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An officer placed in possession of a vessel cap. tured by a national vessel, by the captor, may not be dispossessed by the officer of another national vessel for the purpose of enabling the latter to make a capture for his own use and benefit

If a neutral vessel be captured by a superior force, and a small force be placed on board her with a prize-master to carry her into port, it is not the duty of the master and crew of the captured vessel to attempt to effect a rescue, for, by doing so, they subject the vessel to condemnation, which

would otherwise be entitled to restitution. Liability for If two armed ships should meet upon the ocean, mistakes in gements and under mutual mistake, and without any want

of reasonable care, should go into an engagement, vessels.

neither would be liable to the other for any injury resulting from the combat. But if an attack were wanton, or in consequence of gross negligence on the part of either, it would subject the offending party to liability for the most ample remunera.

tion. Lawful cap. Lawful captures can only be made by national tures can only ole of wo

y vessels of war, or vessels commissioned for that public armed purpose. A seizure was made by a hired armed vessels or private armed revenue cutter, said to have been placed under the missioned.

command of The Euridice man-of-war as a tender.

“In order to support that averment," said Lord Stowell, “it must be shown, either that there has been some express designation of her in that character, by the orders of the admiralty, or that there has been a constant employment and occupation,

be ma

vessels com

The Eagle, 1 W. Rob., 245.
? The Short Staple vs. The United States, 9 Cranch, 55.
* The Marianna Flora, 3 Mason, 116.

a rev.

in a manner peculiar to tenders, equivalent to an
express designation, and sufficient to impress that
character upon her. The former species of proof
would undoubtedly be most desirable."
. In another case, a capture was made by a rev.
enue cutter, which had been fitted out as a tender
by the captain of a man-of-war, and put in com-
mand of a midshipman, and manned by a crew from
the man-of-war, but without any commission or or-
der from the admiralty.

“It is not to be maintained,” says Lord Stowell, in his opinion in this case, “ that an officer, by put

ting his men on board, can constitute a ship to be a į part of the navy of Great Britain. Such a characputer is not to be impressed without the intervention

of some public authority. If the contrary could be

held, this must follow, that an officer of a large ship I might form out of these tenders as many ships of

Tar as he pleased — he might compose a fleet. ! Whatever may have been the case in remote sta

tions—where the principal persons in command | must necessarily be intrusted with a greater lati. į tude of discretion-at home, where an officer has it | in his power instantly to refer to the admiralty, the case is very different.”

Unless the commission so granted by the commander, be afterward confirmed by the admiralty,

the prize is condemned as a droit of admiralty. 1 In cases however of boats belonging toʻmen-of- Capture by

boats belong ļ war, and employed in effecting a capture, Lord ing to men-of| Stowell said: “The court would certainly be dis. War.

posed to extend, as far as it could, with propriety,

'The Charlotte, 5 Rob.

The Melomane, 5 Rob., 50.

capture

to ships of war, the benefit of captures made by their boats acting distinctly in that capacity. There must be situations in which the captures could not otherwise be made, and many considerations of convenience require that they should be allowed to take, in whatever manner their judg. ments may deem expedient, according to the cir: cumstances of the case, either by their whole force, or by a part detached on that particular service. The court would therefore not be disposed to nar: row the legal effect of the operation of their boat's

crew."1 Restitution no The voluntary restitution of a prize, does not bar bar to second

a second seizure by other parties, either on the sam" or on other evidence, but such second capture is made at the peril of being subjected to costs and damages as made against the presumption of illegality resulting from the first restitution.

A ship, although incapable of going out upon a cruise, may nevertheless, make an effectual capture by her boats.

“ It is not to be said,” says the learned court, in a case in which this question arose, “that because the ship was incapable of going out on a cruise, that therefore she could not make a seizure in port. She had arms which she could stretch out for such a purpose. She had her boats, which might be employed on a service of this kind. Is the court in every case, to enter upon a consideration of the exact state and condition of the ship by which a

The Charlotte, ubi supra; vide also The Donna Barbara, 2 Haggard, 373.

? The Mercurius, 1 Rob., 80; vide also The Woodbridge, 1 Haggard, 74.

avoy.

seizure is effected. Suppose the vessel is in dock and undergoing repairs, the circumstance would not suspend the right of the officer in comınıand of her, to act by himself and men, in boats. The seizure may be legally effected by means of boats, or indeed, without them, by a mere summons to the parties." A lawful capture may be made by a ship em-türe may be

ho modo h o ohin om Lawful capployed in the convoy of merchantmen, provided it made by ship

employed in is done without a desertion of the convoying duty. convoy.

Upon this question, the rule is thus stated by Lord Stowell; “The first and great object of the attention of an officer appointed to a service of this kind, is the care of his convoy. He is not at liberty to desert it for the purpose of acquiring any advantage to himself, nor is he to volunteer any attack upon the enemy, if it takes him away from his first great duty. But, as far as it is consistent with that duty, he may pursue his own interest, and may attack and annoy the enemy, in any way that may appear to him advantageous. He may capture the ships and goods of the enemy, provided he does not withdraw himself from the duty of protecting the vessels under his care, and may take the benefit of prizes which he has the good fortune to make.

There is no pretence for saying, that a convoying ship may not legally and effectually make a prize as well as any other of his majesty's ships—nor is there more objection in the case of a convoying ship to constructive than to actual capture. A convoy. ing ship is no more disabled from rendering assist

The Charlotte, 1 Dodson, 220.

ance to others, than from making an actual capture herself. The service on which she is employed makes no disqualification in either case, supposing only that the capture can be effected without any breach of the principal duty, the care of the con

voy."1

ture.

Wrong-doer only liable for

op Where a wrong is committed in a capture, the injury result- wrong-doer is the only person who is responsible ing from a cap

for the injuries resulting therefrom.

After the cessation of hostilities between the United States and Great Britain, in 1783, but before the fact of such cessation had come to the knowledge of parties in the United States, The Mentor, an American ship, was destroyed, while off the Delaware, by The Centurion and Vulture, two Brit. ish ships-of-war, part of the squadron of Admiral Digby. In 1799, this was made the subject of a suit against Admiral Digby, in the admiralty court in England.

In rendering judgment in this case, Lord Stowell says: “It is an entire novelty in a prize cause, to call to adjudication, not the immediate alleged wrong-doer, but a person who was neither present at, nor cognizant of the transaction, and who is to be affected in responsibility merely on this groundthat the person alleged to have done the injury was acting under his general authority; for, as to particular orders applied to this transaction, it is not pretended that any were given, or could be given. He was only the admiral on the station, and the ships which committed the alleged outrage, were

sa

i The Galen, Dodson, 429–440.

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