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Great and unnecessary delay in bringing the prize to adjudication will be chargeable against the captors, as in The Madonna del Burso (m), where Sir W. Scott condemned them in costs and damages. But no demurrage will be allowed to the claimants in respect of any time lost owing to their own neglect or misconduct (n). In The Elize (0), where the vessel was seized whilst in port at Leith under the erroneous belief that she had broken blockade, costs and damages were ordered against the capturing revenue officers, apparently on the ground that they could have ascertained the facts before going to the length they did. But such costs and damages were to be calculated only up to the time when the captors voluntarily tendered restitution, which the claimants had refused unless costs and damages were paid; the Court observing that claimants should have accepted the vessel whilst reserving the question of costs and damages. In The Primus (p) (1854), where an enemy ship had been condemned and the neutral cargo released, the Court refused costs against captors, observing that "at the time the owners of the cargo put it on board there was imminent risk of war, and they must abide by the consequences of their act." The claimants had applied to have their costs paid out of the sale proceeds of the ship.

If the master of a non-commissioned vessel should make a capture, and it turn out illegal, the claim will be against him personally and not against the owners, unless the wrongful act have been committed within the scope of the ordinary authority of the latter (9).

(m) 4 Rob. 169. See also The San Juan Battista, and The Purissima Concepcion, 5 Rob. 33; The Corier Maritimo, 1 Rob. 287; The Susanna, 6 Rob. 51; The Peacock, 4 Rob. 185; The Anna Catharina, 6 Rob. 10. (n) The Ostsee, supra; The Elize, 24 L. T. 170.

(0) Ibid.

(p) 24 L. T. 34.

(9) Story on Prize Courts, p. 75.

In The La Amistad de Rues (r), it was decided by Story, J., that in awarding damages, claims for loss of market or probable profits cannot be considered. And in The Alabama Case (the Geneva Award, 1872), it was unanimously held by the arbitrators that prospective earnings were to be excluded, seeing that they depended upon future and uncertain contingencies. Claims for indirect or consequential damages were also excluded (s). In Kulen Kemp v. Vigne (t), where sentence of condemnation had been reversed on appeal, the Court, for reasons which do not appear, ordered the expenses of reclaiming the ship and cargo to be a charge upon the cargo.

During the Franco-German war two merchant vessels of the enemy were captured by a French cruiser, and as it was impracticable to carry the vessels into port, the captors burnt them. A claim was presented by English owners of cargo on board, but was rejected by the French Courts. "This decision," says a writer in the Edinburgh Review, for July 1884 (p. 263), "is important, as it affirmed that the third article of the Paris Declaration did not guarantee neutrals. from damages caused by the legitimate capture of an enemy's vessel, or by the military acts which accompanied or followed the capture. This seems to be going a little too far, as the captors should in justice have been held bound to compensate the neutrals for any damages which may have been caused. In any case, nothing but the most absolute necessity should justify the destruction of a prize."

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"In cases when further proof is directed," says Story (u), costs and expenses are never allowed to the claimant. Nor where the neutrality of the property does not appear by the

(r) 5 Wheat. 385.

(8) Vide p. 364, infra, for further reference to this case.

(t) 1 T. R. 304.

(u) Prize Courts, p. 95, with cases cited.

papers on board and the preparatory evidence; nor where papers are spoiled or thrown overboard, unless the act be produced by the captors' misconduct, as by firing under false colours; nor where the master or crew, upon the preparatory examinations, grossly prevaricate; nor where any part of the cargo is condemned; nor where the ship comes from a blockaded port; nor if the ship be restored by consent, without reserving the question of costs and expenses. But in all these cases it is in the discretion of the Court to allow the captors their costs and expenses; and, in general, wherever the captors are justified in the capture, their costs and expenses are decreed to them by the Court, in case of restitution of property. Therefore they are allowed where the original destination was to a blockaded port, although changed on hearing of the blockade; where ships, even of our own country, are captured sailing under false papers; where the nature of the cargo is ambiguous as to contraband; and, generally, in all cases of false papers; and in all cases where further proof is required. In cases where the captors' expenses are allowed, the expenses intended are such as are necessarily incurred in consequence of the act of capture; such are the expenses of the captors' agent, but not insurance made by the captors, nor expenses of transmitting a cargo from a colony to the mother country. And property restored to the claimant is not to be charged with any expenses of agency, or for taking care of it, unless made a charge by the Court. And the expense of an unlivery or delivery of the property which is restored, is to be borne by the captors or releasing party, and not by the property, unless it is so directed by the Court. In general, where the property is condemned, the expenses of unlivery and warehousing, &c. fall on the captors; and where it is restored the Court will apportion them in its discretion on the captors and on the cargo."

In The Ocean Bride (x), the ship had, on the eve of the Crimean War, been colourably sold to a Russian merchant at Archangel in order to prevent capture by the Russians. On her return to England she was seized, but restored; the Court, in the special circumstances, approving the colourable sale. Costs were, however, awarded to captors.

In The Hoop (y), where the cargo was condemned on the ground that it had been carried from Holland contrary to British prohibition, and without licence, but in circumstances which exonerated the concerned from any charge of wilful misconduct, freight and expenses were allowed to the master, and the expenses of the claims were also ordered to be paid out of the cargo.

In The Maria Poulona (z), where the claimant, after accepting restitution without any reserve of rights as regards damages, demanded compensation, the Court decided that he must take the inconvenience with the convenience of restitution, and that he had put himself out of Court by thus accepting the offer of restitution.

In The Catharine and Anna (a), where the ship and cargo, of very considerable value, had been restored on payment of captors' expenses, the Court refused to include amongst the latter a sum of 2707. incurred for fire insurance. The claimants had themselves insured against fire, and the captors had incurred a similar charge without previous reference either to them or to the Court.

Whilst a prize is in the custody of the Marshal of the Court, he is responsible for its safe keeping. In The Hoop (b), a claim was made against this official for a boat and cable removed from the ship, and the Court decreed compensation and costs; observing that the credit of the Court was con

(x) 24 L. T. 99.

(y) 1 Rob. 196, and p. 262, supra. (z) 6 Rob. 236.

(a) 4 Rob. 39.

(b) 4 Rob. 145.

cerned in the safe keeping of the property under its protection. And in The Concordia (c), the Court, the cargo having been restored, held the captors liable for a deficiency of cargo alleged to be due to their embezzlement.

In The Rendsborg (d), a prize valued with her cargo at nearly 100,000l., the charges of the Marshal were objected to as being excessive, and the Court, in a judgment which criticised the items in detail, ordered them to be considerably reduced.

Insurance.

If an insurance be warranted free from capture and seizure, it is obvious that the underwriters will not be liable for costs consequent on capture, for it is a matter of indifference to them whether the interest insured be condemned to the captors or not. Or rather, it is to underwriters' advantage to have their liability prematurely terminated by a loss which they have not undertaken to cover; and, this being so, the question of costs subsequent to capture is clearly no concern of theirs. Similarly, where the policy undertakes the risk of capture, but the insurance has been invalidated by some breach of the law of nations, or of the conditions on which the policy was granted (e). But in ordinary cases, where the risk of capture is covered under the policy, expenses reasonably incurred by the assured in order to obtain restitution of his property seized by a belligerent are, on the judgment in Berens v. Rucker (f), recoverable from underwriters. In this case a neutral vessel had been seized by a British privateer, and brought into Portsmouth, on the ground of being engaged in illicit trade of the enemy. On the refusal or delay of the claimants to furnish information demanded, judgment was pronounced against them by default, and against

(c) 2 Rob. 102.

(d) 6 Rob. 142.

(e) Vide as to this sub Void Insurances, p. 405, infra.

(f) 1 Black. 313.

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