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And how and the prize commissioners to the court, setting forth where the same is to be the evidence produced before them upon these executed.
points by the government and the captors.
Upon the basis of this decree, the amount to which each person is entitled as captor, is then as. certained at the navy department, where the prize lists are required by law to be sent by commanders, where the respective rates of pay of all on board the vessels entitled, is known, and where the prize money is to be paid under the direction of the secretary.
COSTS AND DISBURSEMENTS IN PRIZE
PROCEEDINGS. Character of The sending in, safe keeping and adjudication of the costs and
captured property, necessarily involve large expenditures. These consist of pilotage, towage, wharf. age, insurance, the expenses of an unlivery of cargo, where such unlivery is necessary to its preservation, storage, and the numerous expenses incident to the
adjudication, appraisement and sale. How to be These costs and expenses constitute à charge liquidated.
upon the proceeds of the property, if the same should be condemned and sold. But many of these expenses are of such a nature as to require immediate disbursement, and the liquidation of none of them should be postponed to the termination of a protracted litigation, especially if the litigation be protracted by appeals from final decrees of condemnation.
To provide against such delays, which have occasioned very great embarrassment in the recent judi
want of an apnay, propriation to
cial proceedings in maritime captures in the Embarrass,
ments resultcourts of the U d States, the obviously proper ing from the course is that p ued in the British Admiralty, namely, the provi on of a fund by the government, pay the neces. for the purpose of prompt liquidation of these ex- of adjudicapenses, under such regulation as shall insure its“ proper application, as an advance by the dominus , litis, upon the security of the property in his possession.
By the provisions of the act of Congress of March Attempted 25th, 1862, it was attempted to effect the payment statute pro
remedy by of the expenses referred to out of the proceeds of vision. the sale of captured property, without further delay than that requisite for its condemnation; and in view of the ordinary and requisite celerity in prize proceedings, it was thought that a provision for payment at such time, might supersede the necessity of providing a special fund, and tend to relieve the embarrassments arising from the delay.
The second section of the act referred to, accordingly provides that the several charges and expenses enumerated, “having been audited and allowed by the court, shall, in the event of a decree of condemnation, be paid out of the proceeds of any sale of the property, final or interlocutory, in the custody of the court.”
An appeal from a decree of condemnation in a Reasons for prize cause, should not, it was urged, as in England tion of u it does not, stay the execution of the decree, excepts so far as to postpone the final distribution of the the remedy. net proceeds of the property.
In the case of a capture by a private armed vessel, the captors are entitled to the possession of the property upon security, after a condemnation, not
1 such construc
atute as shall secure
withstanding an appeal; and where the capture is made by a public.ship, a sale of the property, and deposit of the proceeds, as required by law, should, in all cases, follow directly upon a decree of condemnation, even though an appeal be interposed. It would be intolerable, it was said, to allow a claimant of captured property, after it has been condemned on the proofs and argument, by the intervention of an appeal which, in ninety-nine cases out of every hundred, is for delay simply, and upon his giving an appeal-bond for the paltry sum of two hundred and fifty dollars, as required by law, to tie up property, perhaps to the value of half a million, which not being perishable, cannot be sold, during the months, and it may be years, of the pendency of the several appeals, the expenses upon which, for safe custody and insurance, exceed the amount of his appeal bonds, during each week of the litiga. tion—and which expenses he is in no event bound to pay—but which must be deducted from the proceeds of the property, thus reducing, by thousands, the amount subject to the final decree of distribution.
Such a practice, it was said, would seem even more intolerable and unjust, when it is considered that it is the established rule of prize-courts, that a decree of condemnation, in the first instance, being conclusive evidence of the highest character, of the probable and justifiable cause of capture, subjects the claimants to the payment of all the costs and expenses, even although such decree should be reversed on appeal.
Indeerl, the captured property is invariably charged with the costs and expenses, by the decisions of prize-courts, wherever probable cause for the capture existed; although restitution should be decreed, at the hearing, on the proofs, in the first instance.
It was therefore considered that the legislative enactment, providing for the payment of the costs and expenses out of the proceeds of a sale of the property, “in the event of its condemnation," would not only secure their payment without great delay, but would be manifestly just, and in accordance with the theory of prize proceedings, and the practice of prize-courts.
This statute has, however, received a judicial construction at variance from all this. The Sarah Starr and The Aigburth, having been the statute
ten otherwise concondemned upon the hearing in the first instance, 's by the decrees of the District Court of the United Circuit Court
of the United States for the Southern District of New York, the states in the
Second Circuit several claimants in each case appealed from the in the cases of decrees to the United States Circuit Court.
Starr and The cargoes had been sold on interlocutory order, The Aigburth. and the proceeds deposited in court. The claimants and appellants then moved the Circuit Court for an order for the appraisement of the vessels, and their delivery to them, upon executing a bond for their appraised value.
The marshal then intervened, and prayed for an order for the payment of the expenses and disbursements out of the proceeds in court in the several causes, and which he had individually disbursed; consisting of pilotage, towage, wharfage, keeper's fees, &c.
After reciting the provisions of the act of March, 1862, the learned judge says:
“It will be seen, from the above provisions, that
the claimant is not responsible for the costs and expenses attending the seizure, detention and safe custody of the vessel seized by the government, unless followed by a decree of condemnation, or res. titution on payment of the costs.
“The government is the libellant, instituting proceedings against the vessel, and, like any other party instituting a suit, is responsible for the expenses incurred in the progress of the litigation, accompanied with the right of reimbursement in the event of success, namely, the condemnation of the vessel, &c.
“The claimant acts on the defensive, and is not subject to any portion of the costs and expenses incurred by the proceeding of the libellant, except his own, in the progress of the defense, till adjudged against him by the court in the final adju. dication.
“It is true that these costs and expenses are a charge upon the property seized, whether vessel or cargo, and which remains in the custody of the law, or its proceeds, in case of an interlocutory sale, or the bond, as representing the property, in case it is bonded, as a security for the reimbursement of these costs and expenses; and this charge upon the res continues until the final adjudication of the case. If favorable to the libellant, they are paid out of the proceeds; if not, they are exempt, and the prop. erty, or proceeds, restored to the claimants.
“Applying these principles to the case before us, it is quite clear that the marshal's bill presented, which includes charges for his own services, for wharfage, towage, &c., cannot be allowed. He must look to the government, the libellant, for