’ll need to make sure the folks paying you to get them to the other side have some way of getting off the ship.”
Maritime law was less “Let’s take care of the passengers, boyos” and more “Fuck you, I will not get my overly fancy shoes with the buckles and shit on them wet” up until the latter half of the 19th century. For instance, it wouldn’t be until 1849 that even the seafaring British would decide “Oh, hey, yeah, we should probably make sure vessels have some basic number of boats on them to save folks” with the United Kingdom 1849 Passengers’ Act, and even then it didn’t base the number of boats off the number of passengers but rather the size of the vessel dictated the number of boats. So, I mean, what I’m getting at here is that in 1841, on a U.S. flagged vessel, there was absolutely no law requiring the carrying or usage of lifeboats. Sure, a vessel owner could choose to have some extra boats just sitting around, but it was by no means required or even common because – and this is important – travelling across the fucking ocean was not a common thing for passengers to do.
There was no “tourist trade” as it is thought of today. There weren’t any real passenger vessels that were seagoing as they are thought of today. They most common form of folks going across the ocean were as passengers on any variety of cargo vessels, and that’s just how it was my fine folks. So the law was, in general, just not concerned with regulating something that wasn’t that large to begin with – namely the safety of paying passengers on vessels crossing the ocean and minimal vessel safety standards.
WAIT, IF THERE WERE NO LIFEBOATS WHAT DID THEY USE?
Good question, and the short answer was “whatever boats they did have.”
Back in those days most ships actually did carry at least a couple smaller boats with them. For instance, the “jolly boat,” which despite the name was not a term for a love nest dangerously close to water, was a small four-five person craft used for fucking around to shore. Likewise, the longboat, which would hold anywhere from 12-20 people depending on the size, was for longer excursions to the shore when one of these majestic vessels dropped anchor in a place with no dock or harbor. And, for a cargo ship with a crew of seventeen, either of those would have served as adequate backup in the event their ship sank due to an iceberg.
And remember, these were primarily cargo vessels. Passengers were an afterthought of the trade, not the purpose of it. So ship owners would say “Yeah, we really only need enough in the way of emergency transport to get the crew off, and we could probably cram a couple extra folks in a longboat in a pinch, so we’re pretty well set on this shit.”
Which is cool and shit until you think about the fact that those two vessels provided, at best, seating for 25 people and were built with those numbers in mind, whereas the William Brown had 17 crewmembers and 65 passengers on board…about 82 people total.
No goddamn way was that many fitting into a jolly boat.
I’M HEARING A LOT ABOUT THE SEA AND NOT A LOT ABOUT THE LAW, SAILOR BOY.
Hold on, we’re getting to it, because, if you remember, the William Brown was definitely going down faster than an enthusiastic date on the ride home. With 17 crewman and 64 passengers (sometimes people died of non-sinking shit), you can do the simple math, and, in the end, 31 people would go under the seas with the ship but not a single goddamn one of them would be a member of the crew, who had promptly swung out the jolly boat and the lifeboat and clamored their happy asses inside. To their credit, though, they did take on 33 of the passengers, one in the jolly boat with the captain and the rest in the longboat with the first mate and eight other crewmembers.
For those of you who suck at math, that meant there were about 42 people in a boat that was designed for about 20. Maximum. So it was riding pretty low to the water at that point as well.
Oh, and the boat was leaking even as they rowed it away from the foundering William Brown, with the plug in the bottom of it having seemingly been lost and the folks aboard just shoving whatever the hell the could in the hole left by it. While bailing the longboat out. And telling the people who were definitely about to fucking die on the William Brown that they’d probably sink themselves shortly thereafter. What I’m getting at is sea travel in the 19th century was fucking brutal.
OH, IS THE WHOLE LEGAL PART OF THIS ABOUT HOW THE WHOLE CREW ABANDONED THE SHIP AND LEFT 31 PASSENGERS TO DIE WHILE SAVING THEMSELVES?
It’s about the passengers the crew in the longboat did save from the sinking vessel, and how the crew just straight up tossed like 14 of them into the ocean to die.
See, a boat of that era was designed to take so much weight and such before going under. And the longboat was not designed for 42 people to be hanging around in it, especially not while flooding. Add into this the fact that the a storm and some rough seas started to swamp the already low-in-the-water vessel and it would tip easily and…you get the picture.
So, in that situation, the crew decided to do what any self-respecting mariner would do when entrusted with the lives of the passengers and their safety and forced 14 motherfucking passengers over the side of the longboat into the freezing waters. This was at the behest of the first mate, who had told his men “You know what to do,” or something of that nature, and the crew was like “Yup, somebody ain’t gonna go visit Aunt Ethel this year” and started chucking passengers out of the boat. By the end of the massacre, the only people left in the longboat were the crew, two married men, and a young boy.
Oh, I should mention that they didn’t lose their chivalry, though. With the exception of two women who jumped in after their brother, all of the fourteen forced out were single guys of age. Women, children, and married men got to live so…fellas, make sure you propose before any significant ocean voyages.
…I MEAN, AT LEAST THEY HAD SOME MERCY…
Did I mention that the morning after they threw 14 folks into the ocean they found two guys hiding like “please no” in the longboat and just chucked them to the angry sea gods as well?
CAN WE GOT TO THE LAW PART?
Oh, fine. Spoil sport. I wanted to talk about maritime mass murder a little while longer.
So, long story short, a vessel found the longboat and picked them up, taking the surviving crew and passengers on to Philadelphia, the initial port of call. Once there, however, the whole crew of that longboat promptly got the fuck out of town. Meanwhile the passengers toddled down to the federal court to register what was likely the worst TripAdvisor rating ever seen. Their complaint, to wit, was 16 counts of straight up murdering passengers. Which, I mean, remember that next time you feel the need to complain about the housekeeping service not leaving a mint on your pillow.
Criminal complaint registered, the court sprung into action to hold those responsible accountable and promptly called forth the owners of the ship, the shipping line, the captain of the vessel, and everyone else who could have taken action or initiated policies to make the passage safer. Or, you know, they took a look around Philadelphia and found the only crewman from the lifeboat without the good sense to get the hell out of Dodge, a kid named Alexander Holmes, and decided “You know what? Good enough. Let’s charge this one guy who wasn’t an officer with homicide on behalf of the entire fucking crew.” Because justice sometimes doesn’t give a shit, and executives escaping the scope of the law isn’t anything new.
THAT…DOESN’T SEEM FAIR.
I mean, it doesn’t but it does? Because despite me using the word “kid” earlier, turns out Mr. Holmes was an experienced sailor who, according to the testimony in the court, may have actually been slightly more in charge of the boat that the first mate at that point – but likely because the first mate had little or no desire to make what Holmes was viewing as a necessary decision. And, considering the court records and testimony actually show that Holmes may have ran back onto the sinking William Brown to save a sick kid, it’s hard to paint him as some weirdly evil character here. In fact as would be shown in the court records, Holmes didn’t take any action (nor, arguably, did any of the other sailors) to commit the passengers to the deep out of an insatiable bloodlust legendarily associated with Philadelphians, but rather out of necessity.
Which is a real legal defense on par with self-defense.
HOW WAS DROWNING PEOPLE NECESSARY?
See, okay, here’s the thing. “Necessity” as a defense to a criminal charge is basically saying “Yes, I did this horrible thing. However, I only did it because if I didn’t do it I thought there was a real threat of some greater harm that would happen if I didn’t which I had no part in creating, and I didn’t have any other choice but to do this criminal thing.” In other words, Holmes’s defense was “Okay, yeah, we threw those folks to their deaths, but if we hadn’t something much worse would have happened and we didn’t have any other choice.
In essence, Holmes was arguing that if they didn’t through people overboard, then whole vessel would sink. Therefore, it was necessary for Holmes and the crew to drown people, because otherwise everyone in the longboat would die. Which may have worked except for two things:
- Holmes was not the only crewman left;
- Holmes was only charged with the manslaughter of one specific passenger – a Mr. Askin. [Insert an “Askin’ for it” joke here.]
WHY IS THAT IMPORTANT?
To take the last thing first, the defense of necessity can justify a lot of stuff. Think about breaking a car window to save a baby locked inside it on a hot day. Sure, you’re engaging in destruction of property, but there’s a greater harm that would result – the death of a child or severe injury to one – if you didn’t. Or, for instance, setting someone’s property on fire to create a fire break and save a town. That’s a key factor in the defense itself: what is the relative value of the harm caused by the action versus the harm that is likely to result if the action wasn’t taken?
And that works great for things like damaging property to save lives or burning down one house to save 20, but when you’re measuring the lives of people it becomes harder. How do you measure the relative value of Person A versus the harm caused by saving Person B? You can’t. Like you honestly can’t. That’s why necessity defenses generally will not apply when you are taking one life to save another (or even several other) lives. It may mitigate the harm, but it will never truly relieve it – unless the person whose life you’re taking is the source of the ultimate danger.
And I hear you out there saying “But Boozy, by throwing the people overboard he was actually helping to save more people!” which was raised, certainly, and discarded because (1) there was no warning and choice given to any of the people being tossed overboard, (2) only passengers were thrown overboard, and none of the crew, and (3) the charge wasn’t for everyone, but rather one specific death – that of Mr. Askin.
Which is important, because it made the trial court weigh the life of Askin against Holmes specifically and not against that of everyone else. The question became “in this situation, should the death of one specific person over another be considered necessary.” The question wasn’t “was it necessary or not that anyone go overboard.” And in that situation, when asked to say that in a circumstance where every other crewman was alive and either Holmes or Askin should be forced to drown to save the vessel, Holmes had no necessity defense to sacrificing the life of a passenger over his own.
Which came into play more when the court considered the relative duties of crew versus a passenger. A crewman, the court noted, was responsible for the safety of a vessel, its cargo, and everyone aboard it. As such, according to the court, Holmes had the obligation to place the value of a passengers life over his own…and therefore, where his own death would not result in a greater harm to others, chose to sacrifice his life. Had there been only enough crewman to safely handle the longboat, the situation may have been different. But at that point there were numerous crewmen available, of which Holmes was one.
Or, as the court put it in flowery language:
The sailor (to use the language of a distinguished writer) owes more benevolence to another than to himself. He is bound to set a greater value on the life of others than on his own. And while we admit that sailor and sailor may lawfully struggle with each other for the plank which can save but one, we think that, if the passenger is on the plank, even “the law of necessity” justifies not the sailor who takes it from him. This rule may be deemed a harsh one towards the sailor, who may have thus far done his duty, but when the danger is so extreme, that the only hope is in sacrificing either a sailor or a passenger, any alternative is hard; and would it not be the hardest of any to sacrifice a passenger in order to save a supernumerary sailor?U.S. v. Holmes, 26 F. Cas. 360 (E.D.Pa. 1842)
And so the court struck down the concept of the “law of the sea” in drawing lots to decide who goes into the drink, essentially saying “necessity will not allow for murder where there are other alternatives available, and where the person claiming it is a crewman whose life is less valuable by way of duty than a passenger.”
Alright. So where there’s extra sailors, a sailor should sacrifice their life for that of a passenger because of duty.
The court’s holding was specifically based on the idea that losing one sailor would not result in an increased risk to the remainder of the passengers and crew in the longboat. Had Holmes taken the plunge himself, there still would have been eight sailors in that vessel able to assist and keep it afloat. The court even went out of the way to make this clear, stating:
The captain, indeed, and a sufficient number of seamen to navigate the boat, must be preserved; for, except these abide in the ship, all will perish. But if there be more seamen than are necessary to manage the boat, the supernumerary sailors have no right, for their safety, to sacrifice the passengersId.
The implication, then, is that the crew should have decided who amongst them should die before killing passengers, and due to the higher value a crewman has to put on the lives of passengers, have been willing to pay that cost. And how to decide? Well, the court suggested that they should have drawn lots amongst themselves then, and only then, have drawn lots amongst the passengers to determine whose live wasn’t really all that important no matter how smart and handsome their mother told them they were.
SO IT’S NEVER OKAY TO JUST CHUCK A PASSENGER OFF THE BOAT?
That’s the funny thing is the court in Holmes doesn’t say that. What the court in Holmes is basically saying is that, where there are enough seamen to operate the boat safely, and then some are there in addition to that number, the crew should decide who amongst themselves should be consigned to the briny deep before turning to the passengers. But in a situation where there were just enough crewmen to man the boat and no more, the court seems to imply that, while not a perfect defense to murder, necessity would mitigate the circumstances surrounding the chucking of a passenger overboard. In that case, there’s no higher duty assigned to the crew as they have a duty to the passengers as a whole and must remain to tend the ship and others, and while necessity in this circumstance wouldn’t justify the taking of a life completely, it would make it less serious because of the circumstances surrounding it.
But how do you get over the whole “someone’s gotta go over and this fucker has had it coming” aspect, which could transform what should be a cold and calculating decision on who lives and who dies to one of malice aforethought (a component of murder versus, say, manslaughter)? Well, luckily the court has a suggestion: chance. Leave questions of life or death up to pure chance, like granny frittering away the inheritance in the ships casino. Then, if the unlucky person draws the short straw and protests, toss their asses into the drink.
Or as the court put it:
When the selection has been made by lots, the victim yields of course to his fate, or, if he resist, force may be employed to coerce submission.Id.
Yeah, it does, doesn’t it? And that’s the story of a high seas series of deaths at the hands of desperate crew, and how a court found that necessity wasn’t a defense in this situation. However, don’t feel too bad. Holmes ended up sentenced to 6 months imprisonment at hard labor and a $20.00 fine, because, frankly, everyone sort of got that he made a decision is a rough situation with no really clear precedent.
And that’ll wrap us up for this Freaky Friday as we….
BUT WHAT ABOUT THE CANNIBALISM YOU MENTIONED?
We’ll get to that next Friday.
Because as horrible as tossing folks out to die sounds, apparently eating a teenager is part of the law of the sea as well.
Until then, I remain….
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