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When Does Title to Prize Pass?

Published online by Cambridge University Press:  04 May 2017

Sol A. Herzog
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Extract

“ The whole constitution of prize courts, taken in connection with the conclusive effect of their sentences . . . and the exercise of their functions, being admittedly a belligerent right, is an anomaly in jurisprudence.. . . Hence it is that while its authority is derived exclusively from one nation, and that a belligerent, it passes a conclusive sentence on the title to property belonging to another, and that a neutral state, whose only appeal in the last resort is through diplomatic inference to the justice of the sovereign of the captor.”

Type
Research Article
Information
American Journal of International Law , Volume 18 , Issue 3 , July 1924 , pp. 483 - 506
Copyright
Copyright © American Society of International Law 1924

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References

1 Wm. De Burgher, Elements of Maritime International Law, p.212. See a similar statement in Baty's Twiss, Continuous Voyage, p.12. Also Lawrence's Wheaton, 960. For a history of the prize court, consult Oppenheim, International Law, 3rd ed., p. 270 et seq.

2 The Zamora, , 1916, 2 A. C. 77; the Victoria,Kronprinzessen 1919 A. C. 261-261; the Noordam, 1920 A. C. 904, 912; the Prize Cases, (1862) 2 Black 666;Google Scholar Moseley, J., Contraband of War, p. 1;Google Scholar Hurd, R. J. , Prize Court Practice and Procedure, p. 1; Lawrence, International Law, p. 400; Halleck, International Law, Vol. 2, p. 433; Baty-Morgan, War: Its Conduct and Legal Results, p. 358. Pitt-Cobbett, Cases and Opinions on International Law, p. 138; Memorandum of the British Ambassador of April 24, 1916, 3 Diplo. Corr. 78; Special Supplement tothe Journal, Vol. IX, p. 163. Lord Stowell was strongly of this opinion.(The Recovery, (1807) 6 C. Rob. 348.)Google Scholar

3 Huberich and King, Development of German Prize Law, p. 3; same, German Prize Code,pp.VII, XII, XIV,XVI. See the decision of the Imperial High Prize Court in Berlin, inthe case of the Elida (1915), reported in this Journal, Vol.X, p.917: “ Prize courts, when judging the legality of prize action, can take general international principles only into account when the prize regulation contains no instructions and therefore tacitly refers to the principles of international law.”

4 The Bolvik, 2 Russ. and Japan Pr. Cas. 114.

5 H. R. Pyke, The Law of Contraband of War, p. 214;Moore,, J. B. Problems of War and Commerce, p. 11; C. D. Allin, “ English and German Prize Courts,” 2 Minn. L. R. 22; N. Bentwich, Cases on International Law, p. 154; 2Westlake, International Law, p. 288 ff.;Oppenheim, 271.Google Scholar

6 The Zamora, supra. Contrast the position there maintained with that set forth in the Elida, note 3, supra. For a discussion of this see Baty and Morgan, op. dt. p.358.

7 Baty and Morgan, op. dt., p.357.

8 The Juando, (1818) Fed. Cas. 7558, and authorities cited; 2 Halleck 428; De Burgher,op. dt., p.185.

9 The Leonora, 1919 A. C., p.984. See also, 2 Halleck 126; De Burgher, op. dt., pp.212213.

10 Memorandum of United States on Status of Armed Merchant Ships, March 25, 1915,Naval War College,1916, p.95: “ Generally speaking, a citizen of the United States can sell what he pleases to any belligerent.”

11 The Knight Commander, 1 Russ. and Jap. Pr. Cas. 74: “ All agree that the principles of international law as to naval prizes must be based upon a compromise between the interests of the belligerent and of the neutral—a compromise arising from the necessity of protecting the interest of both parties.” With this view, De Burgher accords, pp.189-189. For a somewhat different conception see the Buena Ventura (1898), 87 Fed. 927,929.

12 Mens Rea in Prize Law,” in Grotius Society Publications, Vol. VI, p.99; the Oscar II,1919 A. C. 588.

13 Risley, Law of War, 144; Tiverton, Prindples and Practice of Prize Law, p.2; 2 Halleck,Baker ed., p.125n.

14 Craft captured on Victoria Nyanza,1919, p. 83; the FoUina (1814), 1 Dods. 450; Judgment number eight, Judgments of the High Prize Court of the Republic of China, p.40;Tiverton, op. dt., p.2; J. B. Scott, Status of Enemy Merchant Ships, this Journal, Vol.II,p. 259.

15 The Roumanian, 1916, 1 A. C. 124 (goods seized on shore); the Anichab, 1919 p.329(vessel beached above high water mark); the Achilles,1919 p. 340(in warehouse); the Baweah, 1918 p. 58(in warehouse); the Batavia, 1918 p. 66 (in warehouse); the Glenroy* 1918 p. 82; the Eden Hall, 2 Br. and Col. Pr. Cas. 84 (in warehouse); the Dardelo, 2 Br. and CoU Pr. Cas. 339 (in warehouse) ; Ten Bales of Silk, 2 Br. and Col. Pr. Cas. 248 (cargo landed) j the Achaia, 1 Br. and Col. Pr. Cas. 635 (cargo landed); U. S. v. 703 Casks of Rice, (1862) Fed.,Cas. 16253 b (in warehouse); the Manchuria, (1904), 2 Russ. and Jap. Pr. Cas. 100 (ship in drydock); the Thalia, ibid., p.116 (vessel on shore near drydock); Wheaton, Maritime:Capture and Prize, p.278. For a limitation upon this doctrine, see Brown v. U. S., (1814)12 U. S. 110. For a definition of port, see the Mowe, (1915) p.1.

16 The Polka, (1854) 1 Spinks 447; the Christopher, (1799), 2 C. Rob. 209; the Chacon v.89 Bales, (1821) Fed. Cas. 2568; De Burgher, op. dt., pp.196-196; Wheaton, Maritime Capture and Prize, p.252; 2 Halleck 412-412.

17 The Christopher, supra.

18 The Polka, (1854) Spinks 57; the Comet, (1804) 5 C. Rob. 285; the Nostra de Concieres,(1804) 5 C. Rob. 294; the Nostra Signora de Los Angelos, (1801) 3 C. Rob. 287; the Kier~lighett, (1800) 3 C. Rob. 96; the Hdnrich and Maria, (1799) 4 C. Rob. 43; the Perseverance,(1799) 2 C. Rob. 239; the Flad Oyen, (1799) 1 C. Rob. 135; Williams v. Armroyd, (1813) 7 Cranch 423; Rose v. Himely, (1809) 4 Cranch 241, 276; Hudson v. Guertier (1809), ibid.y 293; De Burgher, op. dt., pp. 194-194; Baty and Morgan, op. dt., p.362; 2 Halleck 422-422; Manning, Law of Nations, p.474.

19 See Naval War College, International Law Topics, 1916.

20 The, Hdnrich and Maria, (1799) 4 C. Rob. 43; the Arabella, (1815) Fed. Cas. 501; the Invincible, (1814) Fed. Cas. 7054; the Santisdma Trinidad, (1822) 7 Wheat. 283, 355; De Burgher, op. dt., p. 198; Wheaton, Maritime Capture and Prize, pp. 262-262; 2 Halleck 426.Google Scholar

21 The Appam, (1916) 243 U. S. 124 (see comment on in 50 Irish L. T. 49); Risley, op.dt., p. 176. For an early sporadic case to this effect, see the Herstelder, (1799) 1 C. Rob. 114.

22 Naval War College, International Law Topics,1916. For an historical account, sees Manning, Law of Nations, Amos ed., pp. 46 et seq.

23 Convention XIII (1907), Art. 23.

24 British Year Book of International Law, 1921-22. See criticism of the Belgian position toy Prof. Higgins, on p. 180 ff.

25 Only the first two are mentioned in the books: the Fanny, (1793) Pet. Adm. Dec. 321;Goss v. Withers, (1758) 2 Burr. 683, 693 (contains elaborate discussion by Lord Mansfield);Pitt-Cobbett, op. cit., p. 141; 1 Kent, Comm. 101; De Burgher, op. cit., p. 189.

26 Pitt-Cobbett, op. cit., p. 141; Wilson,G. G. International Law, p. 299; T. D. Woolsey,Introduction to Study of International Law, 6th ed., p. 249; Atherly-Jones, Commerce in Time of War, pp. 607-607; Twiss, Law of Nations in Time of War, p. 340; the Santa Cruz,(1798) 1 C. Rob. 50.

27 This is the view of von Martens, cited in Jacobsen's Law of the Sea, p. 565. Jacobsen severely criticizes this view, p. 566 n.

28 The Leda, 1919 p. 271, 272 and at 275 per Wilson, J., dissenting; the St. Tudno, (1918)3 Br. and Col. Pr. Cas. at 174; Alexander v. Duke of Wellington, (1831) 2 Buss. and M. 56;French Guiana, (1817) 2 Dods 151; the Maria Francoise, (1806) 6 C. Rob. 282, 293; the Elsebe, (1804) 5 C. Rob. 173; the Manila Prize Cases, (1902) 188 U. S. 254, 258; the Rita,(1898) 89 Fed. 763-763; the Florida, (1879) 101 U. S. 37, 42; the Siren, (1872) 13 Wall. 389,392; the Merrimac, (1864) Fed. Cas. 9476; 858 Bales of Cotton, (1863) Fed. Cases 4318 at p. 389; the Aigburth, (1862) Fed. Cas. 105; Harlan v. Nassau, (1862) Fed. Cas. 6066; the Dos Hermanos, (1825) 10 Wheat. 306; Chacon v. 89 Bales, (1821) Fed. Cas. 2568 at 393;the Joseph Forbes, (1813) Fed. Cas. 7583; De Burgher, op. cit., pp. 186, 213-213, and authorities cited; Tiverton, op. cit., p. 3 Google Scholar; , Atherly-Jones, op. cit., p. 524; Wheaton's Elements, 5th ed.by Phillipson, p. 581; Wildman, Institutes of International Law, Vol. 2, p. 295 et seq; Russian Naval Prize Regulations, 1 Russ. and Jap. Pr. Cas. 318; Japanese Regulations, 2 Russ. and Jap. Prize Cases, 44. But see the Mercurius, (1798) 1 C. Rob. 80.Google Scholar

29 Manila Pr. Cases, supra; the Florida, the Siren, the Dos Hermanos, supra, the Sally,1814,12 U. S. 382 (construing the Prize Act of 1812).

30 The Elsebe, supra, note 28, p. 486.

31 Bonder's Law Dictionary, 8th ed., p. 2723. Wheaton, Captures, p. 52, defines it thus:“ The seizure of a vessel or goods on board the same, or both, belonging to a real or supposed enemy, or for some other cause justifiable by the law of nations, under authority from the belligerent state, with the intent to divest the actual owner of the property and to carry it into port for adjudication before some competent court.” For other definitions see the Alexander, (1813) Fed. Cases, 164; s. c., (1814) 8 Cranch 169; the Resolution, (1805)6 C. Rob. 13.

32 Procurator v. Gesselschaft, 1919 A. C. 291 (constructive seizure of many scattered vessels); La Esperanza, (1822) 1 Hagg. 91; the Edward and Mary, (1801) 3 C. Rob. 305; the Rebekah, (1799) 1 C. Rob. 227, 233; the Mary, (1817) 2 Wheat. 123; the Grotius, (1815) 9 Cranch 368; the Alexander, (1814) 8 Cranch 169; De Burgher, op. cit., p. 186; Twiss, op. cit.,p. 332; Tiverton, op. cit., p. 3; Hall, International Law, 1913 ed., p. 158; Wilson, op. cit., p.299; Wheaton's Elements, by Phillipson, p. 583.

33 The Peterhoff, (1865) Fed. Cas. 11025, “ When property is captured on land by a belligerent,the title passes and is vested so soon as the capture is complete, and the property then belongs absolutely to the sovereign.”

34 34 Oaks v. U. S., (1899), 174 U. S. 778; the Rita, (1898), 87 Fed. 925; Kirk v. Lynd, (1882),106 U. S. 315, 317; 1 Kent. 102,110; Hall, chap. 19, sec. 7; chap. 30, sec. 4. .

35 Halleck 126.

36 Lamar v. Browne, (1875), 92 U. S. 187; Richardson v, Tipton, (1867), 65 Ky. 202; 2 Halleck 380-380, 411; Deveraux Court of Claims, sec. 433; J. B. Scott, “ Status of Enemy Merchant Ships,” this Journal, Vol. II, p. 259.

37 The Peterhoff, supra: “ The distinction between the capture of property by a belligerent during war waged on land, and a prize seizure is as definitely marked in consequence, and effect, as if the two had no common foundation of authority,” citing Kent and Halleck.Compare this with the argument of the Department of State of the United States in Correspondence relative to Neutral Rights between the United States and Powers represented in the Congress at Paris in 1856, p. 12, to the effect that there should be no distinction between sea and land rules.

38 Note 37, supra.

39 , Wheaton's Elements by Phillipson, p. 581;Google Scholar Sir Smith, Frederick , International Law, 5 ed., p. 419; J. B. Scott in this Journal, Vol.X , p. 164; Grotius Society Publications, Vol. 4,p. xxxiv ff.; Oppenheim, 3d ed., p. 263.Google Scholar

40 Goss w. Withers, (1758), 2 Burrows 683; the Buena Ventura, (1898) 87 Fed. 927; White v. Red Chief, (1870), Fed. Cas. 17556; the Sally Magee, (1866) Fed. Cas. 18216; the Elle Warley, (1862) Fed. Cas. 4371; the Prince Leopold, (1861) Fed. Cas. 11428; the Tropic Wind, (1861) Fed. Cas. 14186; the Mary Ford, (1796), 3 Dallas 188-188; 2 Halleck 203n; Lawrence,p. 398; Lee, Capture in War, 2d ed., p. 73; Twiss, p. 332; J. B. Scott, this Journal,Vol. X, p. 105; Memorandum on Status of Armed Merchant Vessels, March 25,1916, in Naval War College, International Law Topics, 1916, p. 104.

41 Matter of the Internment of the German Prize Ship Fam, 2 Diplo. Correa. 139-139: “ In the opinion of this government an enemy vessel which has been captured by a belligerent cruiser becomes, as between the two governments, the property of the captor without the intervention of a prize court. If no prize court is available, this government does not understand that it is the duty of the captor to release his prize, or to refuse to impress him into service. On the contrary, the captor would be remiss in his duty to his government and to the efficiency of its belligerent operations if he released an enemy vessel because he could not take him in for adjudication.”

42 The Resolution, (1781), 2 Dallas, 2.

43 Supra, p. 484.

44 The nature of the right acquired by the capture is discussed, infra, part III.

45 For limitations upon this, see supra, notes 21, 22, 23.

46 See note 91, infra.

47 This position is amplified, infra, p. 495, in the discussion of the modern law.

48 See authorities cited in notes 17, 18, 19, supra. The Henry, (1810) Edw. 192, 195.But see Williams v. Armroyd, (1813), 7 Cranch 423.

49 The Flad Oyen, (1799), 1 C. Rob. 135, 139, per Sir William Scott: “ I apprehend that by the general practice of the law of nations, a sentence of condemnation is at present generally deemed necessary, and that a neutral purchaser in Europe during war, does look to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man having purchased a prize vessel of a belligerent, has thought himself quite secure in making the purchase, merely because the ship had been in the enemy's possession twenty-four hours, or carried infra praesidia—the contrary has been more frequently held. . . .” Compare this with the statement of the same noted judge in the Santa Cruz, (1798), 1 C. Rob. 50, 59, to the effect that “ the mere unity of principle forms no uniform rule to regulate the general practice.”

50 Cases of recapture are cases of prize, to be proceeded in as such—the Schooner Adeline,(1815), 9 Cranch 244, 284; 1 Halleck 514.

51 De Burgher, op. dt., pp. 189-189.

52 This is discussed more at length, infra, p. 493.

53 This is illustrated by the British practice of refusing compensation for neutral goods lost through the destruction of an enemy vessel captured at sea. The American practice is contrary, but the English rule is the logical outcome of the doctrine which transfers title to enemy private property immediately upon the capture. See Oppenheim, op. cit., 3d ., p. 263.

54 See criticism in Jacobsen, op. cit., p. 566n

55 Jacobsen, op. cit., p. 564. Grotius, Bk. I ll, Chap. 6, Sec. 3 (Moricefs translation, p.97) states the rule thus: “ Ships and other things are said to be taken when they are brought into the enemyfs harbor, or the place where their navy rides, for then there is no hope of recovery.” The Ceylon, (1811), 1 Dods. 105, 116.

56 For a full account of the nature and history of jus postliminii, see Kentfs Commentaries,Lacy-fs ed., p. 109 ff.

57 Bk. III , Chap. 6, Sec. 3, p. 97, of Morice's translation.

58 Grotius, supra; Twiss, op. cit., p. 343.

59 Wilson, op. cit., p. 299.

60 See the opinion of the Doctors upon Matters of Prize Law (1568) in Marsden, Law and Custom of the Sea, Vol. I, p. 181. The Ceylon, (1811), 1 Dods. 105-105 (points out the widespread adoption of this rule). See also the Betsey, (1787), 1 C. Rob. 93,100j the Santa Cruz, (1798), 1 C. Rob. 50, 73.

61 See Jacobsen, op. cit., pp. 566n., 587.

62 Lawrence, op. cit., p. 398; De Burgher, op. cit., pp. 189-189; Woodward v. Lacking,(1801), 3 Esp. 286-286 (repurchase by co-national of former owner does not bar the latter)."

63 The Svanfos, (1919), 3 Br. and Col. Pr. Cas. 470 (captor driven off); the Sir Peter, (1815),2 Dods. 73 (donation); the Wight, (1804), 5 C. R ob.315; the Fortuna, (1801), 4 C.Rob. 78;the Apollo, (1801), 3 C. Rob. 308; Pitt-Cobbett, op. cit., p. 143; Wilson, op. cit., p. 299.

64 The , Alexander , (1815), 2 Dods. 37; the Carlotte, (1803), 5. C. Rob. 54; the War Onskan,(1799), 2 C. Rob. 299.Google Scholar

65 The Pontoporos, (1916) p. 100 (recapture from German); the San Francisco, (1810),Edw. 279 (treaty between England and Spain); the Sanson, (1807), 6 C. Rob. 410 (because of the French practice of indiscriminate condemnation); the Eleonore Catharina, (1802), 4 C. Rob. 156, acc. See the interesting case of the Henry, (1810), Edw. 192 (salvage awarded claimant who had purchased vessel at sea for the purpose of restoring it to the owner).

66 The Santa Cruz, (1798), 1 C. Rob. 50, 61, 78; Pitt-Cobbett, op. cit., p. 143.

67 The Sudmark, 1918 A. C. 475; the Odessa, 1916, 1 A. C. 145, 153; the Ionian Ships,(1855) Spinks 193; the Neustra De Los Dolores, (1809) Edw. 60, 62; the Falcon, (1805), 6 C.Rob. 194, 200; the Nostra de Conderes, (1804) 5 C. Rob. 294; the Henrick and Maria, (1799), 4 C. Rob. 43, 55; the Flad Oyen, (1799), 1 C. Rob. 135,139; La Caux v. Eden, (1781) Douglas 594n. (this note contains a most instructive account of the early law on this subject); the St. Joseph, Life of Sir Leoline Jenkins, Vol. 2, p. 776; the Peterhoff, (1865) Fed. Cas. 11025; Commodore Stewart's Case, (1864), 4 Wall. 634, 640; the Elle Warley, (1862) Fed. Cas. 4371,(1838) 3 Opin. of the Atty. Genl. 377; Sheaf v. Hogsheads, (1800) Fed. Cas. 12730; the Resolution, (1781), 2 Dali. 1, 5; the Knight Commander, (1904), 1 Russ. and Jap. Pr. Cas. p. 75. The decree relates back to the time of seizure. Anderson v. Marten, 1908 A. C. 334; the Odessa, supra; Wheaton's Elements by Phillipson, p. 581.

68 De Burgher, op. dt., p. 185; Hall, op. dt., 7 ed., p. 807; Jacobsen, op. dt., p. 564; Kent,Commentaries on International Law, Abdy's ed., p. 248; Kent, Commentaries, p. 102; Manning,op. dt., p. 476; Pitt-Cobbett, op. dt., p. 141; Smith, op. dt., 5 ed., p. 425; Tiverton,op. dt., p. 3; Upton, Maritime Warfare and Prize, 3 ed., p. 237; Wheaton, Captures, p. 274;Wheaton, Elements, p. 9; Woolsey, op. dt., p. 252; J. B. Scott in this Journal, Vol. X, p.105; C. N. Gregory in this Journal, Vol. II, p. 315. See also Neutrality Rules of Brazil,published in Naval War College, International Law Topics, 1916, p. 13.

69 Austrian Treaty, Art. 378; Bulgarian Treaty, Art. 296; German Treaty, Art. 440;Hungarian Treaty, Art. 361; Turkish Treaty, Art. 418. Certainly this is not to be assimilated to the case of the Confederate prize courts. See the Lilia, (1862) Fed. Cas. 8348.

70 Supra, p. 488. See the Leucade, (1855), 2 Spinks 228, 231. De Burgher, op. cit., pp.188-188.

71 J. B. Scott, in this Journal , Vol. X, p. 104: “ Public armed vessels of the enemy upon the high seas are subject to capture, and title passes from government to government,without the need for a decision of the prize court.”

72 The Leucade, (1855) Spinks 217; the Felicity, (1819), 2 Dods. 381, 385; Atherly-Jones,op. cit., p. 589; 2 Gamer, International Law and the World War, p. 362 and authorities cited;Bentwich, op. cit., p. 93; Lawrence, op. cit., 4 ed., p. 483; Smith, op. cit., 5 ed., p. 420; Memorandum on Status of Armed Merchant Vessels, Naval War College, International Law Topics,1916, p. 105. In Oppenheim, 3rd ed., Vol. 2, p. 620, will be found a good discussion of this problem. See also the German note on the sinking of the Wm. P. Frye in 1 Diplo. Correa.87. For a contrary view see Woolsey, op. cit., sec. 148.

73 See authorities cited, supra, note 72. .

74 Memorandum on Status of Armed Merchant Vessels, Naval War College, International Law Topics, 1916, p. 105: “ In case of neutral merchantmen, the right to sink in any circumstances,is doubtful;” Wheaton's Elements by Phillipson, p. 799, to the effect that if the captor cannot bring the captured property in, he should release it, even if there be a doubt whether it is neutral or enemy. See Smith, op. cit., 5 ed., p. 424, and Oppenheim,3 ed., p. 273.

75 Oppenheim, 3d ed., p. 262, note, in which he speaks of the Ceylon, (1811), and the Georgianna, (1814), 1 Dods. 105, 397, as not being decisive on the point. See the Nostra Signora de Rosaria, (1801), 3 C. Rob. 10.

76 2 Diplo. Corres. 139-139: “ Whatever the previous status of the vessel . . . it would be necessary, before the vessel could be treated by a neutral power . . . as a German fleet auxiliary, instead of as a prize . . . that there should have been a finding of condemnation of her on some other ground by a competent court.” The American answer was a flat denial of this contention.

77 p. 419. “ The modem view, however, tends to regard the captor's right as one of possession only, which may be transferred into a property right by condemnation of the prize court.”

78 p. 262. “ Capture of private enemy property does not vest the property finally in the hands of the belligerent whose forces effected the capture. The prize has to be brought before a prize court, which by confirming the capture through adjudication of the prize, makes the appropriation by the capturing belligerent final.”

79 The Dusseldorf, (1920) A. C. 1034, 1037; the Purigsima Conception, (1805), 6 C. Rob.45, 47; the Vroto Anna Catkarina, (1803), 5 C. Rob. 15; the Twee Oebroeders, (1800), 3 C.Rob. 162; the Anne, (1818), 3 ibid., 435, 447; the Adela, (1867), 6 Wall. 266; the Sir Wm.Pere, (1866), 5 Wall. 517, 535; the Lilia, (1862) Fed. Cas. 8348; Twiss, op. cit., pp. 488, 494.

80 The Valeria, 1921, 1 A. C. 477; the Dusseldorf, 1919 p. 240 (no damages nor costs,vessel released); the Anna (1805) 5 C. Rob. 373 (damages awarded).

81 The Appam, (1916), 243 U. S. 124; the Marianna Flora, (1826), 11 Wheat. 1, 42; the Fanny, (1824), 9 Wheat. 658, 668; La Amislad de Rues, (1820), 5 Wheat. 385; L'lnvindble,(1816), 1 Wheat. 238, 258; the Alerta, (1815), 9 Cranch 359, 364; the Betsey, (1794), 3 Dallas 6; Hollingsworth v. The Betsey, (1793) Pet. Adm. Dec. 330; the Juando, (1818) Fed. Cas.

82 Twiss, op. d t, p. 498.

83 The Mary Lord, (1796), 3 Dali, at 192.

84 The Falcon, (1805), 6 C. Rob. 194, 200. See also the authorities cited at the end of note 67, supra.

85 The Leonora, 1919 A. C. 985. “ The office of a court of prize is to provide a formal and regular sanction for the law of nations applicable to maritime warfare, both between belligerent and belligerent, and between belligerent and neutral. . . . The jurisdiction of a court of prize is at least as essential in the neutrals' interest, as in the interest of the belligerent,and if the court is to have power to release in the interest of the one, it must also have inherent power to condemn in justice to the other. Capture and condemnation are the prescriptive and established modes by which the law of nations as applicable to maritime warfare is enforced.” The Stigslad, 1919 A. C. 279 (damages for detention refused, though freight allowed). For a complete review of this right of the belligerent and corresponding risk upon the neutral, see the note of the Secretary of State of the United States to the British Foreign Office, of Oct. 21,1915 (3 Diplo. Corres. pp. 25 et seq.). This contains also a vigorous protest against the practices of Great Britain as to search and seizure.“ Neglected Fundamentals of Prize Law,” T. J. Baty, in 30 Yale Law Journal contains a r6sum6 of the latter practice.

86 The Bernice, 1921, 1 A. C. 464; The George, (1815), Fed. Cas. 5328.

87 (1855), 2 Spinks 170. See the rule of this case, infra, note 90.

88 The George, (1815), 1 Mason 26, 27. See also the Edna, 1921, 1 A. C. 735, 752.

89 The Dusseldorf, 1920 A. C. 1034, 1041: “ Though, as now appears, the captors had no legal right to possession, in placing the cargo and ship in custody of the marshal, they acted in discharge of an obligation of a very binding character from the observance of which it would be most inexpedient in any way to deter persons in their position.” The Juando,(1818) Fed. Cas. 7558 at p. 1189: “ A seizure as prize is no trespass, though it may be wrongful. The authority and intention with which it is done deprives the act of the character that would otherwise be impressed upon it. The tort is merged in the capture as prize.” The Buena Ventura, (1899), 175 U. S. 384; the Tropic Wind, (1861) Fed. Cas.14186. .

90 The Ostsee, supra, p. 171. The same rule existed in France, ibid., p. 172. The Bernice,1921,1 A. C. 458 (damages awarded for being ordered to British port through mistake as to Order in Council) and authorities cited; the Acteon, (1815), 2 Dods. 48 (full compensation awarded for destruction of property, it being found that in no wise had the owner contributed to the necessity of capturing and destroying his property. The captor had interpreted a license as invalid when it was really valid). The Nemesis, (1808) Edw. 50 (unjustifiable capture, costs and damages awarded).

91 The Leucade, (1855), 2 Spinks 228, (vessel restored, but without costs or damages because the validity of the seizure depended upon the nice construction of public documents).See also the Acteon, note 90, supra, where it is said (p. 52) the claimant will get simple restitution where he has in some degree contributed to the loss.

92 The Marie Sckroeder, (1800), 3 C. Rob. 147, 152; the Lively, (1812) Fed. Cas. 8403;Story, Prize Court Practice, Pratt's ed., p. 75.

93 The Elisa, (1854) Spinks 88; the Edna, 1921, 1 A. C. 735, 752. For a rather extreme application of this doctrine, see the Baron Sternland, 1918 A. C. 173, when contraband goods consigned to neutral port are seized on the ground of ultimate enemy destination, existence of extensive trade by the re-export of similar goods or the products thereof, from the neutral country to the enemy country, is of itself such strong circumstance of suspicion as divests the successful claimant from recovering costs or damage. See, however, the Acteon, (1815), 2 Dods. 48, 52: “ It makes no difference whether the party inflicting the damage has acted from improper motives or otherwise. If the captor has been guilty of no wilful misconduct,but has acted from error and mistake only, the suffering party is still entitled to full compensation,provided he has not by any conduct of his own, contributed to the loss.”

94 The Alwina, (1916), 2 Br. and Col. Pr. Cas. 186; the Cathay, (1916), 2 Br. and Col. Pr. Cas.303 (expenses of detention); the Jeanne Marie, (1855), 2 Spinks 165; the Ostsee, (1855),ibid., 170, 171; the Franciska, (1855), 10 Moo. P. C. 73, 92; the Hope, (1813), 1 Dods. 226,233; the Christina Marie, (1802), 4 C. Rob. 166; the Catherine and Anna, (1801), ibid., 39;the Stert, (1801), 4 C. Rob. 65; the Gute Gesellschaft Michael, ibid., 94 (see also the Jonge Hermanns, note, p. 95, where the same result was reached, despite the fact that it was represented that the value of the suspected property was less than the amount of the expenses);the Beurse van Koningsberg, (1800), 2 C. Rob. 169, 173: “ If neutrals, must know they cannot enjoy the privileges of peace in time of war, without taking some disadvantages along with them.” The Imina, (1800), 3 C. Rob. 167 (captors allowed their expenses, for it is incumbent on them to bring the cargo to adjudication); the James Andrews, (1862)Fed. Cas. 7189.

95 See note 90, supra.

96 The conditions under which this right may be exercised, is discussed, infra, under liability of the captors for loss.

97 The Valeria, (1921), 3 Br. and Col. Pr. Cas. 834 (captor deliberately sank vessel on ground was danger to navigation); the Oscar II, (1920), 3 Br. and Col. Pr. Cas. 588; the John,(1818), 2 Dods. 336, 338; the Maria, (1803), 4 C. Rob. 348 (goods stolen from warehouse);the Carolina, (1802), 4 C. Rob. 256 (storm); the Catherine and Anna, (1801), 4 C. Rob. 39,“ but if accident or mere casualty happen, it must fall on the party to whom the propertyis ultimately adjudged” ; Fay v. Montgomery, (1852) Fed. Cas. 4709 at p. 1114: “ Anhonest exercise of the discretion necessarily arising out of his command cannot be treated as such misconduct in the commander of a public ship, as will forfeit the protection of his fair title and render him liable to be treated as a true trespasser.” (Compare this with the statement in the Leurnde, (1855), 2 Spinks 228, 231.)

98 The Maria, (1803), 4 C. Rob. 348, 353: said should not extend liability of carrier and innkeeper to persons who “ are only to be required to furnish such care and due diligence,as they would apply to their own property.”

99 The WHliam, (1806), 6 C. Rob. 316, 317 (compare Sir William Scott's statement here with that in the Maria, supra. In this case, Scott specifically rejects the standard he laid down in the Maria, but he does not mention the latter case); the Maria, supra, no extraordinary diligence required; the New Sweden (Aug. 1921) reported in 8 L. L. L. R. 480, 481: “ It was long ago decided that a captor, by virtue of his belligerent right of capture, is not an insurer, and is under no obligation to insure.”

100 The New Sweden, (Aug. 1921), reported in 8 L. L. L. R. 480, 481; the Catherine and Anna, (1801), 4 C. Rob. 39, 40; the Betsey, (1798), 1 C. Rob. 93, 96: “ It is clear law that a bona fide possessor is not responsible for casualties, but he may by subsequent misconduct,forfeit the protection of his fair title and render himself liable to be considered a trespasser from the beginning” ; the Amiable Nancy, (1817) Fed. Cas. 331; the Anna Maria, (1817),2 Wheat. 327; the George, (1815) Fed. Cas. 5328; the Lively, (1812) Fed. Cas. 8403; the notion of the cases seems to be that the misconduct relates back and renders the captor a trespasser from the start. If so, it is difficult to see why he should then be allowed the amount of his expenses, as though he had acted properly (see note 94, supra).

101 The Oscar II, 1920 A. C. 748, where it is said that the Procurator-General takes the place of the actual captor for all purposes. This liability does not extend to the Admiral of the station, under whom the captor acted, the Mentor, (1799), 1 C. Rob. 179. See also the Louisa Agnes, (1862) Fed. Cas. 8531, .at p. 947. However, the government does not lose the benefit of a capture because of irregularity by the captor. The Shark, (1862) Fed.Cas. 12708.

102 The Oscar II, supra. '

103 The Principe, (1809) Edw. 70 (ship carried to dangerous port); the William, (1806), 6 C. Rob. 316 (refused to take pilot); the Peacock, (1802), 4 C. Rob. 185,193 (carried to wrong port); the Der Mohr, (1800), 3 C. Rob. 129 (refused to take pilot).km

104 The Qerasino, (1857), 11 Moo. P. C. 88, 92: “ It is the duty of the captor to send in as soon as possible . . . for adjudication . . . in order that speedy justice might be done and the property, if illegally seized, might be restored, with as little delay as possible to the owner” ; the Madonna Del Burso, (1802), 4 C. Rob. 169 (captor delayed in bringing proceedings); the Hoop, (1801), 4 C. Rob. 145 (goods pillaged); the Zee Star, (1801), 4 C.Rob. 71 (demurrage allowed because of delay by captor in consenting to restitution); the Concordia, (1799), 2 C. Rob. 102 (cargo found deficient after decree of restoration); the Corner Martimo, (1799), 1 C. Rob. 287; the Santa Catharina, (1919), 88 L. J. p. 170.

105 The Dove, (1813) Fed. Cas. 4035 (damages against recaptor for embezzlement); the Der Mohr, the William, supra, note 99; the Frie Darner, (1805), 5 C. Rob. 357 (damages to the vessel and personal injury to the crew).

106 The Lively, (1812) Fed. Cas. 8403, at p. 633, and authorities cited. There is here a statement to the effect that there is no case where the voyage has been lost, that the profits would be allowed.

107 The Oscar II, supra; the Valeria, 1921, 1 A. C. 480, 481. For duty of the captor,generally, see the Sudmark, 1918 A. C. 475.

108 The Stigstad, 1919 A. C. 279, 284.

109 The Elsebe, (1804), 5 C. Rob. 173,183. The Susanna, (1805), 6 C. Rob. 48,51: “ While the ship is at sea, he (the captor) may deliberate and after mature investigation, discharge himself of the custody.” In another place, he speaks of “ their inchoate right as captors.” The Lord Nelson, (1809) Edw. 79, 82. See also the Fanny, (1793) Pet. Adm. Dec. 309, 322; Atherly-Jones, op. cit., p. 609.

110 Harlan v. Nassau, (1862) Fed. Cas. 6066; Kent, Commentaries, Abdy's ed., p. 248;De Burgher, op. dtt., pp. 185-185; Wheaton, 5th ed. Phillipson, p. 581. See the Peterhof,(1865), 72 U. S. 28, for a vigorous pronouncement to the same effect.

111 The Zamora, 1916, 2 A. C. 77.

112 See infra, p. 506.

113 The Emil, (1915), 1 Br. and Col. Pr. Cas. 257 (held by British citizen) allowed mortgagee to appear as claimant, the owner not being present; the Tergestia, (1915) 2 L. P. C. 149;the Ocean Bride, (1855), 2 Spinks 8, 22; the Aina, (1854) Spinks 8 (held by neutral); the Carlos F. Roses, (1899), 177 U. S. 655, 666 (see p. 669 for citation of English cases); the Buena Ventura, (1898), 87 Fed. 927, 937 (held by loyal northern citizen); the Delia, (1862) Fed.Cas. 3777; Bulchos v. Darrel, (1795) Fed. Cas. 1607; Judgment No. 6 (1918), High Prize Court Judgments—China, p. 25.

114 The Tobago, (1804), 5 C. Rob. 218 (held by neutral and executed prior to outbreak of war); the Aina, supra; the Tergestia, supra; the Frances, (1814), 8 Cranch 418; the Mary,(1815), 9 ibid., 126; the Carlos F. Roses, supra.

115 The Nassau, (1863) Fed. Cas. 10028; the Battle, (1868), 6 Wall. 498 (repairs and supplies by a loyalist citizen); the Carlos F. Roses, supra; the Tergestia, supra; the Rossia, (1904), 2 Russ. and Jap. Pr. Cas. 43; Takahashi, op. cit., p. 557.

116 The Odessa, 1915 p. 2 (held bill of lading as security); affirmed in the Privy Couneil,1 Br. and Col. P. C. (1915) 544; the Flamenco, (1915), 1 Br. and Col. Pr. Cas. 509, 511; the Eumaeus, 1915, 1 Br. and Col. Pr. Cas. 605, 610; the Carlos F. Roses, supra.

117 Clan Urquhart, (1915), 1 Br. and Col. Pr. Cas. 498n.; (by British merchants as to freight);the Linaria (1915), 2 L. P. C. 286 (by British merchants); the Ida, (1854), 1 Spinks 331 (by neutral on cargo); the Velasco, (1861) Fed. Cas. 16910a (by master for repairs, supplies and wages); the Carlos supra, F. Roses.

118 The Nigretia, (1905), 2 Russ. and Jap. Pr. Cas. 208, Takahashi, op. cit., p. 551, 553.

119 The Marianna, (1808), 6 C. Rob. 24.

120 The Hoffnung, (1807), 6 C. Rob. 383 (part of cargo sold before the seizure, to pay for repairs. Captor of the condemned cargo claimed contribution.)

121 The Ariel, (1857), 11 Moo. P. C. 119, 135; Harlan v. Nassau, (1862) Fed. Cas. 6066;Cargo ex Manchuria, (1905), 2 Russ and Jap. Pr. Cas. 69.

122 The Sally Magee, (1866) Fed. Cas. 16216. See also the Velasco, note 113, supra.

123 The Ida, (1854), 1 Spinks 331, 341.

124 The Napoleon, (1862) Fed. Cas. 10012 (claimant was the owner, and his servant, in violation of orders, had used the vessel in the Confederate service).

125 The Delta (1862) Fed. Cas. 3777, at p. 446.

126 Judgment No. 4 (1919), Judgments of the High Prize Court, China, 18: “ According to international law, a belligerent has an absolute right to what he has lawfully captured. Such acquisition, being original in character, is free from any right to the same thing that may exist in any third party; a fortiori, the existence of such rights cannot prevent lawful capture.” Judgment No.5>, ibid., 22, acc.

127 The Tobago, (1804), 5 C. Rob. 218, 222-222, where Sir Scott William elaborates upon this notion. See 27 Judicial Review 170, 171, for a suggestive comment upon this problem. It may be urged that the same considerations which control in the case of salvage, bottomry, and the like, where no question of prize is involved, are applicable here. But this has no support from the authorities.

128 The Tobago, supra, p. 222.

129 The Stigstad, 1919 A. C. 279; the lob, (1915) 1 Br. and Col. Pr. Cas. 291; the Juno,(1914), ibid., 151 (laid down the rule since followed, of allowing what is fair and reasonable under the circumstances); the Katwik, (1915) 1 Br. and Col. Pr. Cas. 282; the Vrow Henrico,(1803), 4 C. Rob. 343, 347; the Der Mohr, (1802), ibid., 314 (amount of freight decreed exceeded value of the cargo condemned); the Bremen Flugge, (1802), 4 C. Rob. 90, 91; the Hoop, (1799), 1 C. Rob. 196, 219 (captor's expenses preferred, however); the Emanuel,(1799), ibid., 296; the Amy Warwick, (1862) Fed. Cas. 343 (when neutral has jits in re— when he is in possession with a right of retention until a certain amount is paid him, the captor takes cum onere)) Ship Societe, (1815), 9 Cranch 209; the Hazard, (1815), ibid., 205;Antonio Johanna, (1816), 1 Wheat. 159.The captor may also have other liabilities to discharge. The Sorjarren, (1915), 1 Br. and Col. Pr. Cas. 589 (claim for general average); the Chateaubriand, (1916), 2 Br. and Col. Pr.Cas. 69 (demurrage, insurance and salvage); the Gothland, 1916 p. 239n. (general average and salvage). When the vessel is condemned, the captor may be awarded freight with respect to cargo. The Fortuna, (1802), 4 C. Rob. 278. For criticism of this general rule,see Holland, Prize Law, p. 758. It is a little difficult to see why seamen's wages would not be open and apparent, so as to satisfy the requirements.

130 The Prins der Nederlander, 1921, 1 A. C. 754 (this discretion will be strictly exercised;the fact of the ship owner's knowledge is not by itself decisive); the Jeanne, 1917 p. 8.

131 This is clear on the authorities, as to neutral property, and should be so, on principle,as to enemy, supra, p. 496.

132 Convention XII (1907).

133 See discussion in Oppenheim, op. dt., 3d ed., pp. 638 ff., and Smith, op. dt., 5th ed. pp. 327 ff.