A mere attempt to escape before any possession has been assumed by the captor, does not draw with it the consequence of condemnation (7). And if, as in The Pennsylvania (m), the captors of a neutral vessel, without putting a prize crew on board, content themselves with ordering her commander to carry the vessel into port for adjudication, without causing him to enter into a binding agreement to so proceed, and the neutral vessel, in consequence, makes her escape, such an escape, if the vessel be subsequently captured, will not be regarded as a rescue, and so involving confiscation.

"If the crew of a captured vessel, or prisoners placed on board a vessel in order to be carried to port, rise and overpower those in command of the ship and carry her into a neutral port, the neutral power cannot be required to render up the vessel to those who have thus been deprived of their right over her (n). It is the duty of the captors to protect their own interests, and if they fail to efficiently do so they cannot claim the interposition of neutrals to assist them" (o). An interesting illustration of this principle occurred during the civil war in America in 1862. A British vessel, The Emily St. Pierre, having been seized by a Federal cruiser for an alleged attempt to run the blockade, her crew, all but three men, were taken out of her and a prize crew of fifteen men were put on board with instructions to take the prize to Philadelphia. On the voyage the three prisoners-the master, cook, and steward, who were to have given evidence before the prize court-overpowered and secured their captors, and with the assistance of three or four consenting members of the prize crew, managed to bring the vessel to

(2) The San Juan Battista, 5 Rob. 33.

(m) 1 Act. 33.

(n) Reid v. The Vere, Bee's Rep. 66.

(0) Opinions of the Attorneys-General of the United States, Vol. III. p. 327; L'Invincible, 1 Wheat. 256.

Liverpool. Lord Russell declined to restore the vessel to her captors, as demanded by Mr. Adams on behalf of the United States, declaring that such a rescue, however punishable by the law of nations, was no offence against the municipal laws of Great Britain (0).

The penalty of confiscation is applied to both ship and cargo without distinction, the master being deemed to have acted as agent for the cargo (p). This is so, at least, in the case of neutral vessels and their cargoes; but not so as regards neutral property on an enemy vessel. In this case the master is guilty of no breach of neutral obligation in endeavouring to escape, and his action is not, therefore, to prejudice the cargo (7). Though if the cargo owners be found to have connived at the resistance, or the cargo belong to the owners of the ship, the case will be otherwise (r).

As has been already indicated, the crew of a captured neutral vessel ought not to attempt a rescue, as by so doing they expose the vessel and cargo to confiscation. And if the vessel be warranted neutral in the policy of insurance, the attempt at rescue will be deemed a breach of this warranty, and will void the policy (s). The crew of a captured bellige rent vessel may lawfully make such an attempt, though they are ordinarily under no obligation to do so; and if the attempt be made and result successfully, the rescuers have as salvors a lien on the property salved by their action (†).

The next neutral offence involving confiscation is that of falsifying or destroying the ship's papers.

(0) An interesting account of this singularly bold and successful enterprise, with the diplomatic correspondence which grew out of it, appears in 55 State Papers, 1864-5, pp. 817-837.

(p) The Franklin, 2 Act. 108.

(9) The Catharina Elizabeth, 5 Rob. 232.

(r) Vide remarks sub Resistance to Search, p. 212, supra.
(s) Garrels v. Kensington, "The Dispatch," 8 T. R. 230.
(t) The Two Friends, supra. l'ide also p. 135, supra.

CAPTURE AND, IN CERTAIN CASES, CONFISCATION OF PROPERTY INVOLVED IN SAILING UNDER

FALSE PAPERS,

OR IN THE SUPPRESSION OR DESTRUCTION OF
PAPERS.

(With Remarks as to the Papers to be carried.)

On the exercise by a belligerent of the right of visit (u), probably his first demand will be to see the ship's papers. If these be promptly produced and be found in all respects in order, and there be no other circumstances warranting the detention of the vessel, she will be entitled to proceed on her course without further interference. If, however, the documents be not all produced, or if on production they bear evidence of having been tampered with, or be found in any respect contradictory-either as between themselves, or of the surroundings, or otherwise,-defective or unsatisfactory, the belligerent will be entitled to carry the vessel into port for further examination (v). If on adjudication it be found that the irregularities giving rise to the capture are attributable to bad faith on the part of the master, condemnation of the ship will be involved (w). Even if the vessel be released, the master may be ordered to pay the costs of the captors (x), on the ground that neutral masters are by the law of nations. required to carry proper documents, and that any loss or

(u) Vide p. 144.

(v) The Anna, 5 Rob. 382.

(w) Vide cases cited in Wheat. Int. Law, 2nd Eng. ed. 584. The Stephen Hart, Blatch. Pr. Ca. 388; The Springbok, ibid. 434; The Peterhoff, ibid. 463; The Louisa Agnes, ibid. 107.

(a) The subject of costs will be dealt with in its place. Vide p. 325,

charges sustained by the belligerent captors in consequence of a neutral's failure to comply with this requirement must be borne by the defaulter. And even if the master escape being required to indemnify the captors, he will probably be deemed to have forfeited all right to any compensation to which he would himself be otherwise entitled in the case of a capture not warranted by the facts. Mere irregularity resulting from inadvertence, and not accompanied by any circumstances indicating mala fides on the part of the master, while it may justify the bringing in of the vessel and involve the master in costs, will not necessarily entail condemnation; but irregularity accompanied by misconduct will be unfavourably construed in a prize court of the captors (r). It is hardly possible to define the irregularities which will justify condemnation, or at any rate warrant the bringing of the vessel into port for adjudication; each case must necessarily stand on its own merits. But if in any case a presumption of fraud or bad faith be not rebutted by the master, it will fare badly with him. Thus, the spoliation of papers is regarded as misconduct of an aggravated kind, and their destruction creates a strong presumption of enemy's property. But the spoliation of papers does not of itself create an absolute presumption of guilt, to the exclusion of further proof, for the circumstance may possibly have arisen from accident, necessity or superior force (y). But if, coupled with spoliation, there be unsatisfactory explanations, or vehement presumption of bad faith, or gross prevarication, it is good cause for denial of further proof. As regards the throwing overboard of papers, Lord Mansfield observed, in Bernardi v. Motteux (2), that while this offence is universally considered a strong presump

(x) The Neutralitet, 3 Rob. 295.

(y) The Peacock, 4 Rob. 185; The Stephen Hart, supra; The Springbok, supra; The Peterhoff, supra; The Pizarro, 2 Wheat. 227.

(z) Doug. 581.

tion of enemy's property, the act does not of itself necessarily involve condemnation. Generally, if papers be destroyed, the presumption is that they related either to the ship or cargo, and that it was of material consequence to some interests that they should be destroyed; though this presumption is capable of being rebutted (a). Papers with which the master must needs have been acquainted, setting up a false description of cargo, clearly involve confiscation. Thus, an attempt of the master to suppress the fact of there being contraband cargo on board, by means of fictitious bills of lading, entails confiscation of the ship (b). In The Sarah Christina (c), goods otherwise subject to pre-emption were confiscated by reason of there being false cargo-papers on board; the Court observing, that to entitle the owner to the benefit of the rule of preemption a perfect bona fides on his part is required. And papers setting up a pretended neutral destination are regarded as evidence of bad faith on the part of the master, for which he must suffer by the confiscation of his ship (d).

Commenting, in The Franklin (d), on the difficulty frequently met with as regards the detection of the offence of sailing to a false destination, the Court observed that "pretences and excuses are always resorted to, the fallacy of which can seldom be completely exposed; and therefore, without undertaking the task of exposing them in a particular case, the Court had been induced to hold generally in each case, that the certain fact shall prevail over the dubious explanations."

A vessel which succeeded in delivering a contraband cargo, and was captured on the return voyage, was condemned on the ground that the success of the adventure had been ob

(a) The Two Brothers, 1 Rob. 133.

(b) The Richmond, 5 Rob. 325.

(e) 1 Rob. 241.

(d) The Franklin, 3 Rob. 221; The Edward, 4 Rob. 68; The Ranger, 6 Rob. 126.