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ture: “Their discontinuance of the chase and alteration of the course, is not an act of their own, but an act wrongfully occasioned by the neglect or mistake or wilful omission on the part of the Sirius ; and being so, would not have the effect which generally would follow upon the discontinuance of the chase and alteration of the course, before the act of capture took place; for generally, a discontinuance and alteration would defeat the interest of a joint-captor, by destroying the presumption of assistance and intimidation.”
There are many other cases in which fraud on the part of the actual captor has been held to vest an interest as joint-captors in those who would have been co-operators or constructive captors, but for such fraudulent act.
In cases where, at a period antecedent to the capture, an engagement had taken place between the vessel claiming as joint-captor, on the basis of constructive assistance, and the prize, the courts lean strongly in favor of upholding the claim.
The British ship-of-war Sparrow, had engaged L'Etoile, a French frigate, a joint-cruiser, the Hebrus then being in the distance. On the following day
The Hebrus captured L'Etoile, The Sparrow still being in chase. The claim to share on the part of The Sparrow was admitted by Lord Stowell say. ing: “I hold it to be a clear and indisputable rule of law, that if two vessels are associated for one
'The Waaksamheid, 3 Rob., 7.
· The Gulen, 1 Dod., 433; The Herman, 3 Rob., 8; The Robert, ib.,194; The Endraught, ib., Appendix, 35; The Minerva, 2 Acton, 112; La Virgine, 6 Rob., 124; L'Amitie, 6 Rob., 267; The Sparkler, 1 Dod., 362.
common purpose, as these vessels were, the continu. ance of the chase is sufficient to give the right of joint-capture. Sight, under such circumstances, is by no means necessary, because, exclusive of that, there exists that which is of the very essence of the claim, encouragement to the friend, and intimidation to the enemy. Both The Hebrus and the enemy's frigate knew that The Sparrow was astern, and that she was using her best endeavors to come up. She was a consort of the actual captor, and pursued the prize in conjunction with her, and had not discontinued the pursuit when the capture was consummated.”
ent basis fo
Previous con- If two cruisers casually meet, and the captain of cert a suffici- 11
ora the one is senior in service to the captain of the claim of joint: other, though they are of equal rank, by the rules abandoned at of the service the ship under the command of the the time of the capture.
junior officer is under the direction of the other. If, in pursuance of such direction, the junior captain is ordered to pursue one of two hostile vessels in sight, while the senior pursues the other, both vessels being taken, the junior is entitled to share as joint-captor of both. “I consider it to be a clear rule of law,” said Lord Stowell, in this case, “that ships engaged in a joint-enterprise of this kind, and acting under the orders of the same superior officer, are entitled to share in each other's prizes; and it is certainly for the benefit of the public service that a rule of this sort should prevail, in order that the public force of the state may be distributed so as to produce the greatest pos
'L'Etoile, 2 Dod., 107.
?The Empress, 1 Dod., 368.
sible advantage to the country, and the greatest possible annoyance to the enemy."
Where, however, there has been such a dispersion of vessels, between whom there existed a previous concert, that it had become manifestly impossible for either to receive support or assistance from the other, the mere fact of original concert will not support a claim of joint-capture.
A French ship was taken by one of three Eng. lish ships, which, having been apprised of the design of the enemy's ship to attempt an escape from the harbor of Port au Prince, had stationed themselves at the several outlets of that harbor. The enemy's ship having been taken by one of the British ships, the others not being present, claim to share as joint-captors was preferred by the ships not present, and rejected. The justice of this decision, or its correctness upon the established principles in the law of joint-capture, is not readily appreciated. It would certainly seem that the ships guarding the outlets of the harbor through either of which the enemy's ship might have escaped, and probably would have escaped but for their being stationed there, were quite as much co-operating in the capture, as ships continuing on the chase, at the time of the actual capture by one which happened to outsail her consorts.
There is certainly no analogy between such a case and that of a claim to joint-capture by a cruiser who had reconnoitred the prize, but at the time of the capture by another, had stood off on another chase.
· The Mars, 2 Rob., 22. ? The Lord Middleton, 4 Rob., 155; The Rattlesnake, 2 Dod., 32.
The British ship Albion, by signal, was detached from the squadron and ordered to give chase. She did so, and completed that duty; and afterward, seeing another vessel of the enemy, she made a second chase, and captured the ship; it was held that the ships of the squadron were entitled to share as joint-captors in the second prize.? .
There was, at one time, much discussion in the admiralty courts, both of England and France, whether, in a case where a ship of the enemy is taken, and subsequently lost to an enemy's cruiser, and afterward retaken by a ship other than the first captor, the first captor had an interest in the prize, subject to the salvage claim of the recaptors, or whether the recapture was not in such case to be regarded as an original capture, vesting the interest in the second captors. And this last has become the established doctrine.
It was so decided in the French court of prize, by a decree made in 1748, and by the Lords of the Admiralty in England, in two cases involving the question ; although, in a previous case in 1778, it had been decided by the court of admiralty, that the first taker was to be considered the actual captor, and the subsequent taker the recaptor, entitled to a high salvage.
A captor may be deprived of the benefit of his capture either by rescue or by a recapture. They
· Le Bon Aventure, 1 Acton, 211.
* The Polly (Lords, Nov. 21, 1780); The Marguerite, (Lords, April 3, 1781).
* The Lucretia, 1778.
are thus distinguished : a rescue is where the cap- Recapture and
rescue defined tured party rise and succeed in effecting a recovery and distinof the property captured; a recapture is where a guis prize, having been taken by an enemy, is recovered from his possession by the arrival of a friendly force.
There is a kind of rescue which partakes of the · character of the recapture; and this occurs where
the weaker party, before he is overpowered, obtains relief from the arrival of friendly succor, and is thus preserved from the possession of the enemy. A recapture, in all cases where it can be effected, To recapture a
duty. is a duty incumbent upon friends or allies. A rescue is matter of merit rather than of duty. To rescue a
Y • meritorious Lord Stowell says: “Seamen are not bound by act. their general duty as mariners to attempt a rescue; nor would they have been guilty of a desertion of duty in that capacity, had they declined it. It is a meritorious act to join in such attempts; and if there are persons who entertain any doubt whether it ought to be so regarded, I desire not to be considered of that number. As to the situation and character of persons engaged in such attempts, it is certainly to be regarded an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship, or in discharge of any official duty, either ordinary or extraordinary.2
The distinction between the obligation, to the performance of the rescue, which partakes of the nature of a recapture, and of the rescue proper, is
· The Two Friends, 1 Rob., 271; The Helen, 3 Rob., 224. * The Two Friends, 1 Rob., 271.