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master and

length of time that the captors may be fairly presumed to have lost or been deprived of such evidence as they might have adduced in exculpation, a

monition will not issue against them.' To send the When a maritime capture is complete, it is the prize into con venient port. duty of the captors to send the vessel into some

convenient port for adjudication. What is intended by convenient port has been heretofore

considered. With prize- To this end it is their duty to put on board the prize crew, captured ship a proper prize-master, and a sufficient ed crew con

prize crew to navigate the vessel into port, unless, sent to navi- indeed, the captured crew consent to perform the

service, which, however, they are not in general bound to do.

If they do consent, they thereby exonerate the captors from all liability for loss or damage resulting from improper or unskilful navigation. If any cruelty or unnecessary force, such as putting in irons or handcuffs, is used towards the crew of a neutral ship captured, a prize court will decree

damages to the injured parties. Captors pro- Under peculiar circumstances, and in cases of converting overruling necessity, captors may, without being breaking bulk, thereby deprived of the effects of a lawful posses

gate.

hibited from

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? The Fuldah, 3 Rob., 235; The Madonna del Burso, 4 Rob. 169; The St. Juan Baptista, 5 Rob., 33; The Wilhelmberg, 5 Rob., 143; The Elsebe, 5 Rob., 173; The Lively, 1 Gall., 315; The Washington, 6 Rob., 275; The Principe, Edwards, 70.

3 Wilcox vs. Union Ins. Co., 2 Binney, 574; The Resolution, 6 Rob., 13; The Pennsylvania, 1 Acton, 33; The Aleranda. i Gall., 532, and S. C., 8 Cranch, 169.

4 The St. Juan Baptista, 5 Rob., 33, The Die Frie Dames, 5 Rob., 357.

ruling necessity.

sion, land or even sell the prize goods. But in all cept from oversuch cases, the burden is upon them, to satisfy the court of their perfect good faith, and the circumstances giving rise to the necessity, otherwise any and every spoliation or damage to the captured ship, any breaking bulk, or conversion of the property, will deprive them of all benefit of capture, and subject them to a decree for damages, costs, and expenses.

some of the

captured ves

fects of its via

The master, and principal officers, and some of the Duty of capcrew of the captured vessel, should, in all instances, master and ofbe sent with the vessel into the port of adjudica

ficers, and tion. This is a settled rule of prize courts, and the crew of the importance of its invariable observance cannot be sei. overestimated

During the war of 1812, between the United Great importStates and Great Britain, this rule was enforced by rule

, and of the special instructions of the President, and the lation. violation of these instructions involved a loss of all benefit of capture. Captors should understand that by the established rules of prize courts, the examination of the master and officers, and if possible some of the crew, of the captured vessel, is the initiatory step in proceedings for condemnation, and without such examination (except by special permission in rare cases, showing physical impossibility), no proceedings can be taken?

The Concordia, 2 Rob., 102; L'Eole, 6 Rob., 220; The Washington, 6 Rob., 276; Clerk's Praxis, 163; Del Col. vs. Arnold, 3 Dall., 333; The Maria, 4 Rob., 348; The Rendsberg, 6 Rob., 142.

· Th Eliza and Katy, 6 Rob., 185; The Henrick and Maria, 4 Rob., 43, 57.

documents found on board.

On arrival at As soon as the vessel or property captured arport of adjudi. cation, first rives at the

rives at the port of adjudication, it is the duty of duty to notify the captors (therein represented by the prize-maste

if the prize is thus sent and not carried into port by the captors themselves), forthwith to give notice of the fact of arrival to the admiralty judge, or to the

prize commissioners of the port or district, and at To deliver up the same time to deliver into the hands of the judge all papers and

or his commissioners, all the papers and documents

found on board the captured vessel, accompanied With affidavit by an affidavit that the papers and documents thus in the precise

delivered up are in the same condition as when they were taken, without fraud, addition, subduction, or embezzlement. The prize property is thereafter in the custody of the court, and the duty of the captors is ended until action on their part becomes necessary to procure an adjudication."

The next step in the proceeding is taken by the commissioners of prize, which leads to a consideration of the powers and duties of the prize commissioners.

that they are

condition as found when taken.

Prize Commis. sioners.

Prize commissioners are officers of the court of Their appoint-'admiralty. They are appointed and commissioned ment, powers,

by the court, and hold their office during the pleasure of the court, or until the termination of the war which occasioned their appointment; and the court may appoint as many in number as the exigencies require. The purpose of their appointment is to relieve the court from the performance of many of the onerous duties to which the exercise of prize

and duties.

Ordonnance de la Marine, 1681, Tii. 9, Art. 21; Coll. War.,

kind are

jurisdiction of necessity gives rise. In the name of the court they receive possession of the prize property when brought within its jurisdiction, as well as the papers and documents found and taken with it; and it is their duty to enclose the papers and documents in a secure enclosure, and the same to seal with their proper seal, and then to lodge them in the registry of the court. So, too, with regard to the prize property, it is their duty to place their seal upon the hatches of the vessel, and upon whatever doors, coverings or enclosures of

any used to shelter and protect the cargo, so that the same cannot be tampered with without violation of their seal. It is their duty to appoint proper custodians to be left in the charge and safe-keeping of the prize property, so long as the same shall remain in court, or until the possession of the commissioners shall be superseded by that of the ordinary officer of the court, the marshal.

The papers, and documents, and prize property, To take the being thus secured, in the custody of the court as the master, cfthe guardian of the public interests, it is next the ficers, and duty of the commissioners to proceed without any

delay whatever, that is to say, as soon as possible after the arrival of the vessel, to take the examination of witnesses, who are to be none others than the master, officers and crew of the captured vessel, or persons actually on board at the time of the capture. The examination is always confined to such persons in the first instance, and is never extended save by special permission or upon an order for further proof. Inasmuch as the hearing before the court is Rules as to to be primarily, in all cases, upon the papers and of witnesses . documents, and the examination of the persons on

prize crew.

board brought in with the prize, and upon no other evidence whatever, the rules of the court require a strict adherence to all the prescribed formalities in the taking of this testimony. These rules are as follows:

First. The witnesses must be produced before the commissioners in succession, so that all may be examined, before the examination of any one is transmitted to and filed with the court. After such transmission no other witness can be examined without a special order of the court.

Second. The witnesses must be examined separately and apart from each other, and without the instruction or presence of counsel, or of any other person than the commissioners, their clerk, secretary or actuary, and agents of the parties, other than professional; and during the examination the witnesses are not allowed to communicate with or be instructed by counsel. If professional counsel were allowed to be present at the examination, and especially if they were allowed to take notes of the testimony, the purpose of the rule, which rigidly requires the witnesses to be examined apart from each other, might be entirely defeated.

Third. The examination of the witnesses is, in all cases, to be on the standing interrogatories in preparatorio, as they are denominated. The standing interrogatories used in the English courts of admiralty, have been drawn with great care and precision, and contain sifting inquiries upon every point which may possibly affect the question of prize. These interrogatories, which may be found in 1 Robinson's Reports, 381, have served as a

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