« PreviousContinue »
disposition of the goods or vessel. All captures belong to the state in whose name they are made. An inchoate title to the prize is acquired by possession, but complete title is acquired only after condemnation by a properly constituted prize court.
A prize court may be established by the belligerent in its own state, in the territory where the belligerent has military jurisdiction or in the territory of an ally.1 The establishment of a court in neutral jurisdiction is not permitted. When Genêt, the minister of France, tried, in 1793, to set up consular prize courts in the United States, Washington protested and Genêt was recalled. Takahashi says, “ It is clear that if we admit the prevailing principle concerning the establishment of a prize court in a belligerent's own dominions or its ally's, or in occupied territory, we may infer that a court can be held on the deck of a man-of-war — a floating portion of a territorial sovereignty-lying in the abovementioned waters, provided the processes of procedure are followed.”? He maintains, however, that a court might not be established on the high seas, as proper procedure for the interested parties would not be possible.
The tribunals which have jurisdiction of prize cases differ in the different countries. In the United States, the District Courts possess the powers of a prize court, and an appeal lies to the Supreme Court.3
The methods of procedure of prize courts are similar in different countries. The practice in the United States is as follows :
1 Lawrence, $ 212. 2 Takahashi, p. 105. 8 U, S. Rev. Sts., § 563, cl. 8; 18 St., 316, c. 80.
Dana calls the prize tribunal an inquest "y the state, and regards it as the means by which the sovereign “ desires and is required to inform himself, by recognized modes, of the lawfulness of the capture.” The commanding officer of the capturing vessel, after securing the cargo and documents of the captured vessel, makes an inventory of the last named, seals them and sends them, together with the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and also any one on board supposed to have information, under charge of a prize master and a prize crew, into port to be placed in the custody of the court. The prize master delivers the documents and the inventory to prize commissioners, who are appointed by the court, and reports to the district attorney, who files a libel against the prize property and sees “ that the proper preparatory evidence is taken by the prize commissioners, and that the prize commissioners also take the depositions de bene esse of the prize crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution."i The libel should " properly contain only a description of the prize, with dates, etc., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication, that is, of facts enough to show that it is a maritime cause of prize jurisdiction and not a case of municipal penalty or forfeiture.”2 Notice is then published that citizens or neutrals, but not enemies, interested in the prize property shall appear and enter their
claims. As there are no allegations in the libel, the answer of the claimant is only a general denial under oath. The prize commissioners then examine the witnesses privately ; and this evidence, which is kept in secret until complete, is called in preparatorio.1 If the court is in doubt it will order “ further proof," that is besides the ship, cargo, documents, and witnesses. The burden is on the claimant to prove title. If the claimant's right is not sufficiently established, the property is condemned. The captors are, however, liable to damages if there is found no probable cause for the capture.3
It has been the general practice to distribute the proceeds, or a part of the proceeds, of a capture among the captors. This distribution is a matter of municipal law. In England the sum realized from the sale of the goods and vessel is distributed among the captors, though the crown reserves the right to decide what interest the captors shall have, if any.4 By a royal decree of June 20, 1864, Prussia provided in detail what each of those participating in the capture should receive. By the act of March 3, 1899, the United States provided that “all provisions of law authorizing
1 Wheat., D., n. 186, III.; The “Springbok ” 5 Wall., 1; The “Sir William Peel,” ibid., 517.
2 Wheat., D., n. 186, III.
3 The “ La Manche," 2 Sprague, 207. The method of procedure in a prize court, in case of enemy property, is given in Appendix, P. 421 et seq. With a few changes, the same forms may be used in the case of neutral property. See further on the method of procedure in a prize court, Takahashi, pp. 11 et seq., 73-107, 172–191.
4 Lawrence, § 212.
the distribution among captors of the whole, or any portion, of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed.” 1
“If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew — they may be appraised and sold, and if this cannot be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered.” 2
1 30 U. S. Sts. at Large, 1007.
2 U. S. Naval War Code, Art. 50; Appendix, p. 415; U. S. Rev. Sts. $$ 4615, 4627, 4628.