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the future, the complaints and annoyances which had resulted from a fraudulent diversion by prize agents, from the hands of the lawful distributees, of the funds intrusted to them for distribution.
Ordinarily, an execution of the decree of distribution, by officers of the court, acting under the direct authority of the court, and drawing the fund from the registry or depository of the court, would not only be much more convenient to the distributees, but it would save to them the additional expense resulting from the employment of an agent to repre. sent them at the navy department.
In the great majority of cases, it is believed that the purpose of the law would be accomplished, without any departure from its provisions, by the exercise of that discretion with which the court as a prize court is unquestionably clothed, of directing a sale of the prize property to be made by the commissioners of prize, the proceeds to be by them received and deposited in the registry, or with the usual depository of the court, and by them disbursed therefrom, pursuant to the law and the provisions of the decree.
If the documentary proofs and the examination Decree of res
titution on re in preparatorio, disclose a case of recapture merely, capture. then two questions arise-first, whether the original belligerent owner is or not entitled to restitution, and if so entitled, what is the compensation to be paid by way of salvage ? We have already fully considered the principles When made, .
u: ... and when on and authorities upon which the right of the bellige-pain rent owner, whose ship having been captured by salvage. the enemy is recaptured, to have restitution made
to him, exists or is lost, in that chapter treating of the jus postliminium. And also the subject of the compensation in way of salvage, where the owner is entitled to a restitution.
Here, it is only necessary to refer to some few additional authorities, illustrative of the practice
and proceedings of prize courts in such cases, Military sal Discussions as to the general principles of law vage and its amount regu- upon which salvage should be awarded to recaplated by stattute in the tors on a decree of restitution, and the measure nited States. of compensation, are superseded by the interven.
tion of legislative provisions. This is the case iu the United States. By act of Congress of March 3d, Chap. xiv., it is provided, that in cases of recapture of vessels or goods belonging to persons resident within or under the protection of the United States, the same not having been condemnent as prize, lry competent authority before the recapture, shall be restored on payment of salvage of one eighth of the value, if recaptured by a public ship, and one sixth, if recaptured by a private ship; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war, before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel belong to the government
'The Santa Cruz, 1 Rob., 50 ; L'Actif, Edw., 185; Th Ceylon, 1 Dods., 105; The Purssima Conception, 6 Rob., 45; The Victoria, Edw., 97; The Flad Oyen, 1 Rob., 135; The Cosmopolite, 3 Rob., 333; Hudson vs. Guestier, 4 Cranch, 293, S. C., 6 Cranch, 281; The Arabella and Madeira, 2 Gallis., 368; The Falcon, 6 Rob., 194; The Schooner Sophie, 6 Rob., 138; The Kiertighett, 3 Rob., 96; The Perseverance, 2 Rob., 139; The Nos. tra de Conceicus, 5 Rob., 294; The Countess of Lauderdale, 4 Rob.,
and be unarmed, the salvage to be one sixth if recapturell by a private ship, and one twelfth if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a public ship. In respect to public armed ships, the statute provides for the same rate of salvage by the cargo as by the vessel; but in respect to private ships (as it is apprehended by inadvertence), the rate of salvage is made the same on the cargo whether the vessel be armed or unarmed.
What constitutes a "setting forth as a vessel of war," within the meaning of this act, has received no judicial construction by the United States court, but the same provision, by a like clause in the British act, has received the interpretation of the English courts in the cases cited.?
Salvage, when allowed as a condition of restitution of recaptured property, is ascertained either by an appraisal of the property by appraisers duly appointed by the court, or by its sale, if the parties consent to such mode; and its distribution is upon decree, in like manner as the distribution of the proceeds of prize, upon condemnation and sale.
Where, upon the hearing, in the first instance, Question of upon the papers and documents found on board ; the vessel, and the examination in preparatorio resu taken by the commissioners, it appears, that for titution. any cause, in the judgment of the court, restitution should be decreed in favor of the claimants, the
from decree of res.
'The Adeline, 9 Cranch, 244. * The Ceylon, i Dod., 105; The Horatio, 6 Rob., 320; The Nos, Signora del Rosario, 3 Rob., 10.
question then arises whether upon such restitution, the damages, costs, and expenses are to be paid ly the captors or the costs and expenses by the clainiants. This rests entirely in the discretion of the court, and by the practice of prize courts has been made to depend upon the proof of probable cause of capture.
Wherever, upon the evidence taken in the first instance, the case is so doubtful that an order for further proof is made by the court, the costs and expenses are never allowed to the claimant. Nor where the neutrality of the property does not apk pear either by the documents or the evidence." Nor are such costs and expenses allowed in the case of a destruction or spoliation of papers, unless such destruction or spoliation has been occasioned by the misconduct of the captors themselves, as hy
firing under false colors. Nor where the master or crew prevaricate on the examination. Nor where any portion of the cargo is condemned," Nor where the ship comes from a blockaded port. Nor, if the ship be restored by consent, without reservation of the question of costs and expenses." But in each one of these and similar cases, showing a probable or reasonable cause of capture, it is in the discretion of the court to allow the costs and
· The Diana, 5 Rob., 67; The Einigheden, 1 Rob., 323.
· The Statira, 2 Cranch, 102, note (a); vide Letter of Lord Stowell and Sir J. Nicholl in the Appendix.
3 The Peacock, 4 Rob., 185. • The William, 6 Rob., 316. 5 The Frederick Molke, 1 Rob., 86; The Betsy, 1 Rob., 93, The Vrow Judith, i Rob., 150. 6 The cases last cited. · The Maria Powlona, 6 Rob., 236.
expenses to the captors, and order them to be paid by the claimants as a condition of restitution. Wherever the captors are justified in their capture, their costs and expenses are decreed to them on restitution. For this reason, they are allowed their costs and expenses, where the original destination of the vessel was to the blockaded port, although changed on hearing of the blockade. Where the captured ship was sailing under false colors, whether the ship be an enemy's ship or not. Where the nature of the cargo is ambiguous, as to its being contraband." And in every case where farther proof is required by order of court.
Wherever the expenses of the captors are allowed, such expenses are intended as are necessarily incurred as a consequence of the capture—such as agents' expenses, navigation expenses, pilots' expenses, harbor expenses, &c.—but not the expenses of insurance made by the captors, nor the expenses of transmitting a cargo from a colony to the mother country. The expenses of keeping the property, of its unloading and delivery, generally fall on the captors, unless where it is made a charge, or where it is specially apportioned, by order of the court."
i Vide Letter of Lord Stowell and Sir J. Nicholl, Appendix. 9 The Imina, 3 Rob., 167; The Principe, Edw., 70. 3 The Sarah, 3 Rob., 330. * The Twende Broder, 4 Rob., 33; The Gute Gesetschaft, 4 Rob., 94; The Christina Maria, 4 Rob., 166. 5 The cases last cited, and The Nostra Signora, dc., 6 Rob., 41.
The Frances, 1 Gall., 445; The Apollo, 4 Rob., 158; The Mary, 9 Cranch, 126.
: The Asa Grande, Edw., 45; The Catherine and Anna, 4 Rob., 39; The Murcissus, 4 Rob., 17; The Rendsberg, 6 Rob. 142; The Industrie, 5 Rob., 88.