seizure is effected. Suppose the vessel is in dock and undergoing repairs, the circumstance would not suspend the right of the officer in command of her, to act by himself and men, in boats. The seizure may be legally effected by means of boats, or indeed, without them, by a mere summons to the parties."

Lawful cap

A lawful capture may be made by a ship em- ture may be ployed in the convoy of merchantmen, provided it made by ship is done without a desertion of the convoying duty. convoy.

Upon this question, the rule is thus stated by Lord Stowell; "The first and great object of the attention of an officer appointed to a service of this kind, is the care of his convoy. He is not at liberty to desert it for the purpose of acquiring any advantage to himself, nor is he to volunteer any attack upon the enemy, if it takes him away from his first great duty. But, as far as it is consistent with that duty, he may pursue his own interest, and may attack and annoy the enemy, in any way that may appear to him advantageous. He may capture the ships and goods of the enemy, provided he does not withdraw himself from the duty of protecting the vessels under his care, and may take the benefit of prizes which he has the good fortune to make.

There is no pretence for saying, that a convoying ship may not legally and effectually make a prize as well as any other of his majesty's ships-nor is there more objection in the case of a convoying ship to constructive than to actual capture. A convoy. ing ship is no more disabled from rendering assist

1 The Charlotte, 1 Dodson, 220.

employed in

Wrong-doer only liable for

ance to others, than from making an actual capture herself. The service on which she is employed makes no disqualification in either case, supposing only that the capture can be effected without any breach of the principal duty, the care of the convoy."

Where a wrong is committed in a capture, the injury result- wrong-doer is the only person who is responsible for the injuries resulting therefrom.

ing from a cap

ture.

After the cessation of hostilities between the United States and Great Britain, in 1783, but before the fact of such cessation had come to the knowl edge of parties in the United States, The Mentor, an American ship, was destroyed, while off the Delaware, by The Centurion and Vulture, two British ships-of-war, part of the squadron of Admiral Digby. In 1799, this was made the subject of a suit against Admiral Digby, in the admiralty court in England.

In rendering judgment in this case, Lord Stowell says: "It is an entire novelty in a prize cause, to call to adjudication, not the immediate alleged wrong-doer, but a person who was neither present at, nor cognizant of the transaction, and who is to be affected in responsibility merely on this groundthat the person alleged to have done the injury was acting under his general authority; for, as to particular orders applied to this transaction, it is not pretended that any were given, or could be given. He was only the admiral on the station, and the ships which committed the alleged outrage, were

1 The Galen, Dodson, 429-440.

under his general command, but at a great distance from him.

"This is the first time that an attempt has been made in a prize cause, to pass over the person from whom the alleged injury has been received, and to fix it on another person, on the ground of a remote and consequential responsibility. The actual wrong-doer is the man to answer in judgment. To him responsibility is attached in this court. He may have other persons responsible over to him, and that responsibility may be enforced. As, for instance, if a captain made a wrong seizure, under the express orders of the admiral, that admiral may be made responsible in the damages occasioned to the captain by that improper act; but it is the constant practice of this court to have the actual wrong-doer the party before the court; and every man must see the propriety of that practice, because, if the court was once to open the door to complaints founded on a remote and consequential responsibility, where is it to stop? If a monition is to go against the admiral for not issuing his revocatory orders, a monition might, in like manner, go against the lords of the admiralty for a similar neglect, or against the secretary for not issuing a similar direction to the lords of the admiralty; and these persons might be made parties in a prize cause, and called upon to proceed to adjudication.

"If the legal responsibility is to be shifted from the actual captor, to whom is the claimant to look? Where is he to find the responsibility in the chain of persons who may be, somehow or other, involved in the different stages of the transaction? Where is he to find the wrong-doer, if you once take off

Vindictive damages given only in ex. traordinary

cases.

you

that character from the person who immediately commits the injury? Where is he to resort, if take from him that easy and direct resort, wit. which, in the present understanding of the law, he is provided? I am most clearly, on this ground, of opinion, that Admiral Digby alone cannot be compelled to proceed to adjudication under this monition. The loss which the claimant has sustained is extremely to be lamented; but I cannot give relief on mere grounds of humanity.

"Humanity is only the second virtue of courts Justice is unquestionably the first; and justice would be grossly violated by providing relief for one innocent man at the expense of another, who is not legally subject thereto."

Vindictive damages are never given in cases of illegal capture, unless the misconduct has been gross, and wholly without excuse or palliation. Much indulgence is extended to errors, and even to improprieties of captors, where no malignity or cruelty is justly chargeable."

If a captor destroy a ship which is protected by the license of his government, he or his government is responsible for the loss occasioned by such destruction.3

But a captor is protected by the court, who acts in good faith in pursuance of his rights, in an ig norance, honest and invincible on his part, of a for

123.

The Mentor, 1 Rob., 180; vide also The Faderlandt, 5 Rob.,

The Lively and cargo, 1 Gall., 29; The Anne, 3 Wheat., 435; The George, 1 Mason, 24.

The Felicity, 2 Dod., 381; The Acteon, ib., 52.

eign fact, not governed by his own domestic law, with which he is unavoidably unacquainted till it is actually communicated to him.1

to visible and

It is a general rule that the captor takes his Prize subject prize cum onere, but the onus must be one which is immediate inimmediately and visibly incumbent.

Thus, if a captor take the cargo of an enemy on board the ship of a friend, he takes it subject to the liability for freight due to the owner of the ship, because by the general law of merchants, the cargo in the possession of the owner is subject to that liability, independent of contract. But to claims which rest in action merely, such as bottomry bonds, liens by contract, etc., the rule has no application-for these are claims which no admiralty court can examine with effect. The captor has no access to the original private understandings of the parties by whom such contracts are made, and it is therefore held that he should not be affected by them. Several cases have been decided, involv ing this principle, relating to freight, liens, etc., both in England and the United States."

cumbrances only.

sent to con

The captor must send his prize to some conveni- Prize must be ent port for adjudication. Although some latitude venient port. is necessarily allowed in the selection of the port, the captor cannot exercise an arbitrary discretion;

it must be a convenient port, and it is the duty of Rule as to this.

'The John, 2 Dodson, 339.

The Tobago, 5 Rob., 218; The Diana, ib., 67; The Twilhieg Rigct, 5 Rob., 82; The Marianna, 6 Rob., 24; The Constancia Harlasten, 1 Edw., 252; The Ann Green, 1 Gall., 293; The Francis, 8 Cranch, 418.