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length of time that the captors may be fairly presumed to have lost or been deprived of such evidence as they might have adduced in exculpation, a monition will not issue against them.1 • To send the When a maritime capture is complete, it is the veSent port" duty of the captors to send the vessel into some convenient port for adjudication. What is intended by convenient port has been heretofore considered.2
With prize- To this end it is their duty to put on board the
master and i i i • • , j Hi •
prize crew, captured ship a proper prize-master, and a sumcient unless captur- pr;zt) crew to navigate the vessel into port, unless,
ed crew con- 1 o r > »
sent to navi- indeed, the captured crew consent to perform the g' service, which, however, they are not in general
bound to do.
If they do consent, they thereby exonerate the captors from all liability for loss or damage resulting from improper or unskilful navigation.8 If any cruelty or unnecessaiy force, such as putting in irons or handcuffs, is used towards the crew of a neutral ship captured, a prize court will decree damages to the injured parties.4 Captors pro- Under peculiar circumstances, and in cases of
hibited from 1 . .
converting overruling necessity, captors may, without being breaking bulk, thereby deprived of the effects of a lawful posses
1 The Purissima Conception, 6 Rob., 45. •
• The Hvldah, 3 Rob., 235; The Madonna del Burso, 4 Rob.. 169; The St. Juan Baptista, 5 Rob., 33; The Wilhelmberg, 5 Rob., 143; The JSlnebe, 5 Rob., 173; The Lively, 1 Gall, 31",; The Washington, 6 Rob, 275; The Principe, Edwards, 70.
s Wilox vs. Union Ins. Co., 2 Binney, 574; The Resolution, 6 Rob., 13; The Pennsylvania, 1 Acton, 33; The Alexaruin: 1 Gall., 532, and S. C, 8 Cranch, 169.
4 The St. Juan Baptista, 5 Rob., 33, The Die Frie Damcr, 5 liob., 357.
sion, laud or even sell the prize goods. But in all copt from oversuch cases, the burden is upon them, to satisfy the aity. court of their perfect good faith, and the circumstances giving rise to the necessity, otherwise any and every spoliation or damage to the captured ship, any breaking bulk, or conversion of the property, will deprive them of all benefit of capture, and subject them to a decree for damages, costs, and expenses.1
The master, and principal officers, and some of the Duty of °?p
i It ii - n- 8 Bon<*m
crew of the captured vessel, should, in all instances, master and of
be sent with the vessel into the port of adjudica- some8' oTthe
tion. This is a settled rule of prize courts, and the SShiredw
importance of its invariable observance cannot- be8eL
During the war of 1812, between the UnitedGreat TMportbtates and Great Britain, this rule was enforced by rule, and efthe special instructions of the President, and the ^tion°f lt? TM>" violation of these instructions involved a loss of all benefit of capture. Captors should understand that by the established rules of prize courts, the examination of the master and officers, and if possible some of the crew, of the captured vessel, is the initiatory step in proceedings for condemnation, and without such examination (except by special permission in rare cases, showing physical impossibility), no proceedings can be taken.3
1 The Concordia, 2 Rob., 102; VEole, 6 Rob., 220; The Washington, 6 Rob., 276; Clerk's Praxis, 163; Del Col. vs. Arnold, 3 Dall., 333; The Maria, 4 Rob., 348; The liendsberg, 6 Rob., 142.
1 Th". Eliza and Katy, 6 Rob., 185; The Henriek and Maria, 4 Rob., 43, 57.
On arrival at As soon as the vessel or property captured arration, first rives at the port of adjudication, it is the duty of the adoUraity7 tne captors (therein represented by the prize-inaste' if the prize is thus sent and not carried into port b} the captors themselves), forthwith to give notice of the fact of arrival to the admiralty judge, or to the prize commissioners of the port or district, and at To deliver up i\ie same time to deliver into the hands of the iudffe
all papers and , « 0
doeumouts or his commissioners, all the papers and documents board. 0" found on board the captured vessel, accompanied with affidavit by an affidavit that the papers and documents thus in the precise delivered up are in the same condition as when they found1 when were taken, without fraud, addition, subduction, or taken. embezzlement. The prize property is thereafter in the'custody of the court, and the duty of the captors is ended until action on their part becomes necessary to procure an adjudication.1
The next step in the proceeding is taken by the commissioners of prize, which leads to a consideration of the powers and duties of the prize commissioners.
Prize Commis- Prize commissioners are officers of the court of Their appoint- admiralty. They are appointed and commissioned ^nd dutaT"1' by court, and hold their office during the pleasure of the court, or until the termination of the war which occasioned their appointment; and the court may appoint as many in number as the exigencies require. The purpose of their appointment is to relieve the court from the performance of many of the onerous duties to which the exercise of prize
'Ordonnancc de la Marine, 1681, Til. 9, Art. 21; Coll. Mar., jurisdiction of necessity gives rise. In the name of the court they receive possession of the prize property when brought within its jurisdiction, as well as the papers and documents found and taken with it; and it is their duty to enclose the papers and documents in a secure enclosure, and the same to seal with their proper seal, and then to lodge them in the registry of the court. So, too, with regard to the prize property, it is their duty to place their seal upon the hatches of the vessel, and upon whatever doors, coverings or enclosures of any kind are used to shelter and protect the cargo, so that the same cannot be tampered with without violation of their seal. It is their duty to appoint proper custodians to be left in the charge and safe-keeping of the prize property, so long as the same shall remain in court, or until the possession of the commissioners shall be superseded by that of the ordinary officer of the court, the marshal.
The papers, and documents, and prize property, To take thfe being thus secured, in the custody of the court as tho'master.cfthe guardian of the public interests, it is next the prfze%revf duty of the commissioners to proceed without any delay whatever, that is to say, as soon as possible after the arrival of the vessel, to take the examination of witnesses, who are to be none others than the master, officers and crew of the captured vessel, or persons actually on board at the time of the capture. The examination is always confined to such persons in the first instance, and is never extended save by special permission or upon an order for further proof. Inasmuch as the hearing before the court is Rules as to
n ,i -, examination
to be primarily, in all cases, upon the papers and. 0f witnesses, documents, and the examination of the persons on
board brought in with the prize, and upon no other evidence whatever, the rules of the court require a strict adherence to all the prescribed formalities in the taking of this testimony. These rules are as follows:
First. The witnesses must be produced before the commissioners in succession, so that all may be examined, before the examination of any one is transmitted to and filed with the court. After such transmission no other witness can be examined without a special order of the court.
Second. The witnesses must be examined separately and apart from each other, and without the instruction or presence of counsel, or of any other person than the commissioners, their clerk, secretary or actuary, and agents of the parties, other than professional; and during the examination the witnesses are not allowed to communicate with or be instructed by counsel. If professional counsel were allowed to be present at the examination, and especially if they were allowed to take notes of the testimony, the purpose of the rule, which rigidly requires the witnesses to be examined apart from each other, might be entirely defeated.
Third. The examination of the witnesses is, in all cases, to be on the standing interrogatories in preparatorio, as they are denominated. The standing interrogatories used in the English courts of admiralty, have been drawn with great care and precision, and contain sifting inquiries upon every point which may possibly affect the question of prize. These interrogatories, which may be found in 1 Robinson's Reports, 381, have served as a