When

captors

§ 30. Questions with respect to the liability of admirals of are liable fleets, and commanders of squadrons, for captures made by vessels and officers under their commands, and of owners of privateers for the acts of their captains, have often been adjudicated upon by the courts. The commander of a squadron,

for costs and da

mages

answerable for the capture, not for the search. ('La Jeune Eugénie,' 2 Mason, 439.)

During the Crimean war of 1854, the 'Ostee,' sailing under the Mecklenburg flag from Cronstadt to Elsinore, was seized by a British ship of war and sent to London for adjudication as prize. Upon the ship's papers and the examination of the crew on the usual interrogatories, there appeared to be no ground for condemnation. The ship and cargo were restored to the claimants, but without costs or damages. On appeal to the Privy Council, their lordships observed in the judgment, that the restitution of a ship and cargo may be attended, according to the circumstances of the case, with any one of the following consequences:-1st, the claimants may be ordered to pay to the captors their costs and expenses; or, 2nd, the restitution may be simple restitution, without costs or expenses or damages to either party; or, 3rd, the captors may be ordered to pay costs and damages to the claimants. These provisions meet the various circumstances, not ultimately affording ground for condemnation, under which captures may take place. A ship may by her own misconduct have occasioned her capture, and in such a case it is very reasonable that she should indemnify the captors against the expenses which her misconduct has occasioned; or she may be involved, with little or no fault on her part, in such suspicion, as to make it the right or even the duty of a belligerent to seize her. There may be no fault either in the captor or the captured, or both may be in fault; and in such cases there may be damnum absque injuriâ, and no ground for anything but simple restitution. Or there may be a third case, where not only the ship is in no fault, but she is not by any act of her own, voluntary or involuntary, open to any fair ground of suspicion In such a case a belligerent may seize at his peril and take the chance of something appearing on investigation to justify the capture; but if he fails in such a case it seems very fit that he should pay the costs and damages which he has occasioned. Their lordships considered that the case before them was brought within the last of these rules, and gave the claimants their costs in the court below, but no costs in the Appeal. They also gave them damages, the amount to be referred to the Registrar and merchants. The amount was subsequently paid by the British Government. Costs and damages, when decreed against the captors, are not inflicted as a punishment on the captors, but as affording compensation to the injured party. In order to exempt captors from costs and damages, in case of restitution, there must be some circumstances connected with the ship or cargo, affording reasonable ground for belief that the ship or cargo might prove a lawful prize. What amounts to such a probable cause, as to justify a capture, is incapable of definition and is to be regulated by the peculiar circumstances in each case. It is not necessary to prove vexatious conduct on the part of the captors, to subject them to condemnation in costs and damages. Neither will honest mistake, though occasioned by an act of government, relieve the captors from liability to compensate a neutral for damages, which the captors by their conduct have caused the neutral to sustain. In the course of the judgment, their lordships further observed : — The law which we are to lay down, cannot be confined to the British Navy: the rule must be applied to captors of all

or the admiral of a fleet, is liable to individuals for the trespasses of those under his command, in case of actual presence and co-operation, or of positive orders. Where, in such cases, the capture has actually taken place, the prize master is considered as a bailee to the use of the whole fleet or squadron, who are to share in the prize money, and thus the commander may be made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the fleet or squadron. With respect to costs and damages, it is a general rule in relation to public ships, that the actual wrongdoer, and he alone, is responsible. It is not meant by this that the crew of the capturing ship are responsible for a seizure made in obedience to the commands of their superior; but that the person actually ordering the seizure is the one to be held liable for costs and damages. Thus, the commander of a single vessel is liable for the acts of all under his command, and the commander of a fleet or squadron, in case of actual presence and co-operation, or of positive orders. In the United States he is also held responsible for acts done under his permissive orders;

nations. No country can be permitted to establish an exceptional rule in its own favour, or in favour of particular classes of its own subjects. On the Law of Nations, foreign decisions are entitled to the same weight as those of the country in which the tribunal sits. America has adopted almost all her principles of prize law from the decisions of English courts, and whatever may have been the case in former tines, no authorities are now cited in English courts, in cases to which they are applicable, with greater respect than those of the distinguished jurists of France and America. Whatever is held in England to justify or excuse an officer of the British Navy, will be held by the tribunals of every country, both on this and the other side of the Atlantic, to justify or excuse the captors of their own nations.' (Schacht v. Otter, 9 Moore, Privy Council Cas., 150.)

Prize courts deny damages, or costs, in cases of seizure made upon 'probable cause,' that is to say, where there were circumstances sufficient to warrant suspicion, though not to warrant condemnation. (The 'Thompson, 3 Wall., 155; affirming S. C., Blatchf. Pr. Cas., 377.)

Where a ship is bonâ fide seized as a prize, and afterwards released without any suit being instituted against her, the owner cannot sustain an action at common law for the seizure. His remedy, if any, is in the Court of Admiralty. (Faith v. Pearson, 6 Taunt., 439.)

No action lies at common law for false imprisonment, where the imprisonment was merely in consequence of taking a ship as prize, although the ship has been acquitted. (Le Caux v. Eden, 2 Dougl., 594.)

It was held a good defence, in an action for taking a steam vessel, that the defendant was an admiral in the Portuguese navy, and that he took the vessel as a prize, and that it became forfeited to the Queen of Portugal, although he was a natural-born subject of Great Britain and had accepted his commission without license of the King of England. (Dobree 7. Napier, 3 Scott, 201.)

Of owners of priva

teers

but not so in England. The captain, there, must be looked to as the actual wrongdoer, and the admiral is responsible to him if he has given express orders for the particular seizure.'

§ 31. In the case of privateers, the owners, as well as the masters, are responsible for the damages and costs occasioned by illegal captures, and this to the extent of the actual loss and injury, even if it exceed the amount of the bond usually given upon the taking out of the commission. But such owners who are only constructively liable are not bound to the extent of vindictive damages, although the original wrongdoers, in case of gross and wanton outrage in an illegal seizure, may be made responsible beyond the loss actually sustained. The sureties to the bond are responsible only to the extent of the sum in which they are bound. But, if a person appear on

1 Kent, Com. on Am. Law, vol. i. p. 100; Phillimore, On Int. Law, vol. iii. § 457; the Mentor,' 1 Rob., 177; the 'Diligentia,' 1 Dod. R., 404; the 'Eleanor,' 2 Wheat. R., 346.

An action between the single ships of two nations at peace is rare. Still more rare is an action, under similar circumstances, between two squadrons. Unfortunately an action was fought in 1804 between an English and Spanish squadron in open day; not through any accident, but under express orders from the government of one of the combatants ; and, so far from the matter being afterwards made up, it led to an almost immediate declaration of war by the party who had to complain of the aggression. Towards the end of the summer of 1804 the British Government received intelligence (which, however, was afterwards disproved by the Spanish Government) that an armament was fitting out in Ferrol, that a considerable force was already collected there, and that the French troops were near at hand. Immediately on this information the British Admiralty despatched a squadron off Cadiz to intercept and detain, by force or otherwise, the four Spanish frigates known to be bound to that port with an immense quantity of specie, which they were bringing from Monte Video. On Oct. 5 the four British frigates sighted the Spanish frigates and immediately made sail in chase, and upon the refusal of the Spanish commanding officer to allow the squadron to be detained, an action was commenced, during which one of the Spanish ships blew up and the other three were taken by the British ships. Their cargoes netted very little short of a million sterling. Many persons, who concurred in the expediency, doubted the right of detaining these ships; and many again, to whom the legality of the act appeared clear, were of opinion that a more formidable force should have been sent to execute the service, in order to have justified the Spanish admiral in surrendering without an appeal to arms. On Nov. 27 an order was made to make reprisals on English property, and on Dec. 12 war was declared against England by Spain. (Jas. Nav. Hist., vol. iii. 280.)

Where two vessels engaged in combat under a mutual mistake in regard to each other's character, and the vessel attacked captured the other, it was held in the United States that the capture was not unlawful, being apparently required in self-defence; and that the subsequent bringing in of the vessel for adjudication was not a cause for giving damages. (The Marianna Flora,' 11 Wheat., 1.)

behalf of the captain of a privateer, and give security in his own name as principal in the stipulation, with other sureties, he is liable, in the same manner as the captain, as principal. A part owner of a privateer is not exempted from being a party to the suit, in consequence of having made compensation for his share to the claimant and received a release from him. A person may be holden a part owner of a privateer, although his name has never been inserted in the bill of sale or in the ship's register.1

master

§ 32. It is the duty of the prize master, immediately on his Duties of prize arrival in port, to institute proceedings in the proper court for the adjudication of his prize. He should also deliver over to the commissioner, or proper officer of the court, all the papers and documents found on board, and, at the same time, make affidavit that they are delivered up as taken, without fraud, addition, subdivision, or embezzlement. He should also have

the master and principal officers, and some of the crew, of the captured vessel, brought in for examination. This examination should take place as soon as possible after the arrival of the vessel. Prize masters are considered as bailees to the use of the captors, who are to share in prize money. If the prize be lost by the misconduct of the prize master, or for neglecting to take a pilot, or to put on board a proper prize crew, the captors are held responsible. So, also, in claims for demurrage in not bringing in the prize in due time, or neglecting to have the case adjudicated before a competent court. Courts of prize have jurisdiction of all prize agents, and determine upon the legality of their appointment, and the disposition which they may make of the proceeds of sales of prizes, &c. If they pay such proceeds over to the captors without an order of the court, they are responsible to the owners of the cap

See also ch. xxii. § 25; Riquelme, Derecho Púb. Int., lib. i. tit. ii. c. 13; Brown, Civil and Adm. Law, vol. ii. p. 140; Pothier, De la Propriété, No. 92; Valin, Sur l'Ordonnance, liv. iii. tit. ix.; Talbot v. Three Brigs, 1 Dal. R., 95; the 'Die Fire Damer,' 5 Rob., 318; the 'Der Mohr,' 3 Rob., 129; the 'Gerolama,' 3 Hagg. R., 187; Del. Col. v. Arnold, 3 Dall. R., 333; the 'Anna Maria,' 2 Wheat. R., 327; King v. Ferguson, Edw. R., 84; the Karasan,' 5 Rob., 260; the William,' 4 Rob., 214; Bello, Derecho Internacional, pt. ii. c. v. § 5; Code de Commerce, liv. ii. tit. iii. art. 217; Bedarride, Droit Com., §§ 300 et seq. The distribution of the prize proceeds is generally directed by the agreement between the owners, officers, and crew; but if no agreement is executed, the Admiralty court will make distribution in proportion to the number, interest, and merits of the captors. (Keane v. the Gloucester,' 2 Dall., 36.)

tured property for the net amounts so received by them, in case restitution is received. The duties and responsibilities of prize agents, where not regulated by statutes, are usually determined by the rules and orders of the courts.'

The Speculation,' 2 Rob., 293; Del. Col. v. Arnold, 3 Dall. R., 333 ; Wilcox v. U. Ins. Co., 2 Binn. R., 574; Willis v. Commissioners, 5 East. R., 22; the Noysomhed,' 7 Ves. R., 593; Smart v. Wolff, 3 Durn. and East., 323; the Pomona,' 1 Dod. R., 25; the Herkimer,' Stew. R., 328; the Louis,' 5 Rob., 146; the 'Polly,' 5 Rob., 147, note; the Printz Henrick,' 6 Rob., 95; the Exeter,' I Rob., 173; the Princesa,' 2 Rob., 31; the 'St. Lawrence,' 2 Gallis. R., 19; the 'Brutus,' 2 Gallis. R., 526; Bingham v. Cabot, 3 Dallas R., 19; Kean v. Brig Gloucester,' 2 Dall. R., 36; Hill v. Ross, 3 Dall. R., 331; Penhallow v. Doane, 3 Dall. R., 54. A sale of captured property, by authority of the captors, before sentence of condemnation, if the property be afterwards condemned, is valid. (Williams v. Armroyd, 7 Cranch., 423.)

The captor has no such interest in the vessel, which is re-captured before condemnation, as entitles him to require the government to press a claim for damages against the neutral government, in one of whose courts the prize was illegally re-captured. (Stewart v. U. S., 1 Ct. of Cl. R., Nott, 2 H., 113.)

The title of the absolute owner prevails in a prize court over the interests of a lien holder, whatever the equities between those parties may be. (The 'Winifred,' Blatchf. Pr. Cas., 2.)

Where a merchant purchased a cargo of coffee for enemy correspondents, partly with their funds and partly with his own, and shipped it under a bill of lading by which it was to be delivered to his order, and with a statement thereon that part of the coffee was the property of neutrals,-Held, that as he had the legal title and possession, he was not to be deemed a lien holder, but rather a trustee with the right of retention until his advance should be repaid. In such cases, a prize court will look beyond the legal title, dealing with the beneficiary interest. (The 'Amy Warwick,' 2 Sprague, 150.)

Cotton belonging to the Confederate Government was sold by a person who came through the rebel lines for that purpose to A. A., procuring the assistance of United States troops, proceeded to where the cotton was stored in charge of an officer of the Confederate Government, secured it, and forwarded it to a military post of the United States. The officer in command at this post seized the cotton and turned it over to the quartermaster. Subsequently the quartermaster delivered the cotton to A., who shipped it North. Before it reached its destination it was again seized by military authority. After the release of the cotton by the quartermaster, and prior to the last seizure, A. sold it to third parties, who were informed of the facts. It was held, that the title of the United States related back to the time of original capture; that if the surrender of the cotton to A. was through a fraudulent connivance between him and the quartermaster, such surrender was not voluntary, within the legal meaning of the term; that the third parties (the claimants) having knowledge of the facts, were not protected, and that the cotton must be condemned. (United States v. Two hundred and sixty-nine and a half Bales of Cotton, Rev. Cas., 2, 64.)