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Liability for mistakes in engagements of friendly vessels.
Lawful captures can only be made by public armed vessels or private armed vessels commissioned.
An officer placed in possession of a vessel captured by a national vessel, by the captor, may not be dispossessed by the officer of another national vessel for the purpose of enabling the latter to make a capture for his own use and benefit.1
If a neutral vessel be captured by a superior force, and a small force be placed on board her with a prize-master to carry her into port, it is not the duty of the master and crew of the captured vessel to attempt to effect a rescue, for, by doing so, they subject the vessel to condemnation, which would otherwise be entitled to restitution.2
If two armed ships should meet upon the ocean, and under mutual mistake, and without any want of reasonable care, should go into an engagement, neither would be liable to the other for any injury resulting from the combat. But if an attack were wanton, or in consequence of gross negligence on the part of either, it would subject the offending party to liability for the most ample remuneration.8
Lawful captures can only be made by national vessels of war, or vessels commissioned for that purpose. A seizure was made by a hired armed revenue cutter, said to have been placed under the command of The Euridice man-of-war as a tender.
"In order to support that averment," said Lord Stowell, "it must be shown, either that there has been some express designation of her in that character, by the orders of the admiralty, or that there has been a constant employment and occupation,
1 The Eagle, 1 W. Rob., 245.
'The Short Staple vs. The United States, 9 Cranch, 55.
in a manner peculiar to tenders, equivalent to an express designation, and sufficient to impress that character upon her. The former species of proof would undoubtedly be most desirable."1
In another case, a capture was made by a revenue cutter, which had been fitted out as a tender by the captain of a man-of-war, and put in command of a midshipman, and manned by a crew from the man-of-war, but without any commission or order from the admiralty.2
"It is not to be maintained," says Lord Stowell, in his opinion in this case, "that an officer, by putting his men on board, can constitute a ship to be a part of the navy of Great Britain. Such a character is not to be impressed without the intervention of some public authority. If the contrary could be held, this must follow, that an officer of a large ship might form out of these tenders as many ships of war as he pleased — he might compose a fleet. Whatever may have been the case in remote stations—where the principal persons in command must necessarily be intrusted with a greater latitude of discretion—at home, where an officer has it in his power instantly to refer to the admiralty, the case is very different."
Unless the commission so granted by the commander, be afterward confirmed by the admiralty, the prize is condemned as a droit of admiralty.
In cases however of boats belonging to men-of- ^ap^r^y war, and employed in effecting a capture, Lord ing to men-ofStowell said: "The court would certainly be dis-war" posed to extend, as far as it could, with propriety,
1 The Charlotte, 5 Rob.
1 The Melomane, 5 Rob., 50.
to ships of war, the benefit of captures made by their boats acting distinctly in that capacity. There must be situations in which the captures could not otherwise be made, and many considerations of convenience require that they should be allowed to take, in whatever manner their judgments may deem expedient, according to the circumstances of the case, either by their whole force, or by a part detached on that particular service. The court would therefore not be disposed to narrow the legal effect of the operation of their boat's crew."1
Restitution no The voluntary restitution of a prize, does not bar capture a second seizure by other parties, either on the same or on other evidence, but such second capture is made at the peril of being subjected to costs and damages as made against the presumption of illegality resulting from the first restitution.2
A ship, although incapable of going out upon a cruise, may nevertheless, make an effectual capture by her boats.
"It is not to be said," says the learned court, in a case in which this question arose, "that because the ship was incapable of going out on a cruise, that therefore she could not make a seizure in port. She had arms which she could stretch out for such a purpose. She had her boats, which might be employed on a service of this kind. Is the court in every case, to enter upon a consideration of the exact state and condition of the ship by which a
1 The Charlotte, ubi supra; vide also The Donna Barbara, 2 Haggard, 373.
4 The Afercurius, 1 Rob., 80; vide also The Woodbridge, 1 Haggard, 74.
seizure is effected. Suppose the vessel is in dock and undergoing repairs, the circumstance would not suspend the right of the officer in command of her, to act by himself and men, in boats. The seizure may be legally effected by means of boats, or indeed, without them, by a mere summons to the parties."1
A lawful capture may be made by a ship em- J^nlay^e ployed in the convoy of merchantmen, provided it mad,e by ship
. -f ., . . -, employed m
is done without a desertion of the convoying duty, convoy.
Upon this question, the rule is thus stated by Lord Stowell; "The first and great object of the attention of an officer appointed to a service of this kind, is,the care of his convoy. He is not at liberty to desert it for the purpose of acquiring any advantage to himself, nor is he to volunteer any attack upon the enemy, if it takes him away from his first great duty. But, as far as it is consistent with that duty, he may pursue his own interest, and may attack and annoy the enemy, in any way that may appear to him advantageous. He may capture the ships and goods of the enemy, provided he does not withdraw himself from the duty of protecting the vessels under his care, and may take the benefit of prizes which he has the good fortune to make.
There is no pretence for saying, that a convoying ship may not legally and effectually make a prize as well as any other of his majesty's ships—nor is there more objection in the case of a convoying ship to constructive than to actual capture. A convoying ship is no more disabled from rendering assist.
1 The Charlotte, 1 Dodson, 220.
ance to others, than from making an actual capture herself. The service on which she is employed makes no disqualification in either case, supposing only that the capture can be effected without any breach of the principal duty, the care of the convoy."1
uw?for Where a wrong is committed in a capture, the injur? result- wrong-doer is the only person who is responsible
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ture. tor the injuries resulting therefrom.
After the cessation of hostilities between the United States and Great Britain, in 1783, but before the fact of such cessation had come to the knowledge of parties in the United States, The ,Mentor, an American ship, was destroyed, while off the Delaware, by The Centurion and Vulture, two British ships-of-war, part of the squadron of Admiral Digby. In 1799, this was made the subject of a suit against Admiral Digby, in the admiralty court in England.
In rendering judgment in this case, Lord Stowell says: "It is an entire novelty in a prize cause, to call to adjudication, not the immediate alleged wrong.doer, but a person who was neither present at, nor cognizant of the transaction, and who is to be affected in responsibility merely on this ground— that the person alleged to have done the injury was acting under his general authority; for, as to particular orders applied to this transaction, it is not pretended that any were given, or could be given. He was only the admiral on the station, and the ships which committed the alleged outrage, were
The Galen, Dodson, 429..440.