Captures by re venue cutters By boats not give them the benefit of the same presumption of an animus capiendi. They generally clothe themselves with commissions of war for private advantage only; and, however allowable this may be when combined with other considerations of public policy, it will not lead to the same inference, as in the case of public ships of war. Hence, the animus capiendi of a privateer must be demonstrated by some overt act, by some variation of conduct, which would not have taken place, but with reference to that particular object, and if the intention of acting against the enemy had not been entertained. A different rule would induce privateers to follow in the wake of public ships of war, and keeping in sight of them, merely to become entitled to the joint benefits of the captures which they might make. But a public ship of war is entitled to the benefit of constructive joint capture, where the actual taker is a privateer, the same as though both were vessels of war. The reason of this rule is obvious.1 § 18. Revenue cutters are sometimes furnished with letters of marque and cruise, beyond the ordinary limits of their duty as coast-guards, for the purpose of capturing enemy's merchant vessels. They are public vessels, but not public vessels of war, and, with respect to the benefits of joint capture, are, by English courts, considered in the light of privateers, and the rule of constructive assistance, from being in sight, does not apply to them; for, not being under the same obligations as king's ships to attack the enemy, they are not entitled to the same presumption in their favour.2 § 19. With respect to captures made by boats, it is a general rule, that the ships to which they belong are entitled to share as joint captors; or rather, the capture is considered as made. 1 The 'L'Amitié,' 6 Rob., 261; the Santa Brigada,' 3 Rob., 52; Talbot v. "Three Briggs,' 1 Dallas R., 95; ‘La Flore,' 5 Rob., 238; the 'Galen,' 2 Dod. R., 19. See, as to privateers, ch. xxii. § 25. 2 Phillimore, On Int. Law, vol. iii., § 395; the 'Bellona,' Edw. R., 63. When it appeared that the prize property was captured by a United States steam transport ship, no other vessel co-operating therein or being within signal distance at the time, and that the prize vessel was of inferior force, the court, to carry into effect the Act of June 30, 1864, allowing vessels not of the navy to share in a prize in certain cases, referred it to a commissioner to report the names and employments of the captors on board the transport ship present, and engaged in the capture, and the relative compensation properly allowable to them severally. (The Emma,’ Blatchf. Pr. Cas., 607.) by the ship, the boats being a part of the force of the ship. But if the capturing boat has been detached from the ship to which it belongs, and attached to another, only the ship to which it is attached at the time of capture shares in the prize. Mere constructive capture by boats, will hardly entitle the ships to which they belong, to be allowed to come in as joint captors, for the fact of boats being in sight, does not necessarily raise the presumption of assistance, by the intimidation of the enemy, and the encouragement of the friend. Thus where the boats of a ship, lying in a harbour, were within sight of a capture, it was held that the ship could not be allowed to share as joint captor.' § 20. Captures made by tenders are regulated by the same By tenders rules as those made by boats, the ship to which the tender is attached being entitled to share, however distant she may be at the time of capture. But, in order to support the averment that the claimant was the principal, and the capturing vessel a mere tender, it must be shown, either that there had been some express designation of her as of that character, or that there had been a constant employment and occupation in a manner peculiar to tenders, equivalent to an express designation, and sufficient to impress that character upon her.2 § 21. Prizes hold the same relation to their captors, as do By prize the boats of the same vessel. Hence, prize interests acquired masters by a prize master on board of a captured vessel, enure to the benefit of the whole ship's company. This is the natural and reasonable result of that community of interest existing between the prize master and prize crew, and the capturing vessel, the former being merely temporarily detached to take the prize into port, but without any real separation of object or interest.3 commis § 22. The general rules of joint capture for commissioned By nonprivateers, are also applicable to non-commissioned vessels; sioned with this distinction :—that all captures by the latter must be vessels condemned to the government as droits of Admiralty, the captors only receiving compensation in the nature of salvage, 1 The 'Anna Maria,' 3 Rob., 211; the 'Odin,' 4 Rob., 318; the 'Mélomane,' 5 Rob., 41. 2 Wildman, Int. Law, vol. ii. pp. 334, 335; the 'Carl,' Spinks R., 261; the Island of Curaçoa,' 5 Rob., 282, note. 3 The 'Anna Maria,' 3 Rob., 211; the Mélomane,' 5 Rob., 41; the 'Belle Coquette,' 1 Dod. R., 18; the 'Nancy,' 4 Rob., 327, note. which is usually awarded by the prize court, where their conduct has been fair; and, in cases where there has been great personal gallantry and merit, the whole value of the prize is given them. Where a vessel has a commission against one enemy, but none against another whose property is captured, it is regarded as non-commissioned with respect to that particular capture. If, at the time of the capture by a vessel commissioned by a letter of marque, the master of the capturing vessel be not on board, the capture is considered as made without commission, and enures to the government. So of a vessel fitted out and manned by a ship of war, and acting without any authority or commission; unless brought within the definition of a tender, it is deemed a non-commissioned vessel, and its captures enure, not to the benefit of the manof-war, but to the government. But the question whether the capture is made by a duly commissioned captor, or not, is one between the government and the captor, with which claimants have nothing to do; they have no legal standing to assert the right of the State.1 § 23. Where a privateer or a non-commissioned vessel is 1 The 'Charlotte,' 5 Rob., 280; the 'Dos Hermanos,' 2 Wheat. R., 76 ; the 'Cape of Good Hope,' 2 Rob., 274. The profits of a capture made by individuals, acting without a commission, enure to the government, but it has not been the practice to exact them. It has been their practice to recompense gratuitous enterprise, courage, and patriotism, by assigning the captor a part, and sometimes the whole of the prize. (1 Op. Att.-Gen., 463.) Under the Acts of March 25, 1862, and July 17, 1862 (12 Stat. at L., 375, 4; and 607, 6), an armed merchant vessel, not in the service of, and having no commission from, the United States, although she is present at the capture of a prize and co-operates therein, is not entitled to share in the proceeds. (The 'Merrimac,' Blatchf. Pr. Cas., 584.) The British Court of Admiralty, in 1814, held that the mere employment of a ship in the military service of the enemy was not a sufficient setting forth for war to entitle a recaptor to condemnation under the terms of the existing prize act, but that if there was a fair semblance of authority in the person directing a vessel to be so employed, and there was nothing upon the face of the proceedings to invalidate it, the court would presume that he was duly authorised. The commander of a single ship may be vested with this authority as well as the commander of a squadron. (The Georgiana,' 1 Dods., 397.) In the case of the Castor' (Lords of Appeal, 1795), the authority of the commander of a fleet was considered sufficient. In the case of the 'Ceylon' (1 Dods., 105), it was held that the employment of a ship for purposes of war under the authority of the Governor of the Mauritius was sufficient to constitute it a public ship of war. No particular inconvenience can arise from the practice; the only question is whether the prizes taken should be condemned to the individual captor or to the government, but the decision either way could afford but little consolation to the captured. vessels of war and the actual captor, and a man-of-war only a joint captor, the Public latter has no right to dispossess the former, but is entitled to put some one on board to take care of the interests she may privateers have in the capture. It is not essential, but a measure of proper precaution and of great convenience, that an interest should be asserted at the time. Where expenses were incurred by the actual captor in consequence of an omission of this precaution, they were directed to be paid out of the proceeds. Where a man-of-war and a privateer were joint chasers, and the privateer came up first, and struck the first blow, but the man-of-war was the actual taker, they were held to be joint actual captors. A man-of-war cannot dispossess a privateer, or a vessel under letters of reprisals, or a non-commissioned ship, which is an actual captor. If a prize be made by two or more privateers, they share proportionally, according to the number of men of which their respective crews consist.3 claims for § 24. Any misconduct or fraud on the part of the capturing Effect of vessel, intended to deceive another, in order to prevent her fraud on from taking part in a capture, is generally punished by admit- joint ting the claim of the latter to the benefit of joint captor. Thus capture in the case of the Herman Parlo,' the actual captor extinguished his lights in order to prevent other ships from seeing the chase or capture. In the case of the 'Eendraught,' the captor hoisted American colours, and offered to protect the prize against the other vessels who were chasing her; by this means, the actual capture was deferred till the other vessels were out of sight. In both these cases the claims to joint capture were admitted, although the claimants were not in sight when the capture took place. Moreover, in the latter case the claimants were awarded costs against the actual captor. Where two convoying ships were detached to reconnoitre two ships in sight, which turned out to be a British frigate and an enemy's vessel, the frigate signalled her number, but made no signal of an enemy's ship ahead, thereby causing the convoying ships to be recalled. She afterwards made the capture, and the convoying ships were admitted as joint captors, on account of her neglect to make the proper signal. So, 1 The 'Marianne,' 5 Rob., 13; the 'Sacra Familia,' 5 Rob., 362; the "San José,' 6 Rob., 244; 'L'Amitié,' 6 Rob., 268; the' Wanstead,' Edw. R., 268. The 'La Flore,' 5 Rob., 268, 271; the 'Amor Parentum,' 1 Rob., 303. 3 Roberts v. Hartley, 1 Dougl., 311. Distribution of prize to joint captors Of bounty or head money where a non-commissioned schooner which had had an engagement with an enemy's vessel, and though beaten off, was still hanging upon her, was induced to sheer off by the actual captor coming up and hoisting French colours, the claim of the Admiralty to joint capture for the schooner was sustained by the prize court.' § 25. The distribution of prize among joint captors is usually regulated by proclamation, but in cases where such does not exist resort is had to the general rule of prize law established by the courts, which is that joint captors share in proportion to their relative strength. And this relative strength is usually determined by the number of men on board the actual taker and the ships assisting in the capture. The same rule seems applicable to the case of a joint capture by a public and private ship, whether the latter be commissioned or not; as also where an ally co-operates in the capture.2 § 26. The foregoing remarks respecting joint capture refer to benefit in prize; but some States also allow a bounty, or head money, for the taking or destroying of vessels of the enemy. Such provision is made by s. 42 of the English Naval Prize Act, 1864, which provides for such of the officers and crews of any British ships of war 'as are actually present at the taking or destroying of any armed ship' of the enemy. As grants of this description are considered as made to reward immediate personal exertion, and, moreover, are public grants, the courts construe them with much more rigour than they do the conflicting claims of individuals for shares of prize money. In these, as in all other public grants, the presumption is in favour of the grantor, and against the grantee. Hence, all claims of constructive joint capture, as from sight, association in chase, &c., are rejected. Originally the reward was confined to actual combat only; but the result of cases decided in the early part of this century shows that where a capture can be considered as a continuation of a general action, the whole fleet is equally entitled to head money, notwithstanding the particular combat and formal taking or destroying by a single ship belonging to the 1 The 'Herman Parlo,' 3 Rob., 8; the 'Eendraught,' 3 Rob., appen., 35; the Spankler,' 1 Dod. R., 359; the 'Waaksamheid,' 3 Rob., 1; 'La Virginie,' 5 Rob., 124; the 'Robert,' 3 Rob., 194. 2 Roberts v. Hartley, Doug. R., 311; Duckworth v. Tucker, 2 Taunt. R., 7; the 'Despatch,' 2 Gallis. R., 1; the 'Twee Gesuster,' 2 Rob., 284, note; the 'Le Franc,' 2 Rob., 285, note. |