CHAPTER XII

DESTRUCTION OF PRIZE 1

SECTION 1.-ENEMY.

THE ACTEON.

(High Court of Admiralty, 1815. 2 Dod. 48.)

This was the case of an American ship, which, on the 24th of January, 1813, sailed from Norfolk, in Virginia, to the port of Cadiz, laden with a cargo of about 4,200 barrels of flour, which had been. shipped under a British 2 license, dated the 13th of August, 1812, and was to be in force for nine months from the time of its date. On the 27th of February, the vessel arrived at Cadiz; and the master having delivered his cargo, produced the license under which he had sailed to the British minister resident at that place, who granted him a further license, permitting him to ship a cargo of lawful merchandise, and to return with it to any port in the United States of America. The master having taken on board a few boxes of fruit, four quarter casks of wine, and some other trifling articles, set sail on the first of April, bound to Boston, in America. In the course of his voyage, he was boarded by several British ships, the commanders of which examined his license and permitted him to proceed on his voyage, which he accordingly did until about noon of the 12th of May, when he was captured by his Majesty's ship La Hogue, commanded by the honor

1 See "The Destruction of Merchant Ships under International Law" (1917), an admirable monograph by Sir Frederick Smith, then Attorney General, and later Viscount Birkenhead, Lord High Chancellor of Great Britain.

2 In the year 1812, the British government, being very desirous that the port of Cadiz should receive a constant supply of American flour, granted numerous licenses, authorizing any vessels, except French vessels, being unarmed, and not less than 100 tons burden, and bearing any flag. except that of France, to import into Cadiz, from any port of the United States of America, cargoes of grain, meal, flour, or rice, without molestation on account of any hostilities which might exist between his Majesty and the United States, notwithstanding such ships and cargoes might be the property of any American citizens, and to whomsoever the same might belong, and to receive their freight, and to return to any port not blockaded, upon condition that the names and tonnage of the vessels, and the names of the masters should be indorsed on such licenses at the time of the vessels clearing from their ports of lading; and such licenses were to be in force for nine months from the time of their date. These licenses were transmitted from this country, by the various merchants, brokers, or agents who applied for them, to the United States of America, where they were disposed of, and used as occasions might require.

able Captain Capel, who, on the evening of the same day, set fire to the vessel and destroyed it.

A claim was given for the ship and cargo, as the property of citizens of the United States of America, protected by licenses granted by his Majesty's government, and by his excellency the minister plenipotentiary of Great Britain at the court of Spain; and, at the instance of the claimant, a monition was issued, calling upon the captors to proceed to the legal'adjudication, of the ship and cargo. An appearance was given under protest for the captor, and the case now came on for hearing. It was understood that the captors, did not contend against a sentence of restitution, but objected to the payment of costs and damages. *

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Sir W. SCOTT. This question arises on the act of destruction of a valuable ship and cargo by one of his Majesty's cruisers. On the part of the claimants, restitution has been demanded, and there can be no doubt that they are entitled to receive it; indeed, I understand that it is not now opposed by the captor himself; but it remains to be settled what is to be the measure of restitution-how far it is to be carried. The natural rule is, that if a party be unjustly deprived of his property, he ought to be put as nearly as possible in the same state as he was before the deprivation took place; technically speaking, he is entitled to restitution, with costs and damages. This is the general rule upon the subject, but, like all other general rules, it must be subject to modification. If, for instance, any circumstances appear which show that the suffering party has himself furnished occasion for the capture, if he has by his own conduct in some degree contributed to the loss, then he is entitled to a somewhat less degree of compensation, to what is technically called simple restitution.

This is the general rule of law applicable to cases of this description, and the modification to which it is subject. Neither does it make any difference whether the party inflicting the injury has acted from improper motives or otherwise. If the captor has been guilty of no willful misconduct, but has acted from error and mistake only, the suffering party is still entitled to full compensation, provided, as I before observed, he has not, by any conduct of his own, contributed to the loss. The destruction of the property by the captor may have been a meritorious act towards his own government, but still the person to whom the property belongs must not be a sufferer. As to him, it is an injury for which he is entitled to redress from the party who has inflicted it upon him; and if the captor has, by the act of destruction, conferred a benefit on the public, he must look to the government for his indemnity. The loss must not be permitted to fall on the innocent sufferer.

This American vessel, having been invited into the service by the government of this country, had carried a cargo of corn to the port of

The Felicity, 2 Dod, 381 (1819).

Cadiz, for the use of the army, which at that time stood greatly in need of a supply. It is true that the license which had been here granted in the usual manner had afterwards been purchased for money in America, but I do not see what difference that can make in the consideration of this case; for if the license was general, which it appears to have been, it could be of no consequence who were the individuals who acted under it, provided they complied with the conditions annexed to it. There is nothing whatever to show that the parties acted otherwise than in strict conformity to the spirit and letter of the original license, signed by the secretary of state in London, and I must presume that they did so from the circumstance of their obtaining permission from the British minister in Spain to carry back a cargo to America.

Let us now look a little to what has been said in justification of the capture and destruction of this vessel. Why, it is said in the first place, that Captain Capel found the transfer of these licenses from one vessel to another rendered such cases suspicious, and made it necessary for him to use great vigilance in detecting them; but that did not at all impose upon him a necessity of destroying the vessels which were furnished with them. It is said, that the master acknowledged he had bought the license, but supposing the fact to be that he had done so, that alone would not render the transaction illegal; neither could the circumstance of the expiration of the time for which the license was granted have had any such effect, even supposing the fact to have been so, which it was not. It has been urged, too, that there were letters on board to America from the officers of Commodore Rodgers' squadron. What were the contents of those letters does not at all appear; but, in the absence of all proof to the contrary, I must presume that they were of an innocent kind, and addressed to private individuals, for if they had been of a public nature and of a dangerous tendency, I can have no doubt that they would have been preserved by Captain Capel, and exhibited in this cause.

Lastly, it has been said that Captain Capel could not spare men from his own ship to carry the captured vessel to a British port, and that he could not suffer her to go into Boston because she would have furnished important information to the Americans. These are circumstances which may have afforded very good reasons for destroying this vessel, and may have made it a very meritorious act in Captain Capel, as far as his own government is concerned, but they furnish no reason why the American owner should be a sufferer. I do not see that there is any thing that can fairly be imputed to the owner as contributing in any degree to the necessity of capturing or destroying his property, and I think, therefore, that he is entitled to receive the fullest compensation from the captor. It does not appear that Captain Capel is chargeable with having acted from any corrupt or malicious motive, and if, as I believe to have been the case, he has acted from a sense of duty and of obedience to the orders he received, I can have no doubt

that he will be indemnified upon a proper representation being made to the government. But this will not affect the right of the American claimant, whom I must pronounce to be entitled to restitution, with costs and damages, and I beg it may be understood that I do so without meaning in the slightest degree to throw any imputation on the conduct and character of Captain Capel, but merely for the purpose of giving a due measure of restitution to the claimant.1

4 In the case of The Leucade, Spinks' Prize Cas. 217, 223 (1855), The Acteon was cited by counsel.

Dr. Lushington, in considering it, said: "That case I perfectly well remember having argued, and I have had recourse to the original papers to see whether my memory failed me or not." Therefore, in the case decided by Sir William Scott, and as his successor, he thus gave the weight of his own authority to the views of that great judge:

"We must bear in mind the wide difference between the detention of a vessel under the colours of the enemy, or under neutral flags. The destruction of a vessel under hostile colours is a matter of duty; the court may condemn on proof which would be inadmissible or wholly irregular in the instance of a neutral vessel. It may be justifiable or even praiseworthy in the captors to destroy an enemy's vessel. Indeed, the bringing to adjudication at all of an enemy's vessel is not called for by any respect to the right of the enemy proprietor, where there is no neutral property on board. But for totally different considerations, which I need not now enter upon, where a vessel under neutral colours is detained, it is the right of the neutral to be brought to adjudication, according to the regular course of proceeding in the Prize Court; and it is the very first duty of the captor to bring it in if it be practicable. From the performance of this duty the captor can be exonerated only by showing that he was a bona fide possessor, and that it was impossible for him to discharge it. No excuse for him as to inconvenience or difficulty can be admitted as between captors and claimants. If the ship be lost, that fact alone is no answer; the captor must show a valid cause for detention as well as the loss. If the ship be destroyed for reasons of policy alone, as to maintain a blockade or otherwise, the claimant is entitled to costs and damages. The general rule, therefore, is, that if a ship under neutral colours be not brought to a competent Court for adjudication, the claimants are, as against the captor, entitled to costs and damages. Indeed, if the captor doubt his power to bring a neutral vessel to adjudication, it is his duty, under ordinary circumstances, to release her." The Leucade, Id. 221, 222 (1855). The Felicity, 2 Dodson 381, 386, 387 (1819), was an American ship captured by the British man-of-war Endymion on January 1, 1814, during the war between Great Britain and the United States. The Felicity was destroyed, as stated in the report, "after her captain and crew, with their baggage, were removed on board The Endymion." The British man-of-war was watching an American ship of war, The President, "with intent to encounter her," and the commander of The Endymion felt that he could not spare any of his crew to carry The Felicity into a British port. After stating at length these circumstances, Sir William Scott held that:

"Under this collision of duties nothing was left but to destroy her, for they could not, consistently with their general duty to their own country, or indeed its express injunctions, permit enemy's property to sail away unmolested. If impossible to bring in, their next duty is to destroy enemy's property. Where doubtful whether enemy's property, and impossible to bring in, no such obligation arises, and the safe and proper course is to dismiss. Where it is neutral, the act of destruction cannot be justified to the neutral owner, by the gravest importance of such an act to the public service of the captor's own' state; to the neutral it can only be justified, under any such circumstances, by a full restitution in value. These are rules so clear in principle and established in practice, that they require neither reasoning nor precedent to illustrate or support them."

THE LUSITANIA.

(District Court of the United States, S. D. New York, 1918. 251 Fed. 715.) In Admiralty. In the matter of the petition of the Cunard Steamship Company, Limited, as owner of the steamship Lusitania, for limitation of its liability. Petition granted, and claims dismissed, with

out costs.

MAYER, District Judge. On May 1, 1915, the British passenger carrying merchantman Lusitania sailed from New York, bound for Liverpool, with 1,257 passengers and a crew of 702, making a total of 1,959 souls on board, men, women, and children. At approximately 2:10 on the afternoon of May 7, 1915, weather clear and sea smooth, without warning, the vessel was torpedoed and went down by the head in about 18 minutes, with an ultimate tragic loss of life of 1,195. Numerous suits having been begun against the Cunard Steamship Company, Limited, the owner of the vessel, this proceeding was brought in familiar form, by the steamship company, as petitioner, to obtain an adjudication as to liability, and to limit petitioner's liability to its interest in the vessel and her pending freight, should the court find any liability. * * *

sense.

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So far as equipment went, the vessel was seaworthy in the highest The proof is absolute that she was not and never had been armed, nor did she carry any explosives. She did carry some 18 fuse cases and 125 shrapnel cases, consisting merely of empty shells, without any powder charge, 4,200 cases of safety cartridges, and 189 cases of infantry equipment, such as leather fittings, pouches, and the like. All these were for delivery abroad, but none of these munitions could be exploded by setting them on fire in mass or in bulk, nor by subjecting them to impact.

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Having thus outlined the personnel, equipment, and cargo of the vessel, reference will now be made to a series of events preceding her sailing on May 1, 1915. On February 4, 1915, the Imperial German government issued a proclamation as follows:

"Proclamation.

"1. The waters surrounding Great Britain and Ireland, including the whole English Channel, are hereby declared to be war zone. On and after the 18th of February, 1915, every enemy merchant ship, found in the said war zone will be destroyed without its being always possible to avert the dangers threatening the crews and passengers on that

account.

"2. Even neutral ships are exposed to danger in the war zone, as in view of the misuse of neutral flags ordered on January 31 by the British government, and of the accidents of naval war, it cannot always be avoided to strike even neutral ships in attacks that are directed at enemy ships.

Parts of the opinion are omitted.