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If the capture of ships and goods is not upheld by the prize court, or if they are released before prize court proceedings are instituted, the parties interested have claim for damages, unless there were sufficient grounds for seizure (see 13 (c) and 14 (c).)

The latter is always the case when any person found on board the ship has destroyed or concealed ships papers, or when two sets, false, or falsified ships papers are found on board, so far as the said irregularities have connection with circumstances of weight in deciding between the seizure or release of the ship.

German Prize Rules, 1909, Article 8. If the foregoing right be exercised when, in the judgment of the prize court the special circumstances in question did not exist, the owners of the goods always have a claim for damages. The same holds when the seized goods are shown to be nonconfiscable.

German Prize Rules, 1909, Article 121.

Article 64, Declaration of London, is substantially identical with section 119, Austro-Hungarian Manual, 1913.

The "Mentor," 1 C. Rob., 179.- In this case a suit was brought against the Admiral of the station for damages on account of claimed wrongful destruction of a vessel by two ships of his squadron.

The suit was dismissed as it was held that the Admiral was not privy to the fact, and it was said: “ The actual wrong-loer is the man to answer in judgment.' Right of compensation extends to freight.

Der Vohr." 4. Rob., 314.- This was the case of a neutral vessel, which in being brought in by a British cruiser to have her cargo examined was lost by the negligence of the prize master. In a former suit a decree had been issued that the value of the ship be restored to the neutral but the cargo had been condemned for further proof. In this case the question was whether the claimant could recover for freight.

Held that since the captor took cum onere, where, as in this case, the neutral had not been guilty of any improper conduct, the captor must answer for the freight as much as for the ship.

See also The Bremen Flugge, 4 C. Rob., 90; The Fortuna, id., 278.

What constitute good reasons for capturing.

Del Col 1. Arnold, 3 Dall., 3.3.3.- In this case it was held that if a vessel has a Spanish register, and sails under Spanish colors, and has on board accounts describing her as Spanish property, there is probable cause for seizing her as belonging to Spanish subjects.

Maley 1. Shattuck, 3 Cranch, 458.—This was a case arising from the capture by a United States warship, of a Danish vessel, suspected of being an American vessel engaged in violating the nonintercourse act passed against France. The owners sued the captain of the warship for wrongful seizure and judgment was recovered, which was paid by the United States. Loche v.

United States, r Cranch, 339.-In this case Chief Justice Marshall said: “The term “probable cause, according to its usual acceptation, means less than evidence which would justify con

demnation; und in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion.”

The Thompson," 3 Wall., 155.-In this case, in which the District ('ourt for New York restored the vessel, the Supreme Court affirmed a decree of the District Court denying damages or costs, on the ground that there was “ probable cause" for the seizure, and stated that " probable cause " exists where there are circumstances sufficient to warrant suspicion, even though not sufficient to warrant condemnation.

See also The Dashing Wave, 5 Wall., 170; The Amiable Nancy, 3 Wheaton,

546; Talbot v. Three Brigs, 1 Dall., 95. The Ostsee," Spinks Prize Cases, 174.-In this case it was held that a neutral vessel captured for breach of a blockade when, in fact. no blockade existed is entitled to costs and damages against the captors.

The court said that condemnation in costs and damages is an extreme measure and should be adopted only when justice imperatively demands it; that to entitle claimants to such costs and damages it is not necessary to prove vexatious conduct on the part of the captor, nor will an honest mistake on the part of the captor relieve him from liability, not even if such mistake arises from the proceedling of his own Government, but in that event he should be indemnified by his Government. Restitution, unless judicially recorded, not bar to second seizure.

The Odessa," Spinks Prize ('uses, 208.—In this case the vessel was seized upon her arrival in a British port, was immediately released and was seized again, after remaining in the port six months.

Held that the restitution not having been judicially recorded, the seizors were at liberty to make a second seizure, but at the peril of costs and damages.

See, to the same effect The Hlaubet, 2 C. Rob., 174. The Leucade," Spinks Prize ('ases, p. 217.-In this case an Ionian vessel had been seized by an English captor on the ground of illegal trade with Russia. It was held, however, that the trade was legal and the vessel was released, and the owners made a claim for restitution and costs. The claim was upheld.

In the case of The Science, decided by the British and American Claims Commission of 1871, British claimants against the United States were awarded damages as compensation for a capture not upheld by the Courts. Many other claims based on similar grounds were denied by the Commission presumably on the ground that there were good reasons for the captures.

See Hale's Report of the Commission. The Nostra Señora de Regla," 108 U. S., 92.—The court said: “ The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the Court may, in case of restitution, decree demurrage against him as damages.

See also Slocum 1. Millberry. ? Wbeaton, 1; The Apollon, 9 Wheaton, 377;

The Lirely, 1 Gall., 315; The ('orier Jaratino, 1 C. Rob., 287.

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Hooper, Admr., v. U. S., 22 Ct. Cl., 408.—The court said: “The distinction must not be forgotten between a legal and justifiable seizure and an illegal and unjustifiable condemnation. The seizure of a vessel may be successfully defended upon grounds which would not support a subsequent condemnation and prize courts deny damages when there was probable cause for the seizure, and are often justified in awarding to the captors their costs and expenses; even when the vessel and cargo are decided not good prize and returned to their owners * The burden of proof in prize proceeding is on the seized vessel.

* which means no more than that she must explain away suspicious circumstances."

See also Jecker v. Montgomery, 13 How., 498; Murray 1. The Charming

Betsey, 2 Cranch, 64. Responsibility for loss of vessel.

In the ship Tom, 29 Ct. Cl. 68, it was held that a belligerent, seizing a neutral vessel upon mere suspicion, is responsible for the vessel, and is excused for her loss only when it is caused by unavoidable casualty.

In The "Caroline Wilmans," 27 Ct. Cl., it was held that captors are not liable for loss, without their fault, of a vessel seized and held as contraband of war.

The Vancy," 37 C't. ('l., 401.- In this case it was held that where the illegality of a seizure is shown, the owners are entitled to indemnity.

The Paquete "Habana," 175 U, S. 677.-- In this case the court decreed that the proceeds of the vessel and cargo should be restored to the claimants with compensatory and not punitive damages and costs.

See also The Paquete Habana, 189 C. S., 453, in which the court ordered

that under the circumstances of the case, the decree should be entered

against the United States and not against the captors individually. What constitute “ good reasons for capture.

The "Saxon Prince," Russian and Japanese Prize Cases, vol. 2, p. 312.-In this case the vessel was carrying railway material to Muroran. The bill of lading was made out for Shanghai and the clearance certificate from the British Consulate at that port stated that the ship was in ballast. On being summoned by a Japanese war-ship, she failed to stop until fired upon.

Held that in view of the above circumstances the capture was lawful, although the vessel was released.

DIPLOMATIC AGENTS OF NEUTRAL POWERS TO HOSTILE GOVERNMENT, EFFECT UPON OF

MILITARY OCCUPATION.

The functions of Ambassadors, Ministers, or other diplomatic

agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government; but the conquering or occupying power usually recognizes them as temporarily accredited to itself.-Lieber, Section 9.

On the other hand, if a diplomatic agent accredited to a country which is at war with another is found by the forces of the latter upon the territory of its enemy, he is conceded all the rights of inviolability which can come into existence as against a state having only military jurisdiction. Whether his privileges extend further, and if so how much further, must probably be regarded as unsettled. The point has not been considered by jurists, and until lately, whether by accident or through the courtesy of belligerents, it has not presented itself in the form of a practical question. During the siege of Paris

. however it was partially raised by the conduct of the German allthorities with reference to the correspondence of diplomatic representatives shut up in the besieged city. On the minister of the United States being refused leave to send a messenger with a bag of despatches to London, except upon condition that the contents of the bag should be unsealed, Mr. Fish directed the American minister at Berlin to protest against the act of the German commanders, and argued in a note, in which the subject was examined, that the right of legation, that is to say the right of a state to send diplomatic agents to any country with which it wishes to keep up amicable relations, is amply recognised by international law, that a right of correspondence between the government and its agent is necessarily attendant upon the right of legation, that such correspondence is necessarily confidential in its nature, that the right of maintaining it would be nullified by a right of inspection on the part of a third power, and finally that there is no trace of any special usage authorising a belligerent to place diplomatic agents in a besieged town on the same footing as ordinary residents by severing their communication with their own governments.

Looking at the question from the point of view of strict legal right, it is not altogether clear that any good reason can be assigned for giving the interests of a state accrediting an agent priority over those of a belligerent. It is no doubt true that the right of legation is fully established. But the right of legation, primarily at least, is only a right as between the states sending and receiving envoys; in other words, it only secures to each of two states having relations with each other the opportunity of diplomatic intercourse with the other. Is there any sufficient reason for enlarging it to embrace a power of compelling third states to treat countries sending envoys as exercising a right which has priority over their own belligerent

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rights? Even in time of peace it has been seen that an ambassador can only claim his complete diplomatic immunities in the state to which he is accredited. His privileges in their full extent are dependent on the fact that he has business to transact with the power by whom the privileges are accorded. Wholly apart therefore from any question as to the effect of a conflict between those privileges and urgent interests of a belligerent, there is no presumption in favour of the existence of an obligation on the part of the latter to grant more than personal inviolability. And if the existence of a conflict can be alleged, the case against the priority of ambassadorial rights over those of a belligerent becomes stronger. The rules of war dealing with matters in which such conflict occurs certainly do not presuppose that the rights of neutrals are to be preferred to those of belligerents; and the government of the United States itself, while in the very act of protesting against the right of communication between a state and its agents being subordinated to belligerent rights, admitted that 'evident military necessity' would justify a belligerent in overriding it. On the whole it seems difficult, in the absence of a special custom, to deny to belligerents the bare right of restricting the privileges of a minister, not accredited to them, within such limits as may be convenient to themselves, provided that his inviolability remains intact.

The question however assumes a different aspect if it is looked at from the point of view of the courtesy which a state may reasonably be expected to show to a friendly power. Diplomatic relations are a part of ordinary international life; there is no reason for supposing that their maintenance is inconsistent with amity towards the invading government; there is on the other hand every reason to suppose that their interruption may be productive of extreme inconvenience to its friend. To withhold any privileges which facilitate those relations, in the absence of suspicion of bad faith or of grave military reasons, is not merely to be commonly discourteous, it is to be ready to injure or imperil the serious interests of a friend without the existence of reasonable probability that any important interests of the belligerent will be remotely touched.

Hall, pp. 325-327.

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