Capture before and admiral, under whose direction the convoy was to be furnished, ordered a deviation for the purpose of taking convoy at another place, the court felt itself bound to uphold the acts of the admiral. Such a deviation was placed on the same ground as that caused by stress of weather.' $25. The effect of a deviation from the direct voyage after described in the license, by touching at an intermediate port, deviation depends in some degree upon the time of capture. If such vessel be seized on her way to such intermediate port, the presumption of law is that she was going thither for the purpose of violating the license. But if taken after leaving the intermediate port, with the identical cargo which she carried in, and while actually proceeding for her lawful destination, the presumption of mala fides would be removed. Touching at an interdicted port vitiates the license, unless expressly permitted in the license itself.2 Time § 26. The fifth point to be considered is the time limited in the license. There is a material distinction between the construction of a license for the exportation of goods to an enemy's port, and one for an importation merely. Where the license requires that the goods to which it relates shall be exported on or before a certain day, a delay for a single day beyond that which is specified, renders the license wholly void. But not so with respect to importations. If the party having a license be prevented from commencing the voyage, or be delayed in its prosecution by stress of weather, the acts of a hostile government, or other similar cause, over which he has no control, the time thus consumed is not to be considered in computing the period that the government intended to allow. But if he takes upon himself, at his own discretion, to extend the period specified, he loses the protection to which he would otherwise have been entitled.3 Where, in a license to export from London to Calais 100 hogsheads of tobacco, it was provided that the license should 1 The 'Minerva,' Edw. R., 375; the 'Anna Maria,' 1 Dod. R., 209. 2 The 'Europa,' 1 Edw. R., 342; the 'Frau Magdalena,' 1 Edw. R., 367; the Hoppet,' 1 Edw. R., 369. 3 The Sarah Maria,' 1 Edw. R., 361; the 'Diana,' 2 Act. R., 34; the Eolus,' 1 Dod. R., 300; Williams v. Marshall, 6 Taunt. R., 390; Tullock v. Boyd, 7 Taunt. R., 468; Freeland v. Walker, 4 Taunt. R., 478; Effurth v. Smith, 5 Taunt. R., 329; Siffken v. Glover, 4 Taunt. R., 77; Leevin v. Cormac, 4 Taunt. R., 483; Siffken v. Allnut, 1 M. and Sel., 39; Groning v. Crockatt, 3 Camp. R., 55. remain in force for two months from the date, and no longer, it was held to be not sufficient that the goods were shipped before the expiration of the time; and the license having expired before the voyage commenced, the Court of King's Bench decided that the exportation of the goods could not be protected by it.' Again, no mistake as to the necessity of a license, and no presumption as to the harmlessness of any particular commercial venture, will have the slightest effect in saving British property from condemnation, when captured on an unlicensed voyage of trade with the enemy. 'By the law and constitution of this country,' says Lord Stowell, 'the Sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcileable with the general interest of the State. It is for the State alone, on more enlarged views of policy, and of all circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opinion no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the State. Who can be more insensible to the consequences that might follow if every person, in time of war, had a right to carry on commercial intercourse with the enemy, and, under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience, on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government charged with the care of the public safety?' 2 1 Vandyck v. Whitmore, 1 East. R., 475. 2 Per Lord Stowell, 1 Rob., 199. A license for a voyage from the enemy's country, though granted after the voyage is commenced, is sufficient to legalise the voyage as against any persons who become captors after the date of the license. A license has no retrospec tive ac tion If not on board, or not en dorsed If its date § 27. A license does not act retrospectively, and cannot take away any interest which is vested by law in the captors. Thus a vessel was captured on January 24, with an expired license on board. Another license was obtained, and its date carried back to January 20. It was held by the court that the vessel at the time of capture was not protected either by the license which had expired or by that subsequently obtained.' § 28. Moreover, a license, not on board at the time of capture, but afterwards endorsed for it by the shipper, is no protection. If the license be general in its terms, the mere fact of its being found on board is not sufficient, unless it has been appropriated to such ship by an endorsement to that effect, or by some positive evidence that this application was intended by the parties entitled to its use. These rules are obviously necessary to prevent a misapplication of the license by persons not having a right to avail themselves of its protection,2 § 29. A license is vitiated and becomes a mere nullity by be altered an alteration of its date. In this respect licenses are governed by the same rules as other grants issued by the supreme power of the State; they are utterly vitiated by any fraudu (Henry v. Stanniforth, 4 Campbell R., 270.) A vessel homeward-bound on a licensed voyage is also not liable to condemnation while proceeding on such voyage, though the time limited by the license has expired. (The 'Acteon,' 2 Dod. R., 53.) But in such a case proof must be given of circumstances, such as an embargo, or the force of the elements, or other reasonable impediments, which will explain the delay, in order to protect from British cruisers a vessel found at sea on an illegal voyage after her license has expired. (The 'Goede Hoop,' Edw. R., 327.) And as a general rule it is to be understood that, where no fraud appears to have been committed or meditated, and where the parties have been prevented from carrying the license into literal execution by a power which they could not control, they will be entitled to the benefit of its protection against seizure, although the terms may not have been literally and strictly fulfilled. 1 Duer, On Insurance, vol. i. p. 618; Wildman, Int. Law, vol. ii. p. 265; the 'Vrouw Deborah,' 1 Dod. R., 160; the 'St. Ivan,' Edw. R., 376; the 'Edel Catharina,' 1 Dod. R., 45; Henry v. Stanniforth, 4 Camp. R., 270. 2 The 'Speculation,' Edw. R., 344; the 'Fortuna,' Edw. R., 236; the 'Carl,' Edw. R., 339. Where a license had been burnt intentionally, but under a mistake, the Vice-Admiralty Court of Nova Scotia, upon proof of the fact, ordered the vessel to be restored, the captors' expenses being first paid. (The 'Frederick Augustus' (1813), J. Stewart's Vice-Ad. R. of Nova Scotia, 486.) lent alteration, and any change is prima facie fraudulent. It may, however, be explained.' &c., by a § 30. A license to trade with a port of the enemy does not Breach of serve as a protection for a breach of blockade, in case the blockade, port is blockaded; nor does it afford any protection for carry- licensed ing goods contraband of war, enemy's despatches, or military vessel persons, or for a resistance of the right of visitation and search; in fine, it can cover no act not expressly mentioned in the license or implied as a means necessary for its execution.2 'The 'Louise Charlotte,' 1 Dod. R., 308; the 'Aurora,' 4 Rob., 218; the 'Diana,' 2 Act. R., 54. 6 The Nicoline,' i Edw. R., 364; the 'Actæon,' 2 Dod. R., 54; the 'Byfield,' 1 Edw. R., 190. Of cap tures CHAPTER XXXI RIGHTS AND DUTIES OF CAPTORS 1. Of captures generally-2. Of maritime captures-3. The Naval Prize Act, 1864-4. Title, when changed-5. Where prizes must be taken— 6. Of joint captures generally-7. Constructive captures by public vessels of war-8. When actual sight is not necessary-9. Of joint chase-10. Antecedent and subsequent services-11. Ships associated in same enterprise-12. Mere association not sufficient-13. Convoying ships-14. Vessels detached from fleet-15. Joint captures by land and sea forces-16. By public ships of allies-17. Constructive joint captures not allowed to privateers-18. Revenue cutters under letters of marque-19. Joint captures by boats-20. By tenders -21. By prize masters-22. By non-commissioned vessels-23. Public vessels of war and privateers, &c.-24. Effect of fraud on claims to benefit of joint capture-25. Distribution of prize to joint captors-26. Distribution of head money-27. Collusive captures28. Forfeiture of claims to prize-29. Probable cause-30. Liability of captors for damages and costs-31. Of owners of privateers—32. Duties and responsibilities of prize masters and prize agents. § 1. WE have discussed, in the preceding chapters, the generally general rights of war over enemy's property, or property rendered hostile by the acts of its owners, or by the circumstances of its use or disposition; it remains to point out more particularly the rights and duties of its captors. As a general principle, capture is not dependent upon the element on which it happens to be made; nevertheless, usage and the decisions of courts have established rules for maritime capture, very different from those applicable to captures on land; and while the latter have, for a long time, undergone very little change, the former have been moulded into a system of regular practice. This has resulted, in part, from the fact that title to 1 If the sovereign of the country, to which a ship belongs, or any other sovereign not at war with the former, from motives of necessity arrest a ship either in port or at sea, with a view to restore the ship and goods, or to pay the value to the owner, this is not prize, but is an arrest or detention of princes.' The arresting or taking ships for the purpose of prize is 'capture.' If a neutral ship be arrested at sea, and carried into a port, under pretence that she belongs to an enemy, this is capture, because it is done as an act of hostility. |