the wind (e). Where two vessels were in sight, and the actual captor, The Rover, exchanged signals with The Beagle, under command of a senior officer in chase of the same vessel, and was by him directed to go in chase of the other, which was captured by The Rover out of sight of The Beagle, which continued in chase of the other vessel; it was held, that the commander of The Rover, being under the orders of his superior engaged in the common enterprize for the purpose of capturing both vessels, The Beagle was entitled to share (ƒ). If two vessels are associated for one common purpose, the continuance of chase is sufficient to give the right of joint capture. Sight under such circumstances is by no means necessary, because, exclusive of that, there exists that which is of the very essence of the claim, encouragement to the friend and intimidation to the enemy. Where two vessels join in chase under signal from a superior officer, they are to be considered as consorts, for the particular business in which they are acting under orders so given, and for the purpose of any capture arising out of it (g). Where a squadron was blockading certain ships of war in the bay of Naples, and a summons to surrender was sent in, it was held that the blockade commenced, not when the summons was sent in, but from the moment when the ships were assembled long before to stop the egress of vessels, and that a ship forming part of the squadron, and present after they were so assembled, was entitled to share, though she was afterwards detached, and did not return till after the surrender (h). So where a ship was under the orders of the commander in chief of a force, by part of which an attack was made on Savona, and was lying in sight of the scene of action, and com (e) The Guillaume Tell, Edw. 6. (h) The Naples Grant, 2 Dod. 273, municating information to the commander in chief by signal; it was held, that she was entitled to share (i). So, where soldiers were landed from the fleet to cut off the communication between the enemy's fleet and its own coast; that was held to be a case of preconcert and co-operation of the most effectual kind, and though possession was taken by the fleet, the military forces were held entitled to share (k). By the practice of the navy, prize interests, acquired by a prize master on board a captured vessel, enure to the benefit of the whole ship's company. The rule has not been recognised or established by decrees of the Court of Admiralty, but has prevailed, without judicial authority, on the general notion which has been entertained of the intrinsic equity of such a communication of interest (7). So a King's ship, though not in sight, is entitled to share as joint captor in prizes made by a tender attached to her by orders of the Admiralty, and acting under her command (m). But it is otherwise where the tender is not so attached (n). Where a prize was made by part of the fleet stationed off Cadiz not to prevent the egress of merchant vessels, but to watch the enemy's fleet preparing for sea; it was held that the rest of the fleet were not entitled to share, when the prize was condemned as enemy's property, and the capture did not involve any question of breach of blockade, and, consequently, was not within the purpose for which they were associated (o). When a ship was captured at a distance of twenty leagues from Malta by ships forming part of a squadron stationed to watch the harbour of La Vallette, which were sent to look out for her, while the rest kept their station : it was held that the rest of the squadron were not entitled to (i) Genoa and Savona, 2 Dod. 88. (k) The Hoogskarpe, Lords, 1786, cited per Cur. 2 Rob. 76. (1) The Frederick and Maryanne, 6 Rob. 213. (m) The Anna Maria, 3 Rob. 211. (n) The Charlotte, 5 Rob. 280. (0) The Nordstern, Lords, 1809, cited per Cur. Edw. 126. share (p). When two vessels that formed part of a squadron employed to capture an island were separated, one by stress of weather and the other in chase of a privateer, they were not entitled to share in a capture of ships made during their absence (7). Transports associated with fleets are not entitled to share, unless their employment has been made immediately applicable to the purposes of direct military operations, in which they have taken part. The same rule applies to commissioned vessels not being commissioned against the particular enemy who is the object of the expedition, although he has been intimidated by their appearance (r). So where a ship of war conveying reinforcements to Lord William Bentinck at Leghorn, heard the firing of a joint attack made by Lord William Bentinck and the fleet upon Genoa, and returned from Leghorn and was in sight of Genoa at the time of the capitulation: but the captors were not aware of the ship's presence, nor the ship of the force employed, or of the object of attack, she was held not entitled to share (s). So it was held that a ship despatched with a view to a contingent expedition to the coast of South America, and arriving at Buenos Ayres after the surrender of the place, was not entitled to share. It is a fixed rule that no services antecedent or subsequent, unless the ship is employed in the identical service of the expedition, will impart a prize interest (†). Where vessels were captured by ships forming part of Lord Keith's fleet employed in the blockade of Genoa, but detached to co-operate with an allied army which had driven the enemy from a battery by which the vessels were protected: it was held, first, that the fleet was not entitled to share; secondly, (p) The Genereux, Lords, 1803, cited per Cur. Edw. 16. (r) The Cape of Good Hope, 2 Rob. 274. that this was not a capture by a conjunct expedition within the meaning of the Prize Act, which applies only to joint expeditions of British land and sea forces against some fortress upon the land, which is accessible by land on the one side and by sea on the other; thirdly, that an agreement between Lord Keith and the commander-in-chief of the allied army for the division of all booty, would not comprise captures at sea (u). In the case of a claim on the part of the the part of the army to share in a capture made by the fleet, the burthen of proof lies upon them to shew, that there was an actual cooperation upon their part assisting to produce the surrender. Between land and sea forces acting independently of each other, no privity of purpose can be presumed, and therefore to establish a claim of joint capture between them, there must be a contribution of actual asssistance, and the mere presence, or being in sight, will not be sufficient. Where there is no preconcert, it must not be a slight service, but some very material service that will be deemed necessary to entitle an army to the benefit of joint capture. When there is preconcert it is not of so much consequence that the service should be material, because then each party performs the service that was previously assigned to him. The evidence by which such a claim is supported must be clear and consistent, because it lies upon those setting up a claim of joint capture to make out their case, the presumption is on the side of the actual captor. In the case of The Dordrecht, a victualling party from a Dutch squadron in Saldanha Bay, the Cape of Good Hope being in possession of the British army, was compelled, by advanced parties of the army, to abandon a supply of cattle which they were preparing to remove from the coast. The whole army was in sight of (u) The Stella del Norte, 5 Rob. 349. the squadron some hours before the arrival of the English fleet, and shots were exchanged between the advanced corps and a Dutch frigate. In a few hours the English fleet made its appearance, the Dutch squadron being then so situated that the army could neither take nor annoy them. When the fleet arrived, the squadron had no chance of escape, and an engagement was hopeless in regard to the superiority of the English fleet, and the mutinous disposition of the Dutch crews. It was said that the presence of the army prevented them from destroying their ships, and there was some evidence to shew that the English general had given notice to the commanderin-chief of the Dutch squadron, that if they attempted to destroy their ships no quarter would be given to the crews escaping on shore. It was held, that the principle of terror to support this claim must be that of terror operating, not mediately and with remote effect, but directly and immediately influencing the capture; and that, if such principle of denunciation were sufficient, a crowd of inhabitants on the coast would be entitled, if they had threatened to knock those on the head who attempted to escape on shore after destroying their ships. Under all the circumstances of the case the court pronounced against the claim of the army (v). Thirdly, as to head-money or bounty granted on capture of the enemy's armed ships or privateers, the old provision has been substantially re-enacted in the eleventh section of the Prize Act (Russia), 1854. The subject of head-money has undergone some variations. Originally it was the reward of actual combat only. In later times the necessity of actual combat has been dispensed with, and capture itself, whether produced by actual combat or not, has been held a sufficient foundation for the claim. But there is no case, when head-money has been granted, where the act of capture has not been consummated. In the case of The (v) The Dordrecht, 2 Rob. 55. |