before condemnation. And where the commander of a national ship can not, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his Government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a court of the United States.' Wheaton, Hist. Law of Nations, 321; Jecker et al. v. Montgomery, 13 Howard R. 516; The Peacock, 4 Rob. 185; Hudson v. Guestier, 4 Cranch R. 293; Williams et al. v. Armoyd, 7 Cranch R. 523; The Arabella and Madeira, 2 Gallis. 368; The Henric and Maria, 6 Rob. 138, note; the Falcon, 6 Rob. 198; La Dame Cécile, 6 Rob. 257."

2 Halleck's Int. Law (3d ed., by Baker), 405.

3. CASES OF VIOLATED NEUTRALITY.

§ 1225.

Property captured in violation of the neutrality of the United States (i. e., within territorial waters) or captured on the high seas by a cruiser fitted out or armed in violation of the neutrality of the United States, will, if retained or brought within the jurisdiction of the United States be judicially restored.

The Estrella, 4 Wheat. 298; the Santissima Trinidad, 7 Wheat. 283; the
Gran Para, 7 Wheat. 471.

See, also, L'Invincible, 1 Wheat. 238, 244, note.

"There are two apparent exceptions to this exclusive jurisdiction of the prize courts of the captor's country over questions of prize: 1st, where the capture is made within the territory of a neutral state, and, 2nd, where it is made by a vessel fitted out within the territory of the neutral state. In either of these cases the judicial tribunals of the neutral state have jurisdiction to determine the validity of captures so made, and to vindicate its own neutrality by restoring the property of its own subjects, or of other states in amity with it. 'A neutral nation,' says the Supreme Court of the United States, which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law which may arise in the progress of such discussion. But it is no departure from this obligation if, in a case in which a captured vessel be brought, or voluntarily comes infra prasidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on its own neutrality by the vessel which has made the capture. So long as a

nation does not interfere in the war, but professes an exact impartiality towards both parties, it is its duty, as well as right, and its safety, good faith, and honour demand of it, to be vigilant in preventing its neutrality from being abused, for the purpose of hostility against either of them. . . . In the performance of this duty, all the belligerents must be supposed to have an equal interest; and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored.' These are not, properly considered, exceptions to the general rule of prize jurisdiction, but are cases where the courts of a neutral state are called upon to interfere for the purpose of maintaining and vindicating its neutrality."

Halleck, Int. Law (3d ed., by Baker), II. 395–396.

4. DAMAGES.

(1) RIGHT TO.

§ 1226.

The court of admiralty of Pennsylvania was held to have jurisdiction of an action of damages brought by the captain of an American privateer against three other American privateers, their owners and commanders, for wrongfully taking from on the high seas a prize which he had there captured.

Talbot v. The Commanders and Owners of Three Brigs, High Court of Errors and Appeals of Pennsylvania, 1784, 1 Dall. 95. This was during the existence of the Articles of Confederation.

It was held that the trespassers were liable at least to the value of the captured vessel. (Ibid.)

"The sovereign is therefore held responsible to the state whose citizen the claimant is, that no injustice is done by the capture."

Dana's Wheaton, § 388, note 186, p. 483.

A court of admiralty (prize as well as instance) of one nation may carry into effect the decree of an admiralty court of another nation. And where the decree was for restitution, which could not be specifically enforced, it was held that damages might be decreed.

Penhallow v. Doane (1795), 3 Dall. 54.

The right to seize a vessel and send her in for further examination is not the right to spoliate and injure the property captured; and for any damage or spoliation the captors are answerable to the owners if the property be not condemned as prize.

Del Col v. Arnold (1796), 3 Dall. 333.

The facts in this case (Del. Col v. Arnold) were as follows: A French privateer had captured as prize, on the high seas, an American brig, called the Grand Sachem and owned by the defendant in error. At the time of taking possession of the brig, a sum of money was removed from her into the privateer; a prize master and several mariners were put on board of her, and were directed to steer for Charleston. On their way to Charleston a British frigate captured the privateer and gave chase to the prize; whereupon the prize master run her into shoal water, and there she was abandoned by all on board, except a sailor originally belonging to her crew, and a passenger. In a short time she drove on shore, was scuttled, and plundered. The money taken from her by the French privateer, and taken in the latter by the British frigate, had been condemned in Jamaica. A libel was filed in the district court of South Carolina by the defendant in error against Del Col and others, the owners of the French privateer. When the marshal came with process against the brig, she was in the joint possession of the custom-house officers and the privateer's men, the latter of whom prevented the execution of the process. Thereupon a ship and cargo, a prize to the privateer, lying in the harbor of Charleston, were attached by the libelant, and sold by agreement between the parties, and the proceeds paid into court, to abide the issue of the suit. The district court pronounced a decree in favor of libelant for the full value of the Grand Sachem and her cargo, with interest at 10 per cent from the day of capture; declared "that the proceeds of the ship Industry and her cargo, attached in this cause, be held answerable to that amount;" and directed that the defendant in error should enter into a stipulation to account to the plaintiffs in error for the money condemned as prize to the British frigate, or any part of it, that he might recover as neutral property. This decree was affirmed by the circuit court and in turn by the Supreme Court. So far as this case may be interpreted to lend support to the idea that the courts of a neutral can take cognizance of the legality of belligerent seizure, it has been severely criticized by the Supreme Court (L'Invincible, 1 Wheat. 238), and pronounced to be "glaringly inconsistent" with the acknowledged doctrine of that court.

The right to abandon and recover for a total loss depends upon the actual state of facts at the time of the offer to abandon, and not upon the state of the information then received. Hence where, on information of capture, an offer to abandon was made on July 19, 1806, but it was afterwards learned that a final sentence of restitution had been made on the 9th of the same month, it was held that the plaintiff could not recover for a total loss, though the actual restitution was not made till several hours after the offer to abandon.

Marshall v. Delaware Ins. Co. (1808), 4 Cranch, 202.

The commander of a United States ship of war is answerable in damages to persons injured in the execution by him of his instructions of the President of the United States which are not warranted

by law. Hence, it was held, in a case of capture under the act of February 9, 1799, that the captor was answerable in damages for seizing on the high seas a vessel from a French port, an act not warranting such seizure, though the instructions of the President authorized it to be made.

Little v. Barreme (1804), 2 Cranch, 170.

Whenever an officer seizes a vessel as prize he is bound to commit her to the care of a competent officer and crew, not because the original crew, when left on board, in case of seizure of the vessel of a citizen or neutral, are released from their duty without the assent of the master, but because of a want of the right to subject the crew of the captured vessel to the authority of the captor's officer. If a vessel were seized as prize and no one put on board but the prizemaster, without any undertaking of the original ship's company to navigate her under his orders, the captor might be liable for any loss that followed from insubordination of the crew.

The Eleanor, 2 Wheat. 345.

The Isabella having been condemned by the Supreme Court of the United States as a British vessel falsely and fraudulently covered by Spanish documents, and consequently held to be good prize of war (6) Wheat. 1-100), and a claim having been made by Alonzo Benigno Munoz for reimbursement by Congress, and the Attorney-General having been requested by the Judiciary Committee to communicate information upon the subject, an answer was filed approving the reasons of the action of the executive and the judiciary.

Wirt, At. Gen., 1822, 1 Op. 536.

See Dana's Wheaton, § 388, note 186.

A captor may, under imperative circumstances, sell the captured property and subject the proceeds to the adjudication of a court of prize. The orders of the commander-in-chief not to weaken his force by detaching an officer and crew for the prize, or his own deliberate and honest judgment, exercised with reference to all the circumstances, that the public service does not permit him to make such detachment, will excuse the captor from sending in his prize for adjudication. But if no sufficient cause is shown to justify the sale, or if the captor has unreasonably neglected to bring the question of prize or no prize to an adjudication, the court may refuse to proceed to an adjudication and may award restitution, with or without damages, upon the ground of forfeiture of rights by the captor, although his seizure was originally lawful.

If the captor should neglect to proceed at all, the court may, upon a libel filed by the owner for a marine trespass, grant a motion to

proceed to adjudication in a court of prize, or refuse it and at once award damages. It is the duty of the captor, under the law of nations (affirmed by act of Congress), to send captured property in for adjudication by a court of his own country having competent. jurisdiction.

Jecker v. Montgomery, 13 How. 498.

Wanton capture without probable cause subjects the captor to damages.

The Thompson, 3 Wall. 155; the Dashing Wave, 5 Wall. 170.

The British ship Restormel, laden with coal for the Spanish fleet, and which had followed the fleet from Porto Rico to Curaçao, was captured by a United States cruiser while endeavoring to enter the port of Santiago de Cuba, where the Spanish fleet then lay. Judge Locke, of the United States district court for the southern district of Florida, although he considered the ship liable to capture and her cargo, at least, to condemnation, being desirous to give the owners the benefit of every doubt, released the ship, but allowed nothing for freight or for costs or expenses. With reference to a claim which the master of the Restormel afterwards sought to make for the value of provisions supplied by him to the American prize crew, the Navy Department expressed the opinion "that the item of claim for provisions consumed by the prize crew should be considered, together with the claims for damages presented to the court, as a loss which resulted from the employment of the ship at the time of her capture and for which the captors were not liable."

Mr. Day, Sec. of State, to Sir Julian Pauncefote, British ambass., Aug. 6, 1898, MS. Notes to British Leg. XXIV. 276.

A claim was made by the master of the British vessel E. R. Nickerson for damages and losses consequent upon her alleged wrongful capture and detention by an American man-of-war. It appeared that the prize court, in discharging the vessel, decided that there was reasonable cause for capture. The Attorney-General held that, with the rendition of its decision, the jurisdiction of the prize court ended, but suggested that there appeared "to be ample jurisdiction in the Court of Claims to determine the case, either upon petition of the claimant or by reference and transmission from the Department of State." In this relation the Attorney-General called attention to section 1068 of the Revised Statutes of the United States, and to the authorities there cited in the margin, especially to the case of the United States v. O'Keefe, 11 Wall. 178.

Mr. Hay, Sec. of State, to Sir Julian Pauncefote, British ambass., Dec. 6, 1898, No. 1279, MS. Notes to British Leg. XXIV. 397.

See, also, same to same, No. 1409, April 17, 1899, id. 498.