1806, all fishing vessels engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and stores, were declared to be free from molestation (n).

"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 weather, recapture by the enemy, shipwreck, &c. (o). 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" (p).

An unduly postponed claim for damages in respect of illegal capture is not specifically barred by the Statute of Limitations, but after a great lapse of time the Court will by equity extend to prize causes the principle of that Statute (9). When damages are allowed, in the case of loss of the property, the measure of damages is usually the actual loss sustained. And if after assessment of damages, payment be delayed, interest will be allowed on the whole sum awarded, from date of the assessment (). The person immediately liable for damages in the case of illegal seizure by a public vessel is he who effects the capture, and not his superior in command, such as the admiral or commodore; though the actual captor may have rights over against his superiors within the scope of whose authority he is acting. It is the

(n) 5 Rob. Appendix.

(0) The Betsey, 1 Rob. 93; The Catharine and Anna, 4 Rob. 39; The Caroline, 4 Rob. 256; Del Col v. Arnold, 3 Dall. 333.

(p) Story on Prize Courts, p. 37.

(2) The Mentor, 1 Rob. 179; The Huldah, 3 Rob. 235.

(r) Story's Prize Courts, p. 41.

actual wrong-doer who must be brought before the Court (8). In the case of a capture by privateers the matter stands on a somewhat different footing, as will be set forth under the head Privateering and Letters of Marque (†).

All persons found on board a captured vessel have, as provided by Art. VI. of the Instructions for Commanders of Her Majesty's Ships of War as to the Disposal of Captured Vessels, to be treated as prisoners of war, and they must accordingly be handed over to the authorities charged with the duty of receiving such prisoners. And by Art. III. of the same instructions, when a vessel is captured, bulk must not in ordinary circumstances be broken until judgment has been given in the Court of Admiralty. In case of the capture of a neutral vessel the crew must not in the absence of special reason to the contrary be handcuffed or put in irons (u). Damages will be awarded by a Prize Court against captors acting contrary to this general rule. If the master of a captured vessel have cause to complain of the treatment received at the hands of the captors, the proper course is for him to set forth his complaint in the form of a public instrument of protest, sworn before a notary public in the customary form. Any damages sustained by the ship or cargo in consequence of the mismanagement, neglect, or malfeasance of the captors should in like manner be protested against by the master.

If a belligerent vessel having prisoners on board puts into a neutral port, the prisoners are lawfully under the belligerent's jurisdiction so long as they remain on board ship, and the neutral power has no right of interference; but if once they set foot on land they become free (x).

(8) The Mentor, 1 Rob. 179; The Diligentia, 1 Dod. 404; The Ostsee, p. 325, infra.

(t) Vide pp. 94 and 332, infra.

(u) The St. Juan Baptista, 5 Rob. 33; The Die Fire Damer, 5 Rob. 357. (x) Vide reply of H. M. Government to a complaint by the French Govern

If the ship be condemned, the master's private effects are apparently subject to the same fate (y).

Where on adjudication the property is condemned, the costs of discharging, warehousing, &c., have to be defrayed by the captors. Where it is restored, payment of the charges will be awarded as the Court, having regard to the circumstances, may in its discretion deem proper (≈).

Costs may be awarded to captors, notwithstanding a decree of restitution, if it appear that sufficient grounds existed for the seizure (a).

The precise point or moment at which captured property is deemed to be vested absolutely in the captor has never been universally decided, and different rules exist respecting it. According to the United States laws, when a ship has once been condemned in a competent Court of the captors she becomes thenceforth vested absolutely in the captors; whereas, according to the laws of this country, if the vessel be re-captured from enemy subjects even after condemnation, she is deemed to be re-vested in the original owners, who accordingly become entitled to enter again into possession on paying salvage to the re-captors (b).

The circumstance that the sailing of a vessel took place before the outbreak of hostilities entails, as may be perceived on a consideration of the observations sub Embargo (c), no security against capture, unless this immunity be voluntarily

ment as to a Prussian vessel in the Firth of Forth: State Papers, 61 (1870-1), 1093. Also The Sitka, 1854. "Opinions of the Attorneys-General of the United States: "Tom. 7, p. 123. See also Twiss's Internat. Law (War), p. 454, for a reference to the views (in 1855) of the United States Government, which harmonize with those of H. M. Government.

(y) The Ouachita, Blatch. Pr. Ca. 306.

(-) The Industrie, 5 Rob. 88.

(a) Berens v. Rucker, 1 Black. 313; vide sub Adjudication and Condemnation, p. 316, infra.

(b) Vide sub The Right of Recapture, p. 126, infra.

(e) Tide p. 36, supra.

declared by the nation at war with the power by which such vessel is deemed to be owned. In the war with Russia, in 1854-5, privilege was, by an Order in Council, granted to enemy ships which had sailed for a British port prior to 29th March, 1854. A Russian vessel (d), which had left Antwerp for Havannah in November, 1853, proceeded from Havannah to Matanzas in February, 1854, left Matanzas for Cork on 2nd April, and was seized and carried into Cork as an enemy ship not protected by this Order. Restitution was decreed, the Court holding that the voyage must be deemed to have commenced with the sailing from Havannah in ballast in the month of February, and that the subsequent putting into Matanzas did not alter this fact.

No capture may be effected or attempted in neutral waters, though a capture so made cannot be called in question except by the sovereign whose neutrality has been invaded. It is one of the first duties of belligerents to respect neutral waters (e).

The right to capture enemy goods in neutral vessels calls for separate consideration in its place (ƒ).

The subject of Joint Capture need scarcely be closely considered in these pages. The question may become on occasion highly interesting to rival claimants of captured property, but it is of little concern to the owner of property lawfully seized by others to know on what basis the spoil is to be divided between such captors. Great Britain having, by the Declaration of Paris, renounced the right to commission privateers, British shipowners have no longer the interest in the subject of joint capture which they possessed so long as it was open to them to send their vessels to sea under commission of war. Suffice it, therefore, to say, generally, that in

the case of claim for joint capture the British Courts are mainly guided by the following principles :-If the claim to constructive capture be grounded on the fact that the claimant ship was in sight, it must be established that she was seen both by the captured vessel (whose yielding may be presumed to have been induced by the approach of the claimants) and by the immediate captors. In the absence of some antecedent agreement, a vessel in harbour cannot claim as joint captor merely on the ground that one of her boats was in sight of the parties to the engagement or pending engagement. If the claimant be a privateer, the mere being in sight is not sufficient; some overt act must also be shown in support of the claim for a privateer is under no obligation to fight in all cases, so that the animus capiendi is not necessarily to be assumed in his favour. In ordinary cases revenue cutters cannot claim, their primary duty being to protect the revenue, and not to enter upon active hostilities. Warships forming part of a fleet associated in a common enterprise of capture may be entitled to share though not actually in sight, but the decision must in each case rest upon the particular facts (g). If two vessels engage in joint chase of an enemy ship, and one of them effects the capture out of sight of the other, the capture is, nevertheless, deemed to be joint. Decisions bearing upon these and other relative points will be found reported and discussed in Hazlitt and Roche's valuable "Manual of the Law of Maritime Warfare"; and numerous cases before the Courts appear in Robinson's "Admiralty Reports." Sect. 35 of the Naval Prize Act, 1864, provides that allies of Her Majesty shall be entitled to share in joint captures on such basis as may be from time to time agreed upon between Her Majesty and such ally. And by sect. 36 it is provided that claimants for

(g) Vide The Anglia, Blatch. Pr. Ca. 566.