[*561]

*CCCCXLII. (I.) Custody of the Property captured.

The captor's title to his Prize depends upon his obtaining a sentence in his favour from the proper tribunal. It is, therefore, his interest, as well as his duty, to bring in his Prize as speedily as possible for adjudication. But if he neglect to do so, the claimant may himself apply to the Court for restitution.

In either case the property is immediately taken into the custody of the Court; for in all proceedings in rem the Court has a right to the custody of the thing in controversy; and as soon as proceeded against, it is always deemed in the custody of the law. (a) In the United States, a warrant immediately goes to the Marshal, to take possession of the property; and he is bound to keep it in salvâ et arctâ custodiâ; and if any loss happen by his negligence, he is responsible for it to the Court. In England, although the property is now usually put into the hands of the captors, yet it still remains, in contemplation of law, in the custody of the public. Formerly, it actually did remain in its custody, as is still the case in other foreign countries. It is merely for the convenience of the captors, that the English Admiralty permits them to take possession of the property. But it must be remembered, that it is so held by them as agents of the Court, and not in the right of property; and therefore, their possession may be divested by the act of the Court, either ex officio, or on the application of the parties interested, showing good cause for taking it out of their hands. (b) And the property still remains in the custody of the Court, notwithstanding an unlivery and deposit in public warehouses.(c)

*CCCCXLIII. In fact, in England, where the property is so [*562] unlivered, if it has been captured by a public or private commissioned vessel, it is de facto under the joint locks of the Government and the captors, although in the legal possession of the Marshal under the tenor of his writ for unlivery; and if captured by a non-commissioned vessel, it is a droit, where the king, in his office of Admiralty, being the captor, it is under his locks alone. (d) In the United States alone.(d) of North America, the Marshal holds the custody at all times for the Court; and the latter is the guardian of the public rights and revenue, as well as of the rights of the captors and claimants in all cases of Prize. It is, indeed, usual and proper for the collector of the customs to keep an officer on board, for the protection of the revenue, until the duties are duly secured, which the captors may secure if they please; but since it cannot be ascertained until a decree of condemnation, whether the property be good Prize or not, many cases may occur in which it would be highly inconvenient for them to adopt this course. If the property be restored specifically and exported from the country by the claimants, it is held not liable to duties; and if sold under an interlocutory order of

(a) Jennings v. Carson, 4 Cranch's (Amer.) Rep., p. 2. Home v. Camden, 2 H. Blackstone's Rep., p. 533.

(b) Per Sir W. Scott, arguendo in Smart v. Wolff, 3 Durnford & East's Rep., pp. 323, 329. The Herkimer, Stewart, p. 128. S. C., 2 Hall's (Amer.) Law Journal, p. 133. (c) The Maria, 4 Rob., p. 348.

(d) The Rendsberg, 6 Rob., pp. 142, 174.

sale, it is the duty of the Court to reserve, out of the proceeds, the amount of duties which then attach upon it, and direct them to be paid over to the collector. (e) It is true that the American Prize Act of last war,(ƒ) seems to contemplate that the duties may be paid or secured in Prize Cases, in the same manner as goods ordinarily imported. But this clause is in terms applied only to goods of British growth, produce, or manufacture, or imported from British ports; and is, at all events, inapplicable to cases where it cannot be ascertained whether the goods are imported or not, until after a judicial decision. And the subsequent act of the 27th January, 1813, ch. 155, manifestly contem[*563] plates, that the payment of the duties is, in cases of condemnation, to be made by the Marshal, out of the proceeds of Prize Sales. And it has been repeatedly held, in the Circuit Court for the First Circuit, that no forfeiture accrued for not securing the duties upon Prize goods before condemnation; and that the Court might, at any time, direct an unlivery and sale; and upon such sale would deduct the amount of duties, and direct them to be paid to the collector.

CCCCXLIV. It has already been stated, that when the Marshal has possession of the property he is bound for safe and fair custody; and if any loss be sustained, it is at least his duty to be prepared to show that it was not lost by any default of his.(g) If, therefore, property be pillaged while under his care, the Court will hold him responsible for its value, if it arose from his negligence. If, indeed, upon an application to enforce his responsibility, he by his answer deny any negligence and loose custody, the Court may, perhaps, think it no more than a legal and proper confidence in its own officer, to throw the burden of proof of culpable negligence or fraud on the other party; (h) and where the property is lost while actually under the locks of the Government, the Marshal will not be liable, although he may still be considered as constructively having the legal property.(¿)

CCCCXLV. (II.) The Process and the Practice of the Court.

A. The Rights and Duties of Captors with reference to the Conduct of the Suit.(k)

(e) The Concord, 9 Cranch's (Amer.) Rep., p. 387. The Nereide, 1 Wheaton's (Amer.) Rep., p. 171.

p. 101.

(g) The Hoop, 4 Rob., p. 145. (i) Ibid.

(ƒ) Act of the 26th June, 1812, ch. 107, s. 14. (h) The Rendsberg, 6 Ib., pp. 142, 157. (k) 2 Brown's Civ. and Adm. Law, p. 524. Casaregis Disc., p. 24, No. 24. 2 Wooddeson's Lect., p. 432. Consolato del Mare, ch. cclxxxvii. cclxxxviii. 3 Bulstrode's Rep., p. 27. 4 Inst., (Cooke,) pp. 152, 154. Zouch, Adm. Jurisd., ch. iv. Com. Dig. Adm., c. iii. E. p. 3. The Georgianne, 1 Dodson's (Adm.) Rep., p. 397. The Diligentia, Ib., p. 404. The Emulous, 8 Cranch's (Amer.) Rep., p. 131. The Nereide, 9 Cranch's (Amer.) Rep., p. 389. The Dos Hermanos, Wheaton's (Amer.) Rep., p. 76. "Aucun ne pourra armer un vaisseau en guerre, sans commission de l'admiral."-Ordonnance de 1681, 1. iii. tit. ix., Des Prises, art. i.

“Il est tellement vrai qu'il n'y a que ceux qui ont commission de l'admiral, qui sont en droit de faire à leur profit des prises sur l'ennemi que si le capitaine d'un vaisseaux marchand a été attaque en mer par un vaisseaux ennemi dont il s'est rendu maître dans le combat, la prise qu'il a faite du vaisseaux ennemi ne lui appartient pas, mais appartient à l'admiral, qui est à cet égard aux droits du roi, l'admiral a coutume d'en gratifier pour le tout ou pour partie celui qui a fait la prise,

*To enable a vessel to make captures which shall insure benefit

[*564] to the captors, it is necessary that she should have a Commission

of Prize. But non-commissioned vessels of a belligerent nation may, not only make captures in their own defence, but may, at all times, capture hostile ships and cargoes, without being deemed by the Law of Nations to be pirates, though they can have no interest in Prizes so captured. But every capture, whether made by commissioned or noncommissioned ships, is at the peril of the captors. If they capture property without a reasonable or justifiable cause, they are liable to a suit for restitution, and may also be mulcted in costs and damages. (7) If the vessel and cargo, or any part thereof, be good *Prize [*565] they are completely justified. And although the whole property may, upon a hearing, be restored; yet, if there was probable cause of capture, they are not responsible in damages. (m) But, on the other hand, they may, under circumstances according to the degree of doubt or suspicion thrown upon the case, either from defects of papers, the nature of the voyage, or the conduct of the captured crew, be entitled to receive their costs and expenses in bringing in the property for adjudication. The circumstances are of course very various, which may constitute a probable cause of capture. They were much discussed in the case of the Ostsee decided by the Judicial Committee of the Privy Council in 1855; but it was not the intention of that tribunal to alter the previous practice on this subject. (n)

CCCCXLVI. Both in considering what reasons may be sufficient to justify a captor in bringing a vessel into the Prize Court for adjudication, and also in applying the principles to be collected from decided cases upon this subject, it is very necessary to bear in mind the distinction between two cases, viz.:—

1. The case of a vessel seized in the port or harbour of the Bellige

rent.

2. The case of a vessel seized upon the high seas.

In the (1.) former case the seizor has opportunity and means of obtaining proper legal advice as to the course which he shall pursue. And though even in this case much evidence must, until the examination of witnesses,—that is, of a portion of the crew on board the captured vessel,—remain uncertain, and much allowance must be made for the necessary ignorance of the captor with respect to the possibility of expla

sans tirer à consequence."-Pothier de propriété, No. 93. Valin sur l'Ordonnance ubi suprà.

(7) "Lesdits preneurs empeschans aucuns marchands, navire ou marchandise sans cause raisonable, ou qu'ils ne soyent nos adversaires, nostre dit admiral sera deuement restituer le dommage, et ne permettra plus l'usage qu'ont à ce contre raison tenué, iceus preneurs, en quoy ils ont fait et donne de grands dommages à aucuns de nos alliez par feinte, ou fausse couleur qu'ils mettoyent de non cognoistre s'ils estoyent nos adversaires, ou non, qui est chose bien damnable, contre raison et justice, que homme soubs telle couleur deust, porter dommage ou destourbier."— Ordonnance de 1400, art. viii. See the opinion of M. Portalis in the case of the Pigou, 2 Cranch's (Amer.) Rep.. p. 98, note (a).

(m) Opinion of M. Portalis, in the case of the Statira, 2 Cranch's (Amer.) Rep., p. 102, note (a), and Traité des Prises Maritimes, ii. p. 121, à De Pist. et Duverd. (n) See Aline and Fanny, July, 1856.

nation being produced by the claimant to do away with the effect of circumstances, primâ facie, *fraught with suspicion; still the

reason of the thing requires that a rule, in some degree less [*566]

favourable to the captor, and more favourable to the claimant, should be applied to cases of this description than to cases falling under the latter category, viz. (2.) of captures made upon the high seas.

The captor in the latter case is, for obvious and various reasons, inops consilii; he must act instantly, and without opportunity of prosecuting a minute or careful investigation into all the circumstances of the case.

The reason of the thing therefore prescribes that, in this case, if the captor has acted honestly, a less amount of probable cause—to use a phrase now stereotyped in the Prize Court-of suspicion shall avail not only to protect him from the payment of damage to the vessel seized, but to insure to him the payment of costs from her.

During the present war (1856) it will be seen that in the English Prize Courts these principles have certainly not been strained in favour of the captor. It may, perhaps, be questioned whether the decisions have not tended towards a contrary extreme.

But in England, the right to vessels seized in ports or harbours belongs to the Lord High Admiral, or to the Commissioners-usually called Lords of the Admiralty-who execute his office under the authority of the Crown. The Lord High Admiral is furnished with legal advice(o) separate and distinct from that which is possessed by the Crown. This is, perhaps, among the reasons why the seizor in ports or harbours of England is obliged to show a greater amount of probable cause than the captor on the high seas.

But in general it may be observed, that if the ship pretend to be neutral, and has not the usual documents of *such a ship on board ;(p) if the cargo be without any clearance ;(9) if the desti[*567] nation be untruly stated; if the papers respecting the ship or cargo be false or colourable, or be suppressed or spoliated; or if the neutrality of the cargo does not distinctly and fully appear ;(r) if the voyage be from, or to a blockaded port,(s) or not legal to the parties engaged in the traffic;() if the cargo be of an ambiguous character as to contraband ;(u) and generally, if the case be a case of farther proof; all or any of these circumstances furnish a probable cause for capture, and justify the captors in bringing in the ship and cargo for adjudication.

CCCCXLVII. Whenever the captors are justified in the capture, they are considered as having a bona fide possession, and are not respon

(0) Advocate and Proctor to Her Majesty in her office of Admiralty. These offices are of high antiquity. See them fully discussed in The Rebeckah, 1 Rob. Adm. Rep., p. 230.

(p) The Anna, 5 Rob., p. 382.

(q) Ibid.

Vide ante, p. 552, Report of 1753. Wheaton on Captures, Appendix, p. 320. s) The Frederick Molke, 1 Rob., p. 86.

The Walsingham Packet, 2 Ib., p. 77. The Hoop, 1 Ib., p. 196. The St.

Antonius, 1 Acton, p. 113.

(u) The Endraught, 1 Rob., p. 22. The Ringende Jacob, Ib., p. 89. The Jonge Margaretha, Ib., p. 189. The Twende Broder, 4 Ib., p. 33. The Frau Margaretha, 9 Ib., p. 92. The Ranger, Ib., p. 125.

SEPTEMBER, 1857.-26

sible for any subsequent losses or injuries arising to the property from mere accident or casualty, as from stress of weather, recapture by the enemy, shipwreck, and the like accidents.(x)

CCCCXLVIII. They are, however, in all cases bound for fair and safe custody; and if the property be lost from the want of proper care, they are responsible to the amount of the damage; for subsequent misconduct may forfeit the fair *title of a bona fide possessor, and [*568] make him a trespasser from the beginning. (y) Therefore, if the

Prize be lost by the misconduct of the Prize Master, or from neglecting to take a pilot, or to put on board a proper Prize Crew, the Court will decree restitution in value against the captors.(z) But although in general, irregularity of conduct in captors makes them liable for damages; yet, in case of a bonâ fide possession, the irregularity to bind them must be such as produces irreparable loss; as, for instance, such as may prevent restitution from an enemy who recaptures the property. (a) And in cases of gross misconduct, the Court will hold the commission of the captors forfeited.(b) But if the injured parties lie by for a great length of time, the Court will not issue a monition to the captors to proceed to adjudication, even when misconduct is laid as the ground of the application.(c)

CCCCXLIX. When a ship is captured, it is the duty of the captors to send her into some convenient port for adjudication. (d) And a convenient port is such a port as the ship *may ride in with safety, [*569] without unloading her cargo; (e) and the captors are bound to put on board the captured ship a sufficient Prize Crew to navigate the vessel into such a port, unless the captured crew consent to navigate her, which in general they are bound to do; but if they consent, they cannot afterwards impute any fault to the captors.(ƒ)

CCCCL. The treatment of the captured crew, especially of a crew belonging to a Neutral State, is a matter of grave importance. The crew ought not to be handcuffed or put in irons, unless in extreme cases; for

(x) The Betsey, 1 Ib., p. 93. The Catharine and Anne, 4 Ib., p. 39. The Caroline, Ib., p. 256. Del Col v. Arnold, 3 Dallas's (Amer.) Rep., p. 333.

(y) The Betsey, 1 Rob., p. 93. The Catharine and Anne, 4 Ib., p. 39. (2) The Der Mohr, 3 Ib., p. 129. The Speculation, 2 Ib., p. 293. The William, 6 Ib., p. 316. Del Col v. Arnold, 3 Dallas's (Amer.) Rep., p. 333.

Union Ins. Comp., 2 Binney's (Amer.) Rep., p. 574.

(a) The Betsey, 1 Rob., p. 93.

Wilcocks v.

(b) The Mariamne, 5 Ib., p. 9.

(c) The Purissima Conception, 6 Ib., p. 45. (d) The Huldah, 3 Ib., p. 235. The Madonna del Burso, 4 Ib., p. 169. The St. Juan Baptista, 5 Ib., p. 33. The Wilhelmsberg, Ib., p. 143. The Elsebe, 5 Ib., p. 173. The Lively, 1 Gallison's (Amer.) Rep., p. 315.

"Enjoignons aux capitaines qui auront fait quelque prise, de l'amener ou envoyer avec les prisonniers, au port où ils auront armé, à peine de perte de leur droits, et d'amende arbitraire; si ce n'est qu'il fussent forcés par la tempête ou par les ennemis, de relâcher en quelque autre port, auquel cas ils seront tenus d'en donner incessament avis aux interressés à l'armement."-L'Ordonnance de 1681, 1. iii. t. ix., Des Prises, art. vii. See also the Ordinance of 1584, art. xliii., Col. Mar., p. 113.

(e) The Washington, 6 Rob., p. 275. The Principe, Edwards, p. 70.

(f) Wilcocks v. Union Ins. Comp., 2 Binney's (Amer.) Rep., p. 574. The Resolution, 6 Rob., p. 13. The Pennsylvania, 1 Acton, p. 33. The Alexander, 1 Gallison's (Amer.) Rep., p. 532. S. C., 8 Cranch's (Amer.) Rep., p. 169.