Del Col v. Arnold (1796), 3 Dall. 333.

At

The facts in this ease (Del. Col v. Arnold) were as follows: A French
privateer had captured as prize, on the high seas, an American brig,
called the Grand Sachem and owned by the defendant in error.
the time of taking possession of the brig, a sum of money was re-
moved from her into the privateer; a prize master and several mar-
iners were put on board of her, and were directed to steer for
Charleston. On their way to Charleston a British frigate captured
the privateer and gave chase to the prize; whereupon the prize
master run her into shoal water, and there she was abandoned by
all on board, except a sailor originally belonging to her crew, and a
passenger. In a short time she drove on shore, was scuttled, and
plundered. The money taken from her by the French privateer,
and taken in the latter by the British frigate, had been condemned
in Jamaica. A libel was filed in the district court of South Carolina
by the defendant in error against Del Col and others, the owners of
the French privateer. When the marshal came with process against
the brig, she was in the joint possession of the custom-house officers
and the privateer's men, the latter of whom prevented the execution
of the process. Thereupon a ship and cargo, a prize to the privateer,
lying in the harbor of Charleston, were attached by the libelant, and
sold by agreement between the parties, and the proceeds paid into
court, to abide the issue of the suit. The district court pronounced
a decree in favor of libelant for the full value of the Grand Sachem
and her cargo, with interest at 10 per cent from the day of capture;
declared that the proceeds of the ship Industry and her cargo, at-
tached in this cause, be held answerable to that amount;" and
directed that the defendant in error should enter into a stipulation to
account to the plaintiffs in error for the money condemned as prize to
the British frigate, or any part of it, that he might recover as neutral
property. This decree was affirmed by the circuit court and in turn
by the Supreme Court. So far as this case may be interpreted to
lend support to the idea that the courts of a neutral can take cogni-
zance of the legality of belligerent seizure, it has been severely
criticized by the Supreme Court (L'Invincible, 1 Wheat. 238), and
pronounced to be “glaringly inconsistent" with the acknowledged
doctrine of that court.

66

The right to abandon and recover for a total loss depends upon the actual state of facts at the time of the offer to abandon, and not upon the state of the information then received. Hence where, on information of capture, an offer to abandon was made on July 19, 1806, but it was afterwards learned that a final sentence of restitution had been made on the 9th of the same month, it was held that the plaintiff could not recover for a total loss, though the actual restitution was not made till several hours after the offer to abandon.

Marshall v. Delaware Ins. Co. (1808), 4 Cranch, 202.

The commander of a United States ship of war is answerable in damages to persons injured in the execution by him of his instructions of the President of the United States which are not warranted

by law. Hence, it was held, in a case of capture under the act of February 9, 1799, that the captor was answerable in damages for seizing on the high seas a vessel from a French port, an act not warranting such seizure, though the instructions of the President authorized it to be made.

Little v. Barreme (1804), 2 Cranch, 170.

Whenever an officer seizes a vessel as prize he is bound to commit her to the care of a competent officer and crew, not because the original crew, when left on board, in case of seizure of the vessel of a citizen or neutral, are released from their duty without the assent of the master, but because of a want of the right to subject the crew of the captured vessel to the authority of the captor's officer. If a vessel were seized as prize and no one put on board but the prizemaster, without any undertaking of the original ship's company to navigate her under his orders, the captor might be liable for any loss that followed from insubordination of the crew.

The Eleanor, 2 Wheat. 345.

The Isabella having been condemned by the Supreme Court of the United States as a British vessel falsely and fraudulently covered by Spanish documents, and consequently held to be good prize of war (6) Wheat. 1-100), and a claim having been made by Alonzo Benigno Munoz for reimbursement by Congress, and the Attorney-General having been requested by the Judiciary Committee to communicate information upon the subject, an answer was filed approving the reasons of the action of the executive and the judiciary.

Wirt, At. Gen., 1822, 1 Op. 536.

See Dana's Wheaton, § 388, note 186.

A captor may, under imperative circumstances, sell the captured property and subject the proceeds to the adjudication of a court of prize. The orders of the commander-in-chief not to weaken his force by detaching an officer and crew for the prize, or his own deliberate and honest judgment, exercised with reference to all the circumstances, that the public service does not permit him to make such detachment, will excuse the captor from sending in his prize for adjudication. But if no sufficient cause is shown to justify the sale, or if the captor has unreasonably neglected to bring the question of prize or no prize to an adjudication, the court may refuse to proceed to an adjudication and may award restitution, with or without damages, upon the ground of forfeiture of rights by the captor, although his seizure was originally lawful.

If the captor should neglect to proceed at all, the court may, upon a libel filed by the owner for a marine trespass, grant a motion to

proceed to adjudication in a court of prize, or refuse it and at once award damages. It is the duty of the captor, under the law of nations (affirmed by act of Congress), to send captured property in for adjudication by a court of his own country having competent jurisdiction.

Jecker v. Montgomery, 13 How. 498.

Wanton capture without probable cause subjects the captor to damages.

The Thompson, 3 Wall. 155; the Dashing Wave, 5 Wall. 170.

The British ship Restormel, laden with coal for the Spanish fleet, and which had followed the fleet from Porto Rico to Curaçao, was captured by a United States cruiser while endeavoring to enter the port of Santiago de Cuba, where the Spanish fleet then lay. Judge Locke, of the United States district court for the southern district of Florida, although he considered the ship liable to capture and her cargo, at least, to condemnation, being desirous to give the owners the benefit of every doubt, released the ship, but allowed nothing for freight or for costs or expenses. With reference to a claim which the master of the Restormel afterwards sought to make for the value of provisions supplied by him to the American prize crew, the Navy Department expressed the opinion "that the item of claim for provisions consumed by the prize crew should be considered, together with the claims for damages presented to the court, as a loss which resulted from the employment of the ship at the time of her capture and for which the captors were not liable."

Mr. Day, Sec. of State, to Sir Julian Pauncefote, British ambass., Aug. 6, 1898, MS. Notes to British Leg. XXIV. 276.

A claim was made by the master of the British vessel E. R. Nickerson for damages and losses consequent upon her alleged wrongful capture and detention by an American man-of-war. It appeared that the prize court, in discharging the vessel, decided that there was reasonable cause for capture. The Attorney-General held that, with the rendition of its decision, the jurisdiction of the prize court ended, but suggested that there appeared "to be ample jurisdiction in the Court of Claims to determine the case, either upon petition of the claimant or by reference and transmission from the Department of State." In this relation the Attorney-General called attention to section 1068 of the Revised Statutes of the United States, and to the authorities there cited in the margin, especially to the case of the United States v. O'Keefe, 11 Wall. 178.

Mr. Hay, Sec. of State, to Sir Julian Pauncefote, British ambass., Dec. 6, 1898, No. 1279, MS. Notes to British Leg. XXIV. 397.

See, also, same to same, No. 1409, April 17, 1899, id. 498.

The court having ordered in The Paquete Habana, 175 U. S. 677, that the proceeds of the vessels and cargoes should be restored to the claimants with compensatory and not punitive damages and costs, and it appearing that the damages allowed were excessive, the cases were remanded to the district court for further proceedings. It was also ordered that, under the circumstances of the case, the decree should be entered against the United States and not against the captors individually.

The Paquete Habana (1903), 189 U. S. 453.

(2) MEASURE.

§ 1227.

In a suit by the owners of captured property, lost through the fault and negligence of the captors, the value of the captured vessel, and the prime cost of the cargo, with all charges, and the premium of insurance, were allowed in ascertaining the damages.

The Anna Maria, 2 Wheat. 327.

A vessel and cargo having been condemned under the nonimportation laws, and a question having arisen as to whether damages should be computed from the date of the bond given for the appraised value of the cargo, or from the decree of condemnation of the district court, it was held "that the damages should be computed at the rate of six per centum on the amount of the appraised value of the cargo, including interest from the date of the decree of condemnation in the district court."

The Diana (1818), 3 Wheat. 58.

On an illegal capture the original wrongdoers may be made responsible beyond the loss actually sustained in case of gross and wanton outrage; but the owners of the offending privateer, who are only constructively liable, are not liable for punitive damages.

The Amiable Nancy, 3 Wheat. 546.

See Talbot v. Three Brigs, 1 Dall. 95.

If property has been wrongfully brought into the United States, and the duty paid by a wrongful captor, and a decree of restitution is made after a sale, the captor is liable on such a decree only for the balance, without interest, after deducting the amount paid as duties. The Santa Maria, 10 Wheat. 431.

Prize courts properly deny damages or costs where there has been probable cause for seizure. Probable cause exists where there are circumstances sufficient to warrant suspicion, though not sufficient to warrant condemnation.

The Thompson, 3 Wall. 155.

See, also, The Dashing Wave, 5 Wall. 170; Lushington, Prize Law, §§ 25, 94.

A Spanish vessel seized as a prize on April 22, 1898, when there was probable cause for the seizure, but which was exempted from seizure and condemnation by the subsequent proclamation of April 26, is not entitled to damages or costs on restitution. Decree (D. C. 1898) 87 Fed. Rep. 927, reversed.

The Buena Ventura v. United States, 175 U. S. 384.

"In all prize cases where claims for indemnity were presented to the Department of State by foreign governments on behalf of their subjects for seizures made by our war vessels [during the war with Spain], the rule adopted was to reject claims for indemnity in cases where the prize court had found probable cause, and to refer to the Court of Claims all claims for indemnity in cases where probable cause may not be found."

Mr. Hay, Sec. of State, to Attorney-General, Jan. 5, 1900, 242 MS. Dom.
Let. 133.

III. JURISPRUDENCE.

1. PRINCIPLES OBSERVED.

§ 1229.

On questions of belligerent and neutral rights the Supreme Court will recognize the decisions of the courts of every country, so far as they are founded on a law common to every country, not as authorities, but with respect. The decisions of the courts of every foreign civilized land show in a given case how the law of nations is understood in such lands, and will be considered in adopting the rule which is to prevail in the United States.

Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191.

"Without taking a comparative view of the justice or fairness of the rules established in the British courts, and of those established in the courts of other nations, there are circumstances not to be excluded