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the Culloden and Northumberland are entitled to share, and that the same right will extend to the other ships which remained off Valetta, although they have not made themselves parties to this suit. But the national ship Leda was sent forward to the coast of South America to obtain information there for the guidance of the expedition against Buenos Ayres. She left the station before the armament arrived, and again returned a few days after the capture of the settlement made by the fleet. She was held not to be entitled to share as joint-captor, either by virtue of antecedent or of subsequent service in the enterprise."
ture when in
from the mast
The ship of war Defence was in sight from the masthead on the occasion of a capture being made by another vessel, and on that ground claimed the privilege of joint-captor. Lord Stowell said: "I No joint-capam not aware of any one instance in which the sight only court has pronounced for a joint-capture on being head. in sight only from the masthead. I do not say that such a case would be entirely and absolutely out of the reach of the principle on which the being in sight is admitted to constitute an interest of jointcapture; but this may be safely affirmed that if the court was to pronounce for such a claim, upon such evidence, it would be, in all respects, a very extreme case indeed."
The ships Alfred, Dictator, Bittern, Zephyr and Pelican claimed to share in the property taken on land, and in the capture of one vessel, and in the
1 Buenos Ayres, 1 Dod., 28.
2 The Robert, 3 Rob., 194.
The being in sight to be affirmatively proved.
distribution of bounty for the destruction of others, upon the capture of the island of Trinidad by the British. The claim was based on the averment that these vessels were in sight, and the admiral (Harvey) in command of the fleet, expressed an opinion that these vessels must have been in sight the evening before the enemy's ships were sot on fire and the capture made.
Lord Stowell said: "The grounds of this opinion seem to be very rational and just, and if supported on the part of the vessels themselves, they might have been very material. But the court is bound to expect that the being in sight should be proved by some direct evidence applied to the fact, and not merely by opinion, formed upon the conjectures of any persons, however respectable they may be.
"It is said that they heard the explosion. But it is a common phrase, not more contemptible for being common, that hearing is not seeing.
"The explosion of such a body as a ship of war would be heard at a stupendous distance.
"It is a well-known fact that, in the famous battle in the Downs, the explosion was heard in St. James's Park, and was made the foundation of a mathematical calculation by Sir William Petty, with respect to the velocity of the progress of sound. So, with regard to the conflagration, the atmosphere would be illuminated to a prodigious distance; but it would be ludicrous to say that all who were within the reach of these appearances, produced by the fire, are to be taken in law as present at the occurrence itself."
The San Damaso, 3 Rob., 234.
Three days after the battle of Trafalgar, a Spanish man-of-war was taken by the British ship The Dongul, and The Leviathan, though in sight at the time, was not admitted as joint-captor, because she was actually employed in taking care of other ships and prizes captured in the battle, and in watching the movements of The Monarch, another Spanish ship.1
Mere intimidation without co-operation or active Mere intimidaassistance is not sufficient basis for a claim of joint- cooperation incapture.
sufficient to entitle to the
Certain East India ships were employed to trans- rights of joint port a number of troops to the Cape of Good Hope, and claimed to share in the capture of that possession made in 1795.
Lord Stowell said: "If they had been associated to act in conjunction with the fleet, and did so act, they might acquire an interest which, on proper application, would be sure to meet with due attention. The question for me to consider, then, will be, whether they have acquired that military character or not?
"Their pretensions have been put forward on several grounds.
"It is first said that they were associated with the Nor mere asfleet. Mere association will not do-the plea must go further, and show in what capacity they were associated, and that capacity must be directly military. Unless in a Transports are associated with fleets and armies for capacity. various purposes connected with, or subservient to, the military uses of those fleets and armies. But if they are transports merely, and as such are employed simply in the transportation of men or stores they
1 The El Rayo, 1 Dod., 42.
do not rise above their proper mercantile character, in consequence of such employment. The employ ment must be that of an immediate application to the purposes of direct military operations, in which they are to take a part.
"It is next placed on the ground of intimidation, and, it is said, that when the enemy is proved to have been intimidated, where it is not matter of inference, but of actual proof, the assistance arising from intimidation is not to be considered constructive merely, but an actual and effective co-operation.
“But I take that to be not quite correct, for a hundred instances might be mentioned, in which actual intimidation might be produced, without any co-operation having been given. Suppose the case of a small frigate going to attack an enemy's vessel, and four or five large merchant ships, un conscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that such a terror would entitle them to share: though the fact of terror was ever so strongly proved, there would not be that cooperation and active assistance, which the law requires to entitle non-commissioned vessels to be considered as joint-captors. What is the intimidation alleged? That the Dutch forces were about to make an attack on the British army, but, on the appearance of these fourteen ships, desisted. This was an intimidation of which the ships were totally unconscious, and which would have been just as effectually produced by a fleet of mere transports: and I see no principle on which I could pronounce these ships entitled, on which I should not also be
obliged to pronounce any fleet of merchantmen entitled, in a similar situation; for any number of large ships, known to be British, and not known to be merchantmen, would have produced the same effect. The intimidation was entirely passive, there was no animus nor design on their part, nor even knowledge of the fact; for it was not till the next day, when their commodore returned from Lord Keith, that they knew any thing of the matter, or even thought of the terror that they had assisted in exciting. I take it to be incontrovertibly true, that no case can be alleged, in which a terror so excited has been held to enure to the benefit of a non-commissioned vessel. Another ground on which it is put, and which it may be proper for me to advert to, is the ground of analogy. That it is a case of assistance, analogous to that of joint-chasing, on which it is said to be sufficient, if the noncommissioned ship puts itself in motion, and the cases of the Twee Gesuster, in the last war, and the La France have been relied upon. I see no ground on which the analogy can be supported. The cases cited were of a very different nature. In both of them, the non-commissioned ships chased, animo capiendi, and contributed materially, directly and immediately in the capture. In the present case, these ships approached, it is true, the Cape of Good Hope, but with no animus capi endi, with no hostile purpose entertained by themselves, for they were totally ignorant of the objects of the expedition. It is moreover, obvious to remark, that all cases of joint-chasing at sea, differ so materially from all cases of conjunct operations upon land, that they are with great danger of in