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In deciding whether a ship ought to be captured or not, the commander shall
be guided by the nature of the ship, her equipment, her cargo, the ship's papers, the master and crew, and their testimony, &c.
If the commander of the warship decides that the ship should be captured, he shall communicate to the master of the ship the reasons for her capture, and, sending a commissioned officer, with the necessary petty officers and men, cause him to take possession of her. If, on account of bad weather or for other reasons, he cannot dispatch the commissioned officer with the petty officers and men, he shall cause the ship to haul down her flag and direct her course in accordance with the orders of the commander of the warship. Should she not obey his orders he may take steps to meet the emergency.
When the commander of a warship captures a mail steamer, he shall remove from the ship, in their sealed condition, mail bags which he considers harmless, and take steps to dispatch them, at the very first opportunity to their destination.
The commander of the warship shall cause the passengers on board a ship which has been captured, with the exceptions of persons who are contraband of war, and those whom it is necessary to detain as witnesses, to be landed at as convenient a port as possible.
If the commander of the warship has certain knowledge, after he has captured a ship, that the capture was improper, he shall at once release her.
Japanese Regulations, 1904, Articles 65–70. Right of capture does not apply to public vessels.
The right of capture does not apply to neutral public vessels.
Public vessels are the vessels of war as well as those employed in the service of the state and under state control. Vessels which are otherwise the property of the state will be similarly regarded.
The necessary distinctive features of vessels of war are: War flag (together with the pennant, as a rule), commander commissioned by the state whose name appears in the navy list, and military disciplined crew. See articles 2 and 4 and 6 of the VII Convention of the 2d Hague Conference.
German Prize Rules, 1909, Article 2. 94. If the search, after the hearing of the Master, shows such circumstances that the captain believes that the condemnation of the ship may be expected, he will as a rule capture the ship (See 119).
95. The capture will be effected by communicating a protocol to the Master, taking possession of the ship with a prize crew, and hoisting the war flag. If taking possession of the ship and therewith the hoisting of the war flag is not permissible, the ship will be directed to haul down her flag and regulate her speed and course according to the orders of the captain.
The ship does not become a man-of-war by any such flying of the war flag.
96. The captain will report concerning the capture as soon as possible directly to the Chief of Admiral Staff. The report must contain the name of the Master and of the ship, the flag carried at the time of visiting, time, place, and reasons for capture. The prize oflice will receive a copy of the report when the ship is brought in.
97. If proof appears, after the capture has been made, that a ship was wrongly captured, she is to be released without delay, according to 92. The report mentioned in 96 in this case also, with the data concerning the reasons for release, is to be rendered and by the Chief of Admiral Staff transmitted to the prize Court having jurisdiction.
98. If a ship that has been captured by the enemy has been retaken, before confiscation or employment in hostile undertakings by
im, she is to be released if no ground exists from the German standpoint for her capture. Report of the release is to be made directly to the Chief of Admiral Staff.
German Prize Rules, 1909, Articles 94-98.
Rights and duties of the prize officer.
124. The prize officer commands the captured ship and with regard to her has the rights and duties of the Captain of the man-of-war captor. He will take care, before all else, for taking the ship in safe and for the observance of requirements of sections VII and VIII.
125. He provides for continuing the ship's log book, and will him. self keep a journal from the time of coming on board, in which all events concerning the voyage, the ship, the cargo, and the personnel are to be entered.
126. He must apprehend and prevent any attempt of the ship's crew to regain possession of her, unnecessary use of force is to be avoided.
127. He may take goods from the cargo, in the Master's presence, and against a receipt, which the execution of his orders may require.
128. If necessary, the prize officer may transship persons and, as far as he is empowered under 110, parts of the cargo to another vessel; the reasons he must enter in the log book. A transshipment is always warranted when it is done in the interest of the safety of persons or preservation of the cargo.
129. If it is not possible to take the ship into the port ordered, he will seek another into which the prize may be taken (sec. 111). If this also is not possible, he will proceed to destroy the ship, under the provisions of No. 112 to 118, as soon as the safe salving of the persons, papers, and articles of evidence on board the ship has been accomplished. The requirements of No. 123 are to be observed.
130. Directly after arrival in a port, the prize officer will telegraph for further instructions to the Chief of Admiral Staff.
131. If the port reached is German or belongs to an allied or a neutral power which allows generally the bringing in of prizes, the prize officer will deliver the prize there. The delivery in a German Port will be made to the competent port authorities, otherwise to the consular representative of the German Empire or of an allied power with simultaneous delivery of the papers, reports, and other means of evidence, for further transmission to the prize office. At the same time the persons who under 102 are to be let go free are to be released, so far as they have not to be retained as witnesses.
German Prize Rules, 1909, Articles 124–131. 106. The captain must immediately upon the capture of a ship or the seizure of goods take the measures which are necessary for their security and for the prize court proceedings.
107. If circumstances require a quick separation of the man-of-war from the captured ship, the officer commanding the prize-crew (prize officer) is to be entrusted with these measures.
108. The captain must immediately take possession of the ship's papers, that is, all papers which are found on board and may serve as evidence before the prize court.
The papers will be arranged in the same condition in which they were found, and will be numbered: a list of them will be made and signed by the captain and the Master: papers and list will be sealed with the seal of the man-of-war and of the Master and, together with a statement of the condition of the ship and cargo and a copy of the report required by 96, will be given to the prize officer for safe keeping and delivered later to the prize office.
If the Master refuses his signature or his seal, this is to be noted at the end of the list.
If papers are found later, or if any have been destroyed or thrown overboard in the presence of witnesses, statements in the matter are. to be drawn up with the witnesses, and submitted to the prize office.
109. Concerning the money and valuables found on board, a list, confirmed in writing, according to 108, of which the Master will retain a copy, will be drawn up and later delivered to the prize office.
The Captain is to see that proper steps are taken that no one may appropriate to his own use anything from the cargo, the ship's equipage, or, the ship's stores. The ship, equipage, stores, and cargo, as well as the personnel and material auxiliary means, are to be handled and managed with the greatest care.
110. H. M. ships and allied men-of-war and captured prizes may in case of necessity, fill their needs from the cargo, equipage, and supplies of captured hostile ships, giving receipts therefor, so far as the articles are not proved unquestionably to be neutral goods.
German Prize Rules, 1909, Articles 106–110.
LIENS UPON A VESSEL, AS AFFECTED BY CAPTURE.
A mortgage or lien on a ship sailing under the enemy's flag, whether it arises by contract or by law as a factor's lien-unless it is a general law of the mercantile world, as that which gives the lien of freight—is treated as a part interest in the ship and is not saved from the condemnation.
Westlake, vol. 2, p. 170. The “Tabago,” 5 C. Rob., 218.-In this case, a claim was made by a British merchant on account of a bottomry bond executed to him in time of peace on a French vessel.
Held that while a captor takes cum onere of visible interests, he is not subject to secret liens on the vessel, among which may be classed bottomry bonds.
See also The Hampton, 5 Wall., 372, in which it was held that a mortgage
on a captured vessel is a lien subject to be overriden by the capture; The Battle, 6 Wall., 498, in which claims against the captured vessel for supplies, materials and work and labor were dismissed; The Rossia, W. H. Gill's claim, Russian and Japanese Prize Cases, vol. 2, p. 43, in which a claim arising out of the payment of expenses necessary for the continuance of the voyage was dismissed; The Nigretia, 2 id., 208; The Frances, 8 Cranch, 418; The Carlos F. Roses, 177 U. S., 655.
The “Marianna," 6 C. Rob., 24.—This was the case of a vessel, originally American, but sold to a Spaniard and sailing under the Spanish flag, when seized. An American citizen put in a claim by virtue of a lien on the vessel for the payment of the balance of the purchase money out of the freight.
Held that where as in this case the vessel must be considered to have been legally transferred, and where she flies the flag of the country of the purchaser, that is sufficient to warrant her condemnation. Captors are supposed to lay hands on gross tangible property on which there are many just claims outstanding which can have no operation on her.
The “Aina,” I Spinks, A. and E. Rep., 313.—In this case, a claim was made on behalf of a neutral on the ground that he was the mortgagor of a one-third interest in the vessel.
The court said that it knew of no case in which the mortgage-claim of an alien was allowed to defeat the captor's claims, though possibly it might operate to produce some mitigation of damages.
COMPENSATION OF PERSONS INTERESTED IN VESSEL OR GOODS CAPTURED WITHOUT GOOD
If the capture of a vessel or of goods is not upheld by the
prize court, or if the prize is released without any judgment being given, the parties interested have the right to compensation, unless there were good reasons for capturing the vessel or goods.-Declaration of London, Article 64.
A cruiser has captured a neutral vessel on the ground, for example, of carriage of contraband or breach of blockade. The prize court releases the vessel, declaring the capture to be void. This decision alone is evidently not enough to indemnify the parties interested for the loss incurred in consequence of the capture, and this loss may have been considerable, since the vessel has been during a period, which may often be a very long one, prevented from engaging in her ordinary trade. May these parties claim to be compensated for this injury? Reason requires that the affirmative answer should be given, if the injury has been undeserved—that is to say, if the capture was not brought about by some fault of the parties. It may, indeed, happen that there was good reason for the capture, because the master of the vessel searched did not produce evidence which ought in the ordinary course to have been available and which was only furnished at a later stage. In such a case it would be unjust that compensation should be awarded. On the other hand, if the cruiser has really been at fault, if the vessel has been captured when there were not good reasons for doing so, it is just that compensation should be granted.
It may also happen that a vessel which has been captured and taken into a port is released by the action of the executive without the intervention of a prize court. The existing practice, under such circumstances, is not uniform. In some countries the prize court has no jurisdiction, unless there is a question of validating a capture, and can not adjudicate on a claim for compensation based upon the ground that the capture would have been held unjustifiable; in other countries the prize court would have jurisdiction to entertain a claim of this kind. On this point, therefore, there is a difference which is not altogether equitable, and it is desirable to lay down a rule which will produce the same result in all countries. It is reasonable that every capture effected without good reasons should give to the parties interested a right to compensation without its being necessary to draw any distinction between the cases in which the capture has or has not been followed by a decision of a prize court; and this argument is all the more forcible when the capture may have so little justification that the vessel is released by the action of the executive. A provision in general terms has therefore been adopted, which is capable of covering all cases of capture.
It should be observed that in the text no reference is made to the question whether the national tribunals are competent to adjudicate 55565—18 -36