15. If a Commander in the exercise of these powers detain a Vessel without probable cause, or do an act not sanctioned by International law or otherwise unwarrantable, he will incur the displeasure of Her Majesty's Government, and will also be personally liable for damages. 16. The Commander is likewise responsible in damages for the acts of all under his command, whether he himself is present or absent; and this responsibility is not shifted upon his Superior Officer (as the Commander of the Squadron or of the Fleet), unless such Superior Officer be actually present and coöperating, or has issued express orders for the doing of the act in question.1 17. Even although the Vessel and Cargo be condemned as Lawful Prize, the Captors may be deprived by the Prize Court of all interest in the same, if in relation to the Vessel or her Cargo, or any Person on board, they have committed any offence against the Law of Nations, or against the Naval Prize Act, 1864, or against any Act relating to Naval Discipline, or against any order in Council or Royal Proclamation, or any breach of Her Majesty's Instructions relating to Prize, or any act of Disobedience to the Orders of the Lords of the Admiralty, or to the Command of a Superior Officer.2 1 Mentor, 1 C. Rob. 179. Eleanor, 2 Wheat. 345. 2 Naval Prize Act, 1864, Sec. 37. 18. The Commander should detain any Enemy Vessel which he may meet with, whatever are the ports between which she is trading. Her Officers and Crew are Prisoners of War. What are Enemy Vessels. 19. The Commander will be justified in treating as an Enemy Vessel: 1. Any Vessel under the Flag and Pass of the Enemy Government.1 2. Any Vessel sailing under a Licence of the Enemy Government.2 3. Any Vessel owned in whole or in part by an Enemy, as hereinafter defined3 (see §§ 20—30). 4. Any Vessel apparently owned by a British, Allied or Neutral subject, as hereinafter defined (see §§ 41, 42, 49, 55, 56), if such person has acquired Vigilantia, 1 C. Rob. 1. Vrouw Elizabeth, 5 C. Rob. 2. Vrouw Anna Catharina, 5 C. Rob. 161. Fortuna, 1 Dod. 81. Success, 1 Dod. 131. Industrie. Spinks, 54. 2 Julia, 8 Cranch, 181. 3 Primus, Spinks, 48. Aurora, 8 Cranch, 202. Hiram, 8 Cranch. 444. the ownership by a Transfer from an Enemy made after the Vessel had started upon the Voyage during which she is met with, and has not yet actually taken possession of her.1 5. Any Vessel apparently owned by a British, Allied, or Neutral subject, if such person has acquired the ownership by a Transfer from an Enemy made at any time during the war, or previous to the war but in contemplation of its breaking out, unless there is satisfactory proof that the Transfer was bona fide and complete.2 In the event of such a Transfer being alleged, the Commander should call for the Bill of Sale, and also for any Papers or Correspondence relating to the same.3 If the Bill of Sale is not forthcoming, and its absence is unaccounted for, he should detain the Vessel.4 If the Bill of Sale is pro duced, its contents should be carefully examined, a. The Name and Residence of the Vendor. d. The Consideration-money and the Receipt. f. The Service of the Vessel and the Name of the Master, both before and after the Transfer. 1 Vrouw Margaretha, 1 C. Rob. 336. Cf. Jan Frederick, 5 C. Rob, 133. Baltica, 11 Moore P.C. 141. 2 Bernon, 1 C. Rob. 101. Welvaart, 1 C. Rob. 122. Rob. 101. Ariel, 11 Moore P.C. 119. 3 Otto and Olaf, Spinks, 257. Benedict, Spinks, 314. 4 Maria, Spinks, 321. Sechs Geschwistern, 4 C. Endraught, 1 C. Rob. 22. Juffrow Anna, 1 C. Rob. 124. 1 C. Rob. 126. Hoop, 1 C. Rob. 129. Christine, Spinks, 82. Juffrow Elbrecht, The Name and Residence of the Vendor are material to show whether or not he was an Enemy. The Name and Residence of the Purchaser are material to show whether or not he was a person resident in British, Allied, or Neutral Territory. The Date and Place of the Purchase are material to show whether or not the Transfer was made in contemplation or in consequence of the war. The Consideration-money is material, in case the Vessel is alleged to have been transferred by Sale, to show whether or not the transaction was bonâ fide. For if the transaction was professedly a Sale, then the fact that the consideration was nominal or wholly inadequate would be a just cause for suspicion. But a Transfer by way of gift or bequest will, if bonâ fide and complete, be as valid as a Transfer by way of Sale.1 The Receipt for the purchase-money should be called for in case the Vessel is alleged to have been transferred by Sale; but if there is proof that the Sale was bonâ fide and in other respects complete, the Transfer will be good, although no Receipt is forthcoming, and even although the Purchase-money has not in fact been paid.3 For the Prize Court does not consider any lien which an Enemy vendor may have upon a Vessel or Cargo or Freight for unpaid purchasemoney to be a subsisting Enemy's interest rendering the Vessel liable to confiscation. 1 Benedict, Spinks, 314. 2 Bernon 1 C. Rob. 104. Sechs Geschwistern, 4 C. Rob. 100. Emilie, Spinis, 12. Christine, Spinks, 82. Ernst Merck, Spinks, 198. 3 Soglasie Spinks, 110. Ariel, 11 Moore P.C. 119. Johann However, the fact that the Purchase-money, instead of having been paid in Cash, has only been carried to an account, will raise the presumption of the Transfer being merely colorable, and such presumption can be rebutted only by clear proof to the contrary. The terms of the Sale are material to show whether the transfer was complete. The Transfer would not be complete if the Sale was not absolute; as, if it contained a Power of Revocation, or a condition for a return of the Vessel at the close of the war, or a reservation of the profits of the Vessel, or of any control over her to be left in the hands of the former Owner.1 The Service of the Vessel, and the Name of the Master both before and after the Transfer, are material to show whether or not the Transfer be a genuine one; for if the Service has continued unaltered by the Transfer, the Commander will be justified in holding the Transfer to be colorable only.2 The fact that the same Master is retained in command after the Transfer raises a suspicion, but, standing alone, will not be conclusive that the Transfer was not bonâ fide.3 If the Transfer is bonâ fide and complete as between the parties, the fact that it was effected in fraud of the Revenue or the law of the Mercantile Marine of any Foreign Country will be immaterial.4 If the Purchase was made through an Agent, the Letters of Procuration should be called for.5 1 Sechs Geschwistern, 4 C. Rob. 100. 2 Vigilantia, 1 C. Rob. 1. Endraught, ib. 19. Omnibus, 6 C. Rob. 71. Benedict, Spinks, 316. * Otto and Olaf, Spinks, 257. Benedict, Spinks, 314. 5 Argo, 1 C. Rob. 158 |