on a claim for compensation. In cases where proceedings are taken against the property captured no doubt upon this point can be entertained. In the course of the proceedings taken to determine the validity of a capture the parties interested have the opportunity of making good their right to compensation, and if the national tribunal does not give them satisfaction they can apply to the international prize court. If, on the other hand, the action of the belligerent has been confined to the capture it is the law of the belligerent captor which decides whether there are tribunals competent to entertain a demand for compensation; and if so, what are those tribunals? The international court has not, according to the convention of The Hague, any jurisdiction in such a case. From an international point of view the diplomatic channel is the only one available for making good such a claim, whether the cause for complaint is founded on a decision actually delivered or on the absence of any tribunal having jurisdiction to entertain it. The question was raised as to whether it was necessary to draw a distinction between the direct and the indirect losses suffered by vessel or goods. The best course appeared to be to leave the prize court free to estimate the amount of compensation due, which will vary according to the circumstances and can not be laid down in advance in rules going into minute details. For the sake of simplicity mention has only been made of the vessel, but what has been said applies, of course, to cargo captured and afterwards released. Innocent goods on board a vessel which has been captured suffer, in the same way, all the inconvenience which attends the capture of the vessel; but if there was good cause for capturing the vessel, whether the capture has subsequently been held to be valid or not, the owners of the cargo have no right to compensation. It is perhaps useful to indicate certain cases in which the capture of a vessel would be justified, whatever might be the ultimate decision of the prize court. Notably, there is the case where some or all of the ship's papers have been thrown overboard, suppressed, or intentionally destroyed on the initiative of the master or one of the crew or passengers. There is in such a case an element which will justify any suspicion and afford an excuse for capturing the vessel, subject to the master's ability to account for his action before the prize court. Even if the court should accept the explanation given and should not find any reason for condemnation, the parties interested can not hope to recover compensation. An analogous case would be that in which there were found on board two sets of papers, or false or forged papers, if this irregularity were connected with circumstances calculated to contribute to the capture of the vessel. It appeared sufficient that these cases in which there would be a reasonable excuse for the capture should be mentioned in the present report, and should not be made the object of express provisions, since otherwise the mention of these two particular cases might have led to the supposition that they were the only cases in which a capture could be justified. Report of committee which drafted Declaration of London. When a vessel is taken and brought into any of the ports of the contracting parties, if upon examination she be found to be loaded only with merchandizes declared to be free, the owner, or he who has made the prize, shall be bound to pay all costs and damages to the master of the vessel unjustly detained. Treaty of Amity and Commerce concluded between the United States and The judgment [of the Prize Court] states: 2. What damages shall be given, to whom, and by whom, in case: (a) of invalid or unlawful stopping or seizure by the officers of war vessels; (b) of delay in procedure or decision of the case; and (c) of liberation of the vessel and cargo. Institute, 1887, p. 73. Responsibility for loss of vessel. If a prize is lost by the perils of the sea, the fact must be carefully ascertained. In that case no indemnity is due, either for the ship, or for the cargo, provided that if the prize be subsequently annulled the captor is able to prove that the loss would have occurred even without capture. Institute, 1913, p. 199. If the seizure of the ship or of the 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 the goods. Institute, 1913, p. 199. In the case of a captor's using the ship or the cargo after the seizure, he must, if his act is held to have been illegal, pay the interested parties an equitable indemnity, according to the documents drawn. up at the time the vessel or goods were used. Institute, 1913, p. 200. If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful; but if he proceeds to capture the vessels [vessel] as prize, and sends her in for adjudication, and there be no probable cause, he is responsible. It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages. Kent, vol. 1, pp. 165, 166. * * * and damages are not awarded [by a prize court] because the vessel turns out, on such an investigation, to be exempt from condemnation, as they would be in case of private civil proceedings, but only where the capture and sending-in were without probable cause appearing, upon such examination as could reasonably be required of a cruiser at sea, under the circumstances of the case. Note 186, Dana's Wheaton. * * * Probable cause of seizure is, by the general usage of nations and the decisions in admiralty, a sufficient excuse in cases of capture de jure belli, and this question belongs exclusively to the court, which has jurisdiction to restore or condemn. If there be a reasonable suspicion, it is proper to make the capture, and submit the cause for adjudication before the proper tribunal, and, although the court should acquit without the formality of further proof, the captors will be justifiable, by reason of such probable cause; but where the seizure is wholly without excuse, they are liable for costs, and for the damages which ensue from the seizure, and such damages and costs will be decreed to the party injured. The liability of the captor for damages and costs, depends, in general, upon his good faith and intentions; a court will seldom impose damages for a mere error of judgment, unless the irregularity is very gross, and works serious injury to the claimants. They are never responsible for he neglect or error of the captured vessel. Thus, if a vessel, lthough not liable to condemnation, has defective documents on Doard, or does not show proper papers, the captor is not liable for either costs or damages, but, on the contrary, the court will generally allow him costs and expenses, to be paid by the claimants to whom the restitution is made. But, if he unreasonably delay to procure an adjudication, or is otherwise guilty of negligence or good faith, he is liable for costs and damages. Halleck, pp. 743, 744. If, on trial by the prize court, the grounds on which the capture was effected turn out to be good, condemnation will ensue, and by the law of most countries the captors will receive the proceeds of the sale of the captured property in the form of prize money. If the evidence against the vessel is not conclusive, though there are circumstances of just and reasonable suspicion, she will be released, but her owners will have to bear the expense of detention and delay. But if the capture was effected on frivolous and foolish grounds, the parties interested have a right to compensation. Lawrence, p. 471. When vessels are released without trial. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor asserts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's Prize Law lays down the rule: "If, after the detention of a vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her * ** * 29 Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels Bundesrath and Herzog, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial. Oppenheim, vol. 2, p. 551-552. "In all prize cases where claims for indemnity were presented to the Department of State by foreign governments on behalf of their subjects for seizures made by our war vessels [during the war with Spain], the rule adopted was to reject claims for indemnity in cases where the prize court had found probable cause, and to refer to the Court of Claims all claims for indemnity in cases where probable cause may not be found." Mr. Hay, Secretary of State, to Attorney-General, Jan. 5, 1900, Moore's If a Commander in the exercise of these powers detain a Vessel without probable cause, or do an act not sanctioned by International law or otherwise unwarrantable, he will incur the displeasure of Her Majesty's Government, and will also be personally liable for damages. The Commander is likewise responsible in damages for the acts of all under his command, whether he himself is present or absent; and this responsibility is not shifted upon his Superior Officer (as the Commander of the Squadron or of the Fleet), unless such Superior Officer be actually present and coöperating, or has issued express orders for the doing of the act in question. Even although the Vessel and Cargo be condemned as Lawful Prize, the Captors may be deprived by the Prize Court of all interest in the same, if in relation to the Vessel or her Cargo, or any Person on board, they have committed any offence against the Law of Nations, or against the Naval Prize Act, 1864, or against any Act relating to Naval Discipline, or against any order in Council or Royal Proclamation, or any breach of Her Majesty's Instructions relating to Prize, or any act of Disobedience to the Orders of the Lords of the Admiralty, or to the Command of a Superior Officer. Holland, p. 5. What constitute good reasons for capture. If, upon Visit and Search of the Vessel, the Commander has reason to entertain any suspicion, he should give the Master an opportunity of explanation; and if, after such opportunity given, he is satisfied that there is Proper Evidence against her amounting to probable cause for her Detention, he should detain her. What is proper evidence against a vessel amounting to probable cause for her detention. Proper Evidence is such evidence as will be admissible before the Prize Court: viz. (1) facts appearing by inspection, as the character of the Vessel, her Equipment, Cargo, and Crew; (2) the Papers on board of her; and (3) the testimony of her Master and Crew. The Commander should remember that no evidence by any of the Captors in their own behalf will, at all events in the first instance, be admitted before the Prize Court. Evidence against the Vessel amounts to probable cause for her Detention when the circumstances connected with the Vessel and Cargo are such as to afford reasonable ground for belief that the Vessel or Cargo, or both, or part of the Cargo, might prove upon further inquiry to be Lawful Prize; and it is immaterial whether these circumstances arise from the misconduct of the Master or are beyond his control. The Commander should bear in mind that, if the Court should find that the Vessel has been detained without probable cause, then, although there has been nothing intentionally vexatious in his conduct, he will be condemned in costs and damages, even to the extent of making good any losses that have been the result of inevitable accident to the Vessel and Cargo while in his hands. On the other hand, if the Court comes to the conclusion that there was probable cause for the Detention, then, although the Vessel may be ordered to be restored, the Commander will be held to have been in lawful possession of her, and therefore not answerable for casualties. Detention upon second seizure. Sometimes it happens that the Vessel has been previously seized by another of Her Majesty's Cruisers, and allowed to proceed as not being Lawful Prize: in such case the Commander should use special precaution; but if he is nevertheless satisfied that there is probable cause for the Detention of the Vessel, he should detain her. Detention the act of the Commander alone. The Commander of the Cruiser is alone responsible for the Detention of a Vessel, unless the Commander of the Squadron is actually present and coöperating, or himself expressly orders the Detention. The authority therefore for the formal Detention of a Vessel should in all cases proceed from the Commander. But any Officer of inferior rank, who, whilst at a distance from his Commander, falls in with a Vessel, and after Visit and Search, has reason to believe that she is liable to Detention, should hold possession of her till he has communicated with his Commander. Holland, pp. 67-69. Apart from the restoration of property which ought to be returned, or the payment of the equivalent of its value (Articles 28 and 29), a special indemnity may be awarded to the original owner for losses caused by the seizure of the property, when it is recognised that the property was seized without sufficient reason, or that the seizure was an infringement of Agreements concluded (Article 16 and 17). If the property is returned in a damaged condition, an indemnity may be awarded to the owner for his losses, if it is proved that the damage was caused by the fault or neglect of officials whose duty it was to preserve the property. Russian Regulations, 1895, Article 30. * * * The prize court will adjudge as to confiscation or release with or without damages; in case of the release of the prize by the captain himself, as to damages. German Prize Rules, 1909, Article 1. |