actual sight is cessary § 8. But actual sight is not absolutely necessary to consti- When tute constructive joint capture. If it be shown that the asserted joint captor was in sight when the darkness came on, and that not neshe continued steering in the same course by which she was before nearing the prize, and that the prize itself also continued the same course, it amounts almost to a demonstration that the vessels would have seen, and been seen by each other at the time of capture, if darkness had not intervened. In such a case, the vessel so pursuing is let into the benefit of joint capture. But, if the seizure is made at such a distance from the asserted joint captor that she could not have been in sight if it had been day, the claim cannot be sustained.' chase § 9. In respect to joint chase, much depends upon whether of joint the vessels are acting in association, or separately with a common object in view. In the latter case, the question of actual or constructive sight will generally determine the claim to joint capture, as stated in the preceding paragraph. If the claimant, or the prize, changed her course in the night, and, at the time of actual capture, could not have been seen by each other in daylight, the mere fact that the chase had the effect of throwing the prize into the hands of the actual taker will not vary the case. Constructive captures are never allowed to be deduced from such assistance, whether designed or accidental.2 after § 10. No antecedent or subsequent services in the expedition Services will entitle a party to the benefit of joint capture, where he before and would not otherwise be entitled to share. Thus, a ship of war capture sent for reinforcements to Lord William Bentinck, on hearing the firing of the fleet upon Genoa, returned from Leghorn, and was in sight at the time of the capitulation; but, as the ship was ignorant of the object of the attack, and the captors were the prize was realised. She must have been so situated, as to be able, of her own accord, to contribute direct assistance to the captors, by deterring the enemy from resistance, or by aiding physically in overcoming such resistance, and the vessel to be aided must have possessed the means of communicating intelligent directions to the one whose aid was needed. The Acts of Congress, on the subject of distribution of prize money, contemplate that it shall be shared among vessels, which, at the time of the capture, were in view of each other, so as to be able to receive and respond to signals correctly. A vessel, claiming to share in the proceeds of a capture, must show that she was within signal distance of the vessel making the prize, in circumstances which might have justified the capturing vessel in demanding and expecting her assistance. (The ‘Anglia, Blatchf. Pr. Cas., 566.) The 'Union,' 1 Dod. R., 346; the 'Financier,' 1 Dod. R., 61. 2 The Neimen,' 1 Dod. R., 9; the 'Mélanie,' 2 Dod. R., 122. Vessels in same service ignorant of her approach, she was not allowed to come in as a joint captor. So, of a ship of war which was despatched to join the contingent expedition against Buenos Ayres, but did not arrive till after the surrender.1 § II. In respect to captures made by ships which are assoassociated ciated in the same service or joint enterprise, under the same superior officer, as a general rule all are entitled to share as joint captors, although not in sight at the time of capture. The fleet so associated is considered as one body, acting together for one single object, and what is done by a part enures to the benefit of all. The only question to be considered is, whether the capturing ships at the time the capture was made composed, de facto, a part of the particular fleet. Thus, where a capture was made by ships composing part of a squadron employed in the blockade of the Texel, out of sight of the fleet and without any concurrence in chasing, the court held that the blockading fleet were all joint captors. So, where a prize coming out of or entering a blockaded port is taken by one of the ships of a blockading squadron stationed off the mouth of the harbour, while the rest of the squadron, maintaining the blockade, are stationed at some distance. In the case of the 'Guillaume Tell,' a squadron was stationed to watch the harbour of La Vallette. The prize, in attempting to escape, was pursued and taken by a part of the squadron, while the others remained stationary. The claim to joint capture was allowed, notwithstanding the physical impossibility of active co-operation, arising from the state of the wind.2 Mere associa tion not § 12. But mere association is not sufficient to entitle vessels to share as constructive joint captors; they must have a milisufficient tary character, and be capable of rendering military service; 1 The 'Buenos Ayres,' 1 Dod. R., 28; 'Genoa and Lavona,' 2 Dod. R., 88. The 'Harmonie,' 3 Rob., 318; the 'Henriette,' 2 Dod. R., 96; the 'Guillaume Tell,' Edw. R., 6; the 'Empress,' I Dod. R., 368. But where a capture was made of a blockade-runner, between the several vessels forming the blockading squadron, but the capture took place after a chase, which carried the runner and the capturing vessel out of sight of the other members of the squadron--Held, that the latter vessels were not entitled to share in the proceeds of the prize, which is confined by the laws of the United States to two classes of vessels, those making the capture, and those within signal distance of the vessel making the capture. (The 'Cherokee,' 2 Sprague, 235.) Vessels and cargoes seized for violation of the laws of blockade, or as enemy's property, are prizes of war under the law of nations, and not under municipal authority. (The 'Nassau,' Blatchf. Pr. Cas., 665.) in other words, there must be an animus capiendi. Thus, a ship forming part of a blockading squadron, but totally unrigged, and incapable of rendering any service at the time of capture, is held to be as much excluded as one totally unconscious of the transaction; because by no possibility could that ship be enabled to co-operate in time. So of transports and store ships, although associated in the same service with the actual captor, if destitute of a military character, and incapable of rendering assistance, they cannot be regarded as joint capIt is not sufficient that the enemy may have been intimidated by the presence of such vessels. Mere intimidation may be produced without any co-operation having been given or intended. If a frigate were going to attack an enemy's vessel, and four or five large merchant ships, unconscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but such terror would not entitle them to share in the prize as joint captors.1 tors. § 13. Convoying ships are under no disability of claiming Convoying as joint captors an account of their employment, if, in other ships respects, entitled to share in the prize, unless the capture is made at such a distance as would remove them from the performance of the special duty of protecting their convoy. Being military ships and capable of rendering assistance (where not interfering with this special duty), they are entitled to all the benefits of constructive capture, whether the construction arises from association, sight, or otherwise. But if the convoying ship desert her duty, she forfeits all benefit of capture.2 vessels § 14. If a vessel be detached from the fleet at the time of Detached capture, so as to separate her from the joint object, she cannot be considered as a constituent part or member of the association, and cannot claim the benefit of joint capture with the fleet, nor can the fleet be allowed to come in as joint captors in any prize taken by her after she was detached. Thus, where two vessels of a blockading squadron were sent to look out for an enemy's ship and captured her, the rest, which maintained their station, were held not entitled to share. So, where two vessels were detached, one by stress of weather and another in chase, they were held not entitled to share in a 1 The 'Cape of Good Hope,' 2 Rob., 274; the 'Twee Gesuster' and 'Le Franc,' 2 Rob., 284, note. 2 The 'Waaksamheid,' 3 Rob., 1; the 'Fury,' 3 Rob., 9. Joint captures by capture made in their absence. But where two vessels were sent to chase and the rest of the fleet were bearing up to support them, the claim of the latter to joint capture was allowed. And a ship, forming a part of a blockading squadron and continuing as such, although temporarily detached at the time of the summons, and not returning till after the capitulation of the place so blockaded, was, nevertheless, entitled to share as joint captor with the rest of the blockading force. So, a ship in joint chase of one vessel, being ordered by a superior to chase another, the two chasing vessels are regarded as associated for the joint object of capturing both of those chased, and, although only one is captured, they jointly share in the prize. But if neither received nor was actually under the orders of the other, or of a common superior, the case would be different.1 § 15. When land and sea forces act in conjunction, and no land and express provision is made by statute for the distribution of sea forces prizes taken by their joint operation, resort must be had to the principles established by judicial decisions. It has been held that a mere general co-operation, in the same general objects, will not be sufficient to make land forces joint captors with a fleet; there must be an actual assistance and co-operation in the particular capture. Where there is pre-concert, a very slight service is sufficient. So, where soldiers are landed on the coast, to co-operate with a fleet, in a conjunct expedition, or in a particular engagement, they are entitled to share in the capture. In the case of a claim on the part of the army to share in a capture made by the fleet, the onus probandi lies upon them to show that there was an actual co-operation on their part, assisting to produce the surrender. Without a preconcert, or conjunct expedition, they are not entitled to the benefit of constructive capture; therefore, to establish a claim of joint capture between them, there must be a contribution of actual assistance, and the mere presence, or being in sight, will not be sufficient. Between public ships of war, there is always conceived to be a privity of purpose, which constitutes a community of interest; and this community of interest extends to public ships of different countries, if allies; but between land and sea forces, acting independently of each other, no 1 The 'Forsigheid,' 3 Rob., 311; the 'Island of Trinidad,' 5 Rob., 92 ; the 'L'Etoile,' 7 Dod. R., 106; the Naples Grant,' 2 Dod. R., 273; the 'Nordstern,' cited, Edw. R., 126; the 'Cherokee,' ante, p. 374. such privity can be presumed. Hence, the difference of the rules applicable to the two cases.1 § 16. The public ships of allies, serving together, are entitled By public ships of to share in captures, the same as those of a single belligerent. allies There is no difference in this respect, whether the benefit of joint capture goes to the government or to the vessels, their commanders and crews. If, of two allied joint captors, the government of one has made a grant of the prize, and the other has not, the condemnation will be, in the former case, directly to the joint captor, and in the latter to the government, according to the share of each. A question may, however, arise, in case of joint capture by allies, with respect to the court which shall be entitled to adjudicate upon the capture.2 captures § 17. It has already been stated that, as public ships of war Construcare under a constant obligation to attack the enemy wherever tive joint seen, and as a neglect of this duty is not to be presumed, there not alis a privity of purpose, which constitutes a community of in- lowed to terest, and the mere circumstance of being in sight, is sufficient to entitle such a vessel to the benefit of joint capture. But as the same obligation does not rest upon privateers, the law does 1 The 'Stella del Norte,' 5 Rob., 349; the 'Dordrecht,' 2 Rob., 55. By 27 and 28 Vict., cap. 25, s. 34, it is enacted that where, in an expedition of any of her Majesty's naval or naval and military forces, against a fortress or possession on land, goods belonging to the State of the enemy or to a public trading company of the enemy, exercising powers of government, are taken in the fortress or possession, or a ship is taken in waters defended by or belonging to the fortress or possession, a prize court shall have jurisdiction as to the goods or ships so taken, and any goods taken on board the ship, as in case of prize. 2 Phillimore, On Int. Law, vol. iii. §§ 390-401; Ortolan, Diplomatie de la Mer, tome ii., appen. spécial. An ally actually co-operating in effecting a capture cannot sue in the common law courts, but must sue in the prize court. (Duckworth v. Tucker, 2 Taunt., 7.) By 27 and 28 Vict., c. 25, s. 35, 'where any ship or goods is or are taken by any of her Majesty's naval, or naval and military, forces, while acting in conjunction with any forces of any of her Majesty's allies, a prize court shall have jurisdiction as to the same, as in case of prize, and shall have power, after condemnation, to apportion the due share of the proceeds to her Majesty's ally, the proportionate amount and the disposition of which share shall be such as may from time to time be agreed between her Majesty and her Majesty's ally.' By the convention of May 20, 1854, entered into between France and England, it was stipulated (art. 2), that when a joint capture shall be made by the naval forces of the two countries, the adjudication shall belong to the jurisdiction of the country whose flag shall have been borne by the officer having the superior command in the action; and (art. 3) that when a capture shall have been made by a cruiser of either of the two allied nations, in the presence and in the sight of a cruiser of the other, such cruiser contributing to the capture, the adjudication of the case shall belong to the jurisdiction of the country of the actual captor. privateers |