« PreviousContinue »
In the former edition of this work the established T',c doctrine rule of non-delivery of captured property to claim- cry fully slants, on bail, was briefly stated, and the authorities^onofthe cited by which the rule was established. United states
*' 4 District Court
In the case of The Amy Warwick, on (tie claim; of Massachuof Pliipps, after the court had allowed the claimants' to introduce further proof of property, a motion was made for the delivery to them of the property which they claimed, on appraisement and bail. The motion was opposed by the captors, who, on their part,' moved for a sale of the property. In denying the motion for-the delivery of the property on bail, and ordering instead, its sale, the learned judge thus aggregates the objections to the former practice, which he said had " always weighed with prize-courts:" "Before the hearing in preparatoi*io, it cannot well be Reasons for judicially known that the claimants are not enemies, ;n tj,'o case of or acting for enemies; or that if not so, that they wtnitkk have such absolute title in the property as to be the persons to whom it should be restored, in case it should be decided to be no prize, and the captured property may itself be evidence. If, on the hearing, their claim remain in doubt on any of these points, why should they take the property rather than the captors? The court must be careful to deliver the property to none but actual owners, and persons who would not pass it to an enemy for whom they might act. There arc other difficulties attending this course in the general. It throws on the captors the risk of the sufficiency of the bondsmen at the time, and their continued solvency until a final decision in the appellate court. It gives the claimants the choice of al tiding or not abiding by the appraisement. If it is low, they will adopt it, and
give bonds, and so make a profit, at the expense of the captors. If the appraisement is to the full value, 'they may decline to give the bonds. And there is always danger of under valuation, not only by fraud, and by the pressure of interests in the trade, but from erroneous principles of estimation. A public sale is the best and fairest proof of value, and the funds in the registry, to be delivered to the parties finally decided to be entitled to it, is the most satisfactory course, where there are no special circumstances."
Reasons for It will be seen that all of these obiections to the
the rule of ... - . . i-i
non-deiivory delivery of captured property to claimants, on bail, rabieto'i with the single exception of that which refers to the delivery on sufficiency and continued solvency of the stipulators,
payment of * , Jit I
appraised are alike applicable to the delivery of such property to claimants, upon payment into court of its appraised value—a practice no less calculated to defeat the great end of maritime capture.
THE CAPTORS ENTITLED AS DISTRIBU-
New rules of By the third section of the Act of Congress of byre^nt°act July lfth,-1862, material alterations are effected in of Congress, the mode of distribution of the moiety of the proceeds of maritime captures, accruing to naval captors.
By the provisions of this section, after deducting one-twentieth part of the prize money awarded to the capturing vess'el, for the commander of the fleet or squadron, to which she is attached, if thus attached, and two-twentieths for the commander of the capturing vessel, if attached to ?. squadron, and three-twentieths if the ship was acting independently of any superior officer, the residue of the prize money awarded to the capturing vessel is to be "distributed and apportioned among all others doing duty on board, and borne upon the books, according to their respective rates of pay in the service."
By the fourth subdivision of the same section, vessels within
-, /> ,i . • It- nsismal distance
vessels or the navy within signal distance ot entitled to another making a prize," arc entitled to share inshare-the prize; and it would seem, by the provisions of this subdivision, that in the event of two or more vessels in the navy being entitled, as joint-captors, after deducting the flag-officer's one-twentieth, the entire residue of the captors' moiety is to be distributed among all the officers and men of the ships entitled, including the commanders, according to the rates of pay of all on board, who are borne ■ upon the books.
By the fifth section of this act, forfeiture of the Forfeiture of share of prize money to whicli a commander might commander's
i J a share of prize
be entitled as the result of a capture, is declared to money,forcerbe the consequence of a neglect to perform thetam neglect* duties therein prescribed, as follows:
"That the commanding officer of every vessel, or the senior officer of all vessels of the navy, which shall capture or seize upon any vessel or vessels, as prize, shall carefully preserve all papers and writings found on board, and transmit the whole of the originals, unmutilated, to the judge of the district to which such prize is ordered to proceed, wit h the necessary witnesses, and a report of the circumstances attending the capture, stating the names of vessels claiming a share thereof; and the
commanding officer of every vessel in the navy entitled to or claiming an award of prize money, shall, as early as practicable, after the capture, transmit to the navy department a complete list of the officers and men of his vessel, entitled to share, inserting thereon the quality of every person rating."
Bv the seventh section of the same act, forfeiture of prize money is declared to be also a portion of the penalty upon any person in the navy who shall "take out of any prize, or vessel seized as prize, . any money, plate, goods, or any part of her equipment, before the same shall be adjudged lawful prize by a competent court, unless it be for the better preservation thereof, or absolutely necessary for the use of any of the vessels or armed forces of the United States." Armed ves- By the sixth section of the act, " armed vessels in ^7the service of the United States, which shall make entitled as if a capture," or be within signal distance of a vessel
in the navy. 1 ° Til
of the navy, when making a capture, are declared to be " entitled to ail award of prize money, in the same manner as if such vessels belonged to the navy.
captures not entitled in
Merchant ves- Merchant vessels making a capture are not en
scls making . ,. t i P J I
titled, by strict law, to any share whatever ot the strict law— proceeds of the captured property; but it has not but in practice |H.en ^j,e practice to exact in such cases the local
a share is # ■» m 0
awarded them right of the government to the entire proceeds, but, wluiTh^meri- oii the contrary, to award the merchant captor4* a acteTonhe^ portion of the proceeds, and sometimes even the service. whole, according to the circumstances of the case, and the meritorious character of the service performed.
By this practice it is understood that the'concession of the strict legal rights of the government is optional with the navy department, and the courts in such cases, act upon such concession, in their decrees of distribution.
Such was the recent case of The Agnes II Ward, captured by the merchant California steamer, Northern Light, and adjudicated in the District Court of the United States for the District of New York.
A lieutenant in the navy of the United States happened to be on board the merchant steamer as passenger, and took part in the capture. Upon the concessions of the secretary of the navy, the court decreed three twentieths of the captor's moiety to the lieutenant on board, as if in command of a single ship, acting independently, and the residue of the captor's moiety to the merchant vessel, to be distributed in designated proportions among owners, officers, and men.
Who are the lawful distributees of prize money as captors or joint captors, is settled by the final decree of distribution of the prize-court.
This decree of distribution is not, as it was prior Decree of diato the Act of Congress of March 25th, 1862, a de- ^ow required cree of detailed distribution setting forth not onlvtobe rendered the vessels entitled, but the individuals, and the March 25th, amount to be paid to each. 18G2'
By the provisions of that act, the decree of final distribution, now only determines what ships are entitled, and whether the captured vessel was of superior, equal, or inferior force to the capturing vessel.
This-decree is to be based upon the report of