should indemnify the captors against the expenses which her misconduct has occasioned. Or,

(2.) She may be involved, with little or no fault on her part, in such suspicion as to make it the right or even the duty of a belligerent to seize her. There may be no fault either in the captor or the captured; or both may be in fault; and in such cases there may be damnum absque injuriâ, and no ground for anything but simple restitution. Or,

(3.) There may be a third case, where not only the ship is in no fault, but she is not by any act of her own, voluntary or involuntary, open to any fair ground of suspicion. In such a case a belligerent may seize at his peril, and take the chance of something appearing on investigation to justify the capture; but if he fails in such a case, it seems very fit that he should pay the costs and damages which he has occasioned."

His lordship then proceeded to deliver an exhaustive and instructive summary of opinions of the text-writers, and of cases in precedent-some twenty in number-of which he declared the result to be, "that in order to exempt a captor from costs and damages in case of restitution, there must have been some circumstance connected with the ship or cargo affording reasonable ground for belief that one or both, or some part of the cargo, might prove, upon further inquiry, to be lawful prize." What should amount to probable cause, could not be exactly defined; but if the Court should find in any case in favour of such grounds of capture, the captors would be justified, although the Court should acquit without ordering further proof. In order to subject captors to damages and costs, it is not necessary to prove vexatious conduct on their part, nor will honesty of mistake exempt them from liability to compensate the neutral sufferer by their action; for costs and damages are not the punishment of captors, but the compensation of the injured party.

If the captors' mistake arises from the proceedings of their own Government, they are none the less liable to the captured, but they have a claim, on their part, to be indemnified by the Government (y). In this case (The Ostsee), the vessel had been seized for a supposed breach of blockade, whereas it was clear from her papers that she had committed no such breach. If, as was alleged, there was a confusion. with respect to the blockades in the Baltic, the circumstance could nevertheless afford no answer to the claim of a neutral, innocent of all fault. With respect to the captors' contention that having acted bona fide they ought to be indemnified by her Majesty's Government, it was, said the Court, sufficient to say that in this case there appeared to be no blame whatever imputable to the Government. They had in no way contributed to the capture or done anything to mislead the naval officers. Whether naval officers who have acted wrongfully as regards neutrals, but without wilful misconduct, should be indemnified against the consequences of their acts, by the Crown authorities, was held not to be for the Court to decide. The Court had only to administer justice as between the claimants and the captors. Further, it was not for the Court to discuss the question of liability as between the admiral who had given general orders, and Captain Otter who had acted under them; and public ships and privateers, it was declared, must both be held to be governed by the same principle as regards their liability to pay damages for captures effected without probable or reasonable cause. The Court, moreover, was not in this decision laying down rules merely for the British navy; for whatever was held in the English prize courts to excuse a British officer, would, it was observed, be held by foreign Courts to excuse captors members of such foreign nations.

(y) Vide Routh v. Thompson, 11 East, 428.

Upon the whole, said the Court, the captors must be held liable, -amount of damages to be fixed by the registrar in the usual way. So far as any claim for demurrage was concerned, three weeks of the delay had to be attributed to the fault of the claimants in rejecting captors' offer of restitution, accompanied by payment of claimants' expenses. The Court observed, in conclusion, that judgment seemed to have passed in the Court below without much examination of the principles and the authorities; and that the cases in which, during the late war, restitution was attended with costs and damages, turned out to be more numerous than was supposed. (It may be added that the damages-1,2237. as against 1,9617. claimed-were, with interest at 4 per cent., subsequently paid by the Government.)

It is very clear that where there have been reasonable grounds for carrying a vessel into port for examination, no claim for costs or damages will be allowed against the captors.

Whether in any case the grounds are to be deemed reasonable or not will depend upon the actual circumstances (≈). And where a capture has arisen from a reasonable misapprehension or mistake, a claim for compensation will similarly be refused. Thus, in the case of the four Dutch vessels (a) seized by boats sent from a warship lying in neutral waters, although restitution was ordered, costs were refused, as the seizure had not been made with any intention to violate neutral territory. In the United States Courts, where a vessel had been captured in consequence of her firing on her subsequent captors under the mistake that they were pirates, the Court refused compensation, observing that no case had been cited to prove that where a capture was in itself justifi

Prize Courts, p. 36.

(z) Vide Story's instances of "probable cause," Also The Leucade, 2 Spinks' Ec. & Ad. Rep. 229. (a) The Twee Gebroeder, p. 313, supra; The Gauntlet (1870), L. R. 4 P. C. 184. But vide also The Actæon, 2 Dods. 52.

able, the subsequent detention for adjudication had ever been punished by damages (a).

In The Glen (b), where a capture was declared to have been made without reasonable cause, costs and damages were awarded. And reprehensible conduct on the part of captors will, where restoration is decreed, involve a similar award (c).

The circumstance that the captured vessel has been lost or destroyed without being brought into a port of the captors will not operate as a stop against the adjudication necessary in order to obtain an award against captors, for proceedings may be instituted notwithstanding (d).

Where property is sold at a loss, and restitution is subsequently decreed, captors' liability will be limited to the sale proceeds (e).

The prize courts will also award damages for all personal torts, not confining the judgment to the actual wrongdoer, but granting a decree, in the case of privateers, against the owners of the vessel (ƒ). And where the captured crew have been grossly ill-treated, a liberal recompense will be adjudged (g). Owners, said the Court, in The Die Fire Damer (gg), ought not to put their vessels in charge of persons capable of outrageous behaviour.

"Whenever the captors are justified in the capture, they are considered as having a bonâ fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty; as from stress of

(a) The Marianna Flora, 11 Wheat. 1.

(b) Blatch. Pr. Ca. 375.

(c) The Anna, p. 312, supra; The Jane Campbell, infra.

(d) Vide p. 320, supra.

(e) The Two Susannahs, 2 Rob. 152.

(f) The Anna Maria, 2 Wheat. 327.

(g) The St. Juan Baptista, 5 Rob. 33; The Die Fire Damer, 5 Rob. 357; The Jane Campbell, Blatch. Pr. Ca. 101.

(gg) 5 Rob. 357.

weather, recapture by the enemy, shipwreck, &c. 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 bonâ fide possessor, and make him a trespasser from the beginning; therefore, if the prize be lost by the misconduct of the prize-master, or for neglecting to take a pilot, or to put on board a proper prize-crew, the Court will decree restitution in value against the captors. But although, in general, irregularity of conduct in captors makes them liable for damages, yet in case of a bona 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" (h).

"In cases of illegal capture, vindictive damages are not usually given, unless where the misconduct has been very gross, and left destitute of all apology. Great indulgence is allowed to errors, and even improprieties of captors, where they do not appear to have acted with malignity and cruelty (i). If a captor destroys a ship of an enemy protected by the licence of his own government, he or his government is responsible for the loss occasioned by such destruction (k); but when the captor acts bonâ fide in pursuance of his rights, in an ignorance, honest and invincible on his part, of a foreign fact not governed by his own domestic law, but dependent on transactions with which he is unavoidably unacquainted till actually communicated to him, he will be protected by the Court" (1).

(h) Story on Prize Courts, p. 36 (with cases cited).

(i) The Lively and Cargo, 1 Gall. 29; The Anne, 3 Wheat. 435; The George, 1 Mason, 24.

(*) The Felicity, 2 Dod. 381; The Actæon, ibid. 52; but see The Ostsee, supra, re liability of Government.

(1) The John, 2 Dod. 339; Maritime Warfare, p. 305.