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the United States; and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilized countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property.
“ But there are cases where from existing circumstances the captor may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship cannot, 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."
See also Fay 1°. Montgomery, Curtis, 266. The “Polka," Spinks Prize Cases, 57.-In this case the court condemned prizes which had been taken into a neutral port and left there, because of their unsea worthiness, and with the consent of the neutral government.
The court said: “I wish it, moreover to be expressly understood that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of a prize while lying in a neutral port. The rule is that the prize shall be brought into a port belonging to the captor's country." The “Leucade," Spinks Prize cases, 217.—The court said:
when a vessel under neutral colors is detained, it has the right to be brought to adjudication; according to the regular course of proceeding in the Prize Court, and it is the very first duty of the captor to bring it in, if it be practicable.”
“ From the performance of the duty the captor can be exonerated only by showing that he was a bona fide possessor and that it was impossible for him to discharge it. No excuse for him as to inconvenience or difficulty can be admitted as between captor and claimants. If the ship be lost, that fact alone is no answer; a captor must show a valid cause for the detention as well as the loss. If the ship be destroyed for reasons of policy alone, as to maintain a blockade or otherwise, the claimant is entitled to costs and damages. The general rule, therefore is that if a ship under neutral colors be not brought to a competent Court for adjudication, the claimants are as against the captor entitled to costs and damages. Indeed if the captor doubt his power to bring in a vessel to adjudication, it is his . duty under ordinary circumstances to release her.
The “Knight Commander,” Russian and Japanese Prize Cases, vol. 1, p. 54.—This was the case of a vessel captured on a voyage from New York to Japan, carrying a cargo of material for railways, bridges, and tramways, and other goods. No manifest or bills of lading were produced and there was evidence on board that part of the cargo was to be carried to Chemulpo, and therefore destined for the use of the Japanese army, and that the master was aware that the ship was liable to capture. She was destroyed on the ground that there was not sufficient coal to take her to a Russian port.
Held by the Vladivostock Court and by the Supreme Prize Court that more than half the cargo was contraband and that the ship was
consequently liable to condemnation and that the question of the regularity of the sinking of a captured ship was a matter only for the superior officer who gave the order for the sinking and not for the Prize Court.
When destruction justified.
The "Oldhamia," Russian and Japanese Prize Cases, vol.1, p. 145.This vessel, captured while carrying to Japan a cargo of kerosene, held to be contraband, struck on a rock, during a fog, while being taken to a port of the captor. It was found impossible to float the vessel with the resources at hand and taking into consideration the distance to any Russian port from which assistance could be obtained, and the nearness to Japan, which rendered it likely that the Japanese would discover the prize, the Russian officer in charge, after waiting two days, landed the crew and provisions and destroyed the vessel.
Held by the Russian Supreme Court that the destruction was justifiable.
See also The Ikhona, id. 226, in which the Supreme Prize Court apparently justified the destruction of the vessel, because “ there was no Russian or neutral port” to which she could be taken. In this case, the Court rejected, as contrary to Russian and International Law, the contention of the claimants “that the destruction of a vessel of neutral nationality is not generally permissible." An insurer's responsibility continues until the prize court has adjudicated that a vessel is lawful prize.
Decision of December 18, 1907, in re Nederlandsche Lloyd and Company (defendant) against C. A. (plaintiff), 67 Imperial Court Decisions, (German) 251.
The court said: “Seizure merely forms the basis for the examination by the prize court which can end only with the release of the ship or its adjudication as a lawful prize. The latter means total loss; seizure is only a provisional act and maintains the responsibility of the insurer for maritime danger."
CONSEQUENCES OF FAILURE TO JUSTIFY DESTRUCTION OF NEUTRAL VESSEL.
A captor who has destroyed a neutral vessel must, prior to
any decision respecting the validity of the prize, establish that he only acted in the face of an exceptional necessity of the nature contemplated in Article 49. If he fails to do this, he must compensate the parties interested and no examination shall be made of the question whether the
capture was valid or not. If the capture of a neutral vessel is subsequently held to be
invalid, though the act of destruction has been held to have been justifiable, the captor must pay compensation to the parties interested, in place of the restitution to
which they would have been entitled. If neutral goods not liable to condemnation have been de
stroyed with the vessel, the owner of such goods is entitled to compensation.-Declaration of London, Articles 51, 52 and 53.
Comment on Article 51.
This claim gives a guaranty against the arbitrary destruction of prizes by throwing a real responsibility upon the captor who has carried out the destruction. The result is that before any decision is given respecting the validity of the prize, the captor must prove that the situation he was in was really one which fell under the head of the exceptional cases contemplated. This must be proved in proceedings to which the neutral is a party, and if the latter is not satisfied with the decision of the national prize court he may take his case to the international court. Proof to the above effect is, therefore, a condition precedent which the captor must fulfill. If he fails to do nis, he must compensate the parties interested in the vessel and the cargo, and the question whether the capture was valid or not will not be gone into. In this way a real sanction is provided in respect of the obligation not to destroy a prize except in particular cases, the sanction taking the form of a fine inflicted on the captor. If, on the other hand, this proof is given, the prize procedure follows the usual course; if the prize is declared valid, no compensation is due; if it is declared void, the parties interested have a right to be compensated. Resort to the international court can only be made after the decision of the prize court has been given on the whole matter, and not immediately after the preliminary question has been decided. Comment on Articles 52 and 53.
Supposing a vessel which has been destroyed carried neutral goods not liable to condemnation: the owner of such goods has, in every case, a right to compensation; that is, without there being occasion
to distinguish between cases where the destruction was or was not justified. This is equitable and a further guaranty against arbitrary destruction.
Report of committee which crafted Declaration of London. According to English decisions, the destruction of neutral vessels taken as prizes, can be justified only by the most cogent reasons of public service, and if such a vessel is burnt wantonly, or under a plea of necessity, the captor or his government is responsible.
Woolsey, p. 242. 114. Before the captain decides to destroy a ship he will consider whether the injury thereby done to the enemy will outweigh the damages that will have to be paid for the simultaneous destruction of the non-confiscable part of the cargo (see 18, 42, 56 and 80).
115. If a neutral ship be destroyed when, according to the decision of the prize court, the special circumstances named under 113 b, did not exist, the owners of ship and cargo—whether these be confiscable or not-have a claim for damages. If the circumstances in question did exist, but the destroyed ship or neutral goods be shown not confiscable, the respective owners have also a claim for damages.
116. Before the destruction, all persons on board, if possible with their goods and chattels, to be placed in safety, and all the ship: papers and other articles of evidence which in the opinion of the interested parties are of value for the judgment of the prize court are to be taken over by the Captain.
117. If circumstances permit the salvage of parts of the cargo or equipment, their choice is to be determined first by the requirements of the man-of-war; second, with regard to the damages to be paid (see 114, 115).
German Prize Rules, 1909, Articles 114-117. In every case of destruction of ships or goods, there are to be sent to the Chief of Admiral Staff
' as soon and as safely as possible, for transmission to the prize court having jurisdiction
(a) the papers and other articles or evidence,
(b) a statement of the destruction, the reasons therefor, and all attendant circumstances.
The Chief of Admiral Staff is besides to be informed as soon as possible of the destruction of a neutral ship, by a brief telegraphic report direct of the principal data.
German Prize Rules, 1909, Article 123. I remind you that a captor who has destroyed a neutral vessel must, as a condition precedent to any decision iipon the validity of the capture, establish in fact that he only acted in the face of exceptional necessity in the sense of paragraph 157.
French Naval Instructions, 1912, sec. 159.
Articles 51, 52 and 53, Declaration of London, are substantially identical with sections 32, 33 and 34 respectively. Austro-Hungarian Manual, 1913.
The "Acteon," 2 Dod. 48.-In this case the British captor claimed that he could not spare a prize crew and so destroyed the ressel.
Held that he was responsible in damages to the owner, even though he acted from a sense of public duty, and that he must look to his own government for indemnification.
The "Felicity," ? Dod., 380.-In this case the court stated the “ general rule of justice” as prescribing “ that, if a neutral ship, or protected ship, is destroyed by a captor, either wantonly, or under an alleged necessity, in which she herself was not directly involved. the captor or his government is answerable for the spoliation.”
What constitute good reasons for capture.
The “Allanton," Russian and Japanese Prize C'asex, rol. 1, p. 1.The Russian Supreme Court held that the following constituted good reasons for the capture of the ship, although ship and cargo were found not liable to condemnation:
1. That the vessel did not stop at the first summons of the Russian Cruiser, but only after two blank shots had been fired.
2. That the official log-book was not kept in proper form.
3. That the cargo was shipped at an enemy port, and that a Japanese was on board who could not establish his identity.
À. That the steamer adopted a course seldom chosen by ship captains, and passed close to the enemy ports and enemy fleet.
5. That on a previous occasion the steamer delivered contraband at an enemy port.
The “ knight ('ommander," Russian and Japanese Prize ('ases, vol. 2, p. 54.-In this case, in which the captured vessel was destroyed, the Prize ('ourt awarded compensation to the owners of the noncontraband cargo.
The “Thea," Russian and Japanese Prize Cases, vol. 1, p. 96.-In this case the captured vessel was destroyed and the capture was subsequently held to be invalid. Compensation was paid for vessel and innocent cargo. See also The Tetarto8, Russian and Japanese Prize Cases, vol. 1, p. 166 ;
The St. Kilda, id., p. 188; The Ikhona, id., p. 226; and the Prinsesse