smugglers. The pilot of the Fly swore that he considered the capture amicable. Another witness swore to the same effect as well as to other circumstances of fraud. On the whole the capture was pronounced collusive, and the decree below affirmed. The George (1817), 2 Wheat. 278. "Whether the commander of a squadron be liable to individuals for the trespasses of those under his command is a question on which it would be equally incorrect to lay down a general proposition either negatively or affirmatively. In case of positive or permissive orders, or in case of actual presence and co-operation, there could not be a doubt of his liability. But on the other hand, when we consider the partial independence of each commander of a vessel, and that the association is not a subject of contract, but founded on the orders of their government, which leave them no election, it would be dangerous indeed, and dampening to the ardour of enterprise, to trammel a commander with fears of liability, where it is not possible, from the nature of the service, and the delicate rules of etiquette, for him always to direct or control the actions of those under his command. We feel no inclination to extend the principle of constructive trespass, and will leave each case to be decided on its own merits as it shall arise. Where a capture has actually taken place with the assent of the commodore, express or implied, the question of liability assumes a different aspect; and the prize-master may be considered as bailee to the use of the whole squadron who are to share in the prize money. To this case there is much reason for applying the principle, that qui sentit commodum sentire debet et onus; but not so as to mere trespasses unattended with a conversion to the use of a squadron. "The case of the commander of a single ship varies materially from that of the commander of a squadron, and the rigid rules of liability for the acts of those under our command may, with more propriety, be applied to him. The liability of the owners of a privateer for the acts of their commanders has never been disputed. And it is because they are left at large in the selection of a commander, and are not permitted to disavow his actions as being unauthorized by them. So, in the case of a commander of a ship, the absolute subordination of every officer to his command attaches to him the imputation of the marine trespasses of his subalterns on the property of individuals, when acting within the scope of his commands. Orders even giving a discretion to a subordinate in such cases is no more than adopting his actions as the actions of the commander; and placing him in a command which requires skill, integrity, or prudence, makes the commander the pledge to the individual for his competence to discharge the duties of the undertaking. "With these views on the subject we should have found no difficulty in deciding on the liability of Captain Smith, of the Congress, had he been a party to this libel, and the facts of the case had made out a marine trespass in himself, or in Lieutenant Nicholson, or a want of competence or due care in the latter to discharge the command assigned him. But we are of opinion that no one act is proven in the case which did not comport with the fair, honorable, and reasonable exercise of the rights of war." The Eleanor (1817), 2 Wheat. 345, 356, Johnson, J., delivering the opinion of the court. It was claimed in a certain case that the captors had, by their misconduct, forfeited the rights given by their commission, so that the condemnation ought to be to the United States. Just what the misconduct consisted in does not appear. The court thought that the capture was made in neutral waters, but it also thought that the captured vessel had forfeited the neutral protection by beginning the hostilities. It is evident, therefore, that there were other irregularities in the case. Mr. Justice Story, delivering the opinion. of the court, said: "There can be no doubt, that if captors are guilty of gross misconduct, or laches, in violation of their duty, courts of prize will visit upon them the penalty of a forfeiture of the rights of prize, especially where the Government chooses to interpose a claim to assert such forfeiture. Cases of gross irregularity, or fraud, may readily be imagined in which it would become the duty of this court to enforce this principle in its utmost rigour. But it has never been supposed that irregularities, which have arisen from mere mistake, or negligence, when they work no irreparable mischief, and are consistent with good faith, have ordinarily induced such penal consequences. There were some irregularities in this case; but there is no evidence upon the record from which we can infer that there was any fraudulent suppression, or any gross misconduct inconsistent with good faith; and, therefore, we are of opinion. that condemnation ought to be to the captors." The Anne (1818), 3 Wheat. 435, 448. Search and seizure being lawful processes, the burden is on the neutral to show that they were improperly employed; but a seizure presumptively lawful may be rendered illegal by subsequent wrongful acts of the captor, such as breaking open hatches and removing merchandise and depriving the master of the ship's papers. Proceedings to condemn must be in all essentials legal, and the omission of any important factor vitiates the judgment. The Nancy (1902), 37 Ct. Cl. 401. See The Sally (1902), id. 542; The Snow Thetis (1902), id. 470. 6. CAPTURE IN NEUTRAL TERRITORY. § 1211. See Neutrality, infra, §§ 1334-1335. "In the case of the Anna, captured by a British cruiser in 1805, near the mouth of the Mississippi, and within the jurisdiction of the United States, the British court of admiralty not only restored the captured property, but fully asserted and vindicated the sanctity of neutral territory by a decree of costs and damages against the captor. If a neutral state neglects to make such restitution, and to enforce the sanctity of its territory, but tamely submits to the outrages of one of the belligerents, it forfeits the immunities of its neutral character with respect to the other, and may be treated by it as an enemy. Phillimore on Int. Law, vol. iii, §§ 155-157; the Vrow Anna Catharina, 5 Rob. 15; the Anna, 5 Rob. 348; Heffter, Droit International, §§ 146-150; Bello, Derecho Internacional, pt. ii, cap. vii, § 6; Riquelme, Derecho Púb. Int., lib. i, tit. ii, cap. xvii.” Halleck's Int. Law (3d ed., by Baker), II. 171. During a war between the United States and another power a capture as prize of war may be made within the territorial waters of the United States at any place beyond low-water mark. The Joseph (1814), 8 Cranch, 451, 455. The seizure of a vessel by the naval force of the United States in waters belonging to a friendly power, though an offense against that power, is a matter to be adjusted between the two Governments and not within the cognizance of the court, and does not render unlawful judicial proceedings against the vessel, instituted after her arrival within the jurisdiction of the United States. Ship Richmond v. United States (1815), 9 Cranch, 102; The Merino (1824), 9 Wheat. 391. It was alleged that certain property, libeled as British and enemy property, was captured in Spanish and neutral waters. The court said that as there was not sufficient evidence of the truth of this allegation, it was unnecessary to say what influence the fact, if established, might have had on the decision of the court. Cargo of the ship Hazard v. Campbell (1815), 9 Cranch, 205. A British vessel and cargo were captured by the American privateer Ultor, near the shore of the Spanish part of the island of San Domingo, and were brought in for adjudication. A claim of neutral territory was set up by the Spanish consul at New York, merely by virtue of his office, without the special authority of his Government. Held, that his official character gave him no authority to make such a claim. The Anne (Mar. 7, 1818), 3 Wheat. 435. "There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign." The Anne (Mar. 7, 1818), 3 Wheat. 435, 447. Where it is claimed by a foreign minister that a seizure made by an American vessel was a violation of the sovereignty of his Government, and he satisfies the President of the fact, the latter may, where there is a suit depending for the seizure, cause the AttorneyGeneral to file a suggestion of the fact in the cause, in order that it may be disclosed to the court. Wirt, At. Gen., 1821, 1 Op. 504. "A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void." The Anne (1818), 3 Wheat. 435, 447; The Lilla, 2 Sprague, 177; The Sir William Peel, 5 Wall. 517; The Adela, 6 Wall. 263; Wheaton, Dana's note, 209; Judge Holmes's note to 1 Kent, 118. If a ship or cargo is enemy property, or if either be otherwise liable to condemnation, the circumstance that the vessel at the time of the capture was in neutral waters would not, by itself, avail the claimants in a prize court. It might constitute a ground of claim by the neutral power whose territory had suffered trespass for apology or indemnity. But neither a hostile belligerent, nor a neutral acting the part of such belligerent, can demand restitution of captured property on the sole ground of capture in neutral waters. The Sir William Peel, 5 Wall. 517; The Adela, 6 Wall. 266. As the United States, in the case of American vessels seized by French privateers and carried into Spanish ports and held there, pending prize proceedings in French territory, expressly relinquished any claim against Spain and looked to France alone for indemnity, it must be assumed that the United States, in the exercise of impartial justice, tacitly relinquished similar claims against Sweden and the Netherlands; but where a neutral nation permitted American vessels to be condemned by French consuls in its territory, or permitted such vessels to be seized there, it alone would be responsible, and France would be released. The Happy Return (1902), 37 Ct. Cl. 262. In 1881 Mr. Evarts complained to the Chilean minister that the American schooner Mary E. Hall had been fired at, brought to, and searched by the Chilean man-of-war Amazonas in Colombian waters. Mr. Evarts expressed the conviction that the forcible search of a vessel of a friendly state within the waters of another friendly state, under circumstances imperiling the lives of those on board and after conclusive ascertainment of her nationality and of her destination to a neutral port under regular papers, would be the subject of such frank and positive action on the part of Chile as would remove the case from the sphere of diplomatic action. Mr. Evarts added that the failure of the authorities of the State of Panama to find in the occurrence any ground of grievance, because it took place in the jurisdictional waters of that State, was not conceived to preclude action on the part of the United States, inasmuch as the forcible search of the vessel under the circumstances narrated would have been equally contested by the United States if it had been committed on the high seas. Mr. Evarts, Sec. of State, to Mr. Asta Buruaga, Chilean min., Mar. 3, 1881, MS. Notes to Chilean Leg. VI. 259. "All American goods in American bottoms will be subject to capture by Spanish cruisers on the high seas and in all but neutral waters." Mr. Moore, Act. Sec. of State, to Mr. Huntley, May 3, 1898, 228 MS. |