formerly directly into their possession. On the other hand, however, both
these vessels and their cargoes were sold at the petition of the Queen's
Proctor, acting therein as the captor's agent, the decrees or instruments for
effecting the sales were taken out by him, and by him entrusted to tho
marshal with directions to carry them into execution. Again, when tho
vessels and their cargoes had been sold, and the marshal brought in his
accounts of expenses relating thereto, they were sent by mo to tho Queen's
Proctor to ascertain if he had any objections to offer to them on behalf of tho
captors, or to an order being made upon tlio Paymaster-iJeneral for the paj -
ment thereof out of the gross proceeds. No objections were made by him to
the accounts, and they were accordingly paid in tho manner stated above.
Every step relating to the sale of these vessels and cargoes was done with
the full knowledge and sanction of the Qupr>n's Proctor; and in his bill of
1856
Jiili/ 1.
Thb
Fbaxciska.
TUE Uxiox.
Sir John
Patteson.
430
THi: FKANf ISKA — TIIK UNION.
18:)C
Julij 1.
The
Fkanciska.
TuK Union.
Sir John
Pattcson.
If iiiiisi jilways l)i> Lonio in iniiid tliat these cases are cases of
rovcrsiil 071 njipoal, decrooinf^ Hiniplo restitution of the jirojicrty or
its i>rocoe(ls. The captors am, tliereforo, treated as l)eing bond fide
in possession of tlie property, during tlie time of litigation, and ar<
cniitlcd to .ill rights, allowances and incidents attaching to such
/loiu't /i(/i' ])oss('Ssion, tliough the legal right to such possession may
ultimately bo determined against them. The distinction between
ho)id fide possession, and legal right to possession, as regards prize
cases, is in itself sufficiently obvious, and it is fully and clearly
explained by Lord Stowell in the cases of the Bcfsei/ {a)
and the Jo/iii {h). The captors in such cases of bond fide
possession are not answerable for incidents not arising from
any misconduct on their part, and are to be protected in doing
whatever may be necessary for the preservation of the property,
and for converting it into money, if a sale takes place in the
ordinary course of judicial proceeding.
The registrar has furnished theii* Lordships with four cases not
reported, during the former wars, in which simple restitution was
decreed by the Lords of Appeal, after condemnation in the
Admiralty Court, and in all which the question arose as to what
deductions ought to be made from the gross proceeds of the sale.
These eases are the Catherina Maria, in 1802, the Falch, in 180-3,
the Triton, in 1810, and the Madoc, in 1817, after the conclusion
of the then war. In all these cases, and indeed in all similar
eases, the expenses of sale were uniformly allowed, as proper
deductions from the gross proceeds.
It is true that in the Prize Acts in those times, passed from 1793
to 1815, an express clause was inserted, that in cases of reversal on
appeal, the nett proceeds of the sale (after payment of all expenses
attending the same) should be decreed and taken to be the full
value of such ship and goods, and that in the present Prize Act
costs in those cases, whicli have been since taxed by me, will be found
charges for taking out the decrees of sale, for instructing the marshal to
execute them, and for examining the marshal's accounts of charges, &c. So
that, in case the marshal were ordered to repay any portion of the sums
which ho had received out of these proceeds, he would be entitled to recover
the amount from the Queen's Proctor, by whose directions and under whose
instructions he has acted throughout."
((/) Vol. I. p. 03. {b) Ante. p. 232.
THE FRANCISKA — THE UNIOX. 431
tliat clause is omitted; but their Lordships are clearly of opinion, 1856
that such omission, if intentional, could at most only operate to "^ '
leave the matter in the discretion of the Court, and that the Courf-, The
Fkamciska.
whether tliat of Admiralty or Appeal, ought to continue and act rp^^^^ u^^o^'
upon the practice which lias liitherto prevailed. r,.~^r,
. . .... 1 Sir John
Their Lordships, therefore, liave no hesitation in saying- tliat the Patteson.
expenses of sale must bo deducted from the gross proceeds, before
any money is paid over to the claimants.
But there are two other heads of deduction which require a
distinct consideration. The one is composed of charges whicli
relate to the care and custody of the property, pending adjudication,
and before sale. Now in former wars that care and custody
remained with the captors, excepting the few cases in which the
property was condemned as (/roifs of the Admiralty, or, being
perishable, was sold at once. The present Prize Act directs that
the property shall be fortlnvith delivered up to, and remain in, the
custody and care of the marshal, or other officer (as the case may
be). It necessarily follows tliat persons must be employed and
paid to keep possession of the property ; whilst in former wars
those persons would have been the servants of the captors them-
selves.
Their Lordships are of opinion that this alteration made by the
present Prize Act, being intended for the benefit of all persons
concerned, the reasonable expenses attending the possession, care
and custody of the property, must be treated as a charge upon the
property itself ; and must be deducted fi'om the gross proceeds of
tlie sale, whether the property be condemned or restored ; and
indeed this appears to have been the practice in former wars,
whenever, from circumstances, the possession, care and custody did
not remain with the captors themselves.
Another head of charges is oomposed of " Pilotage," " Trinity
Lights," " Pamsgate Duos," Slc. These charges relate to the ships
only. The charge of pilotage appears to have been allowed in the
cases of the Fakk and the Blarhc. The amount indeed in those
cases was much smaller than in the present instances; but the
principle applies equally to all. Tliey are charges necessarily
incurred, in order to bring the ships into th(> proper port for
adjudication, whilst the captors were hoiu'i fido in possession of the
432 TIIK OSTSFF,.
^^''^ eliips, iind wliioli thoy wore compelled to pay by the Acts of
— — ^^-^^ — rnrliiuncnt relating to " Pilotage," " Trinity Liglits," &c.
Yju^cLkx Their Tjordshijts are f)f opinion that these charges fairly and
TuK Union, projierly attach to the property, and ought, therefore, to be
Sir John deducted from the gross proceeds of the sales. Their I^ordships,
rattcson. therefore, determine that the sums which have been received by the
registrar from the Paymaster-General, and those only, are the
amounts which the claimants in these cases are entitled to receive.
[9 Moore, THE OSTSEE.
p. C. I,i0;
Spinks, 174.] r„,,fiire—Wro]u//iiJ Ad ~ J/cnrf^t MisUth' of Captor — Bestifution—Damaf/fS
(111(1 Costs.
If captors imiiroperly and without reasonable cause, but tbi'ough an
honest mistake, seize a vessel, such vessel not being, by any act of her
own, voluntary or involuntary, open to any fair ground of suspicion,
the captors are liable in damages and costs.
1855 The question raised by this appeal was whether the owners of
Fihruanj 19, ^he Oiitscc and her cargo which had been captured by her Majesty's
August 19. ship A/ban for a supposed breach of the blockade of Cronstadt,
were entitled, upon the decree of the High Court of Admii'alty for
restitution of the ship and cargo captured as a prize, to costs and
damages from the captors. The seiziu'e and detention being
admitted to be without sufficient grounds for condemnation, the
captor consented to the restitution of the ship and cargo. The
sentence of the Admiralty Court was founded upon that consent.
The facts of the case were these : —
The Ostscc, imder Mecklenburg coloiu-s, took on board at Cron-
stadt, in the month of May, 1851, a cargo of wheat, and sailed
therefrom on the 28th of the same month, bound to Elsinore for
orders, and in the prosecution of such voyage was captured on the
1st of June in the Gulf of Finland, about twenty-fom' miles from
Dagerort, by her Majesty's ship Allan, Henry Charles Otter,
commander, as for a breach of the blockade of Cronstadt, and sent
to England for adjudication ns a prize.
THE OSTSEE.
433
Proceedings were instituted in July, 1834, against the ship and 1855
cargo in the High Court of Admiralty, when a claim was put in ^ '^sT ^^'
by the aj)pellant on behalf of the owners of the ship and cargo. It ^»yt
appeared, however, that the blockade was not imposed upon Cron- The Ostsee.
stadt until after the capture, and consequently the Queen's Proctor,
on the 2nd of August, offered to consent to the restitution of the
ship and cargo on payment of the captor's expenses. No answer
was given to this offer until the 10th of August, when the claimant
rejected it.
The cause came on for hearing in the Admu'alty Court ou the
19th of August, when the claimant prayed the restitution of the
ship and cargo, and that the captors might be condemned in costs
and damages. Tlie captors consented to restitution of the ship
and cargo, but submitted that it ought to be without costs and
damages. The judge of the Admiralty Court (the Right Hon.
Dr. Lushington) admitted the claim for the ship and cargo, and
decreed the same to be restored to the claimant for the use of the
owners, but without costs and damages. In giving judgment the
learned judge observed that : " During the seventeen years that
Lord Stowell presided in this Com't, and administered the law of
nations with regard to war, I believe that out of the many thousand
ships and cargoes brought before him, he condemned the captors in
costs and damages in only about ten or a dozen cases — not one in
a thousand ; and Lord Stowell also, as I right well remember, laid
it down that he would not condemn the captors in costs and
damages upon evidence given before him, without giving them the
opportunity of justifying their conduct, and stating, if they thought
fit, the grounds on which they made the capture. In my own
recollection there are only three cases of restitution with costs and
damages. I am well aware that where a seizure has been made
without ostensible cause or reason, justice requires that the persons
making the seizure should make good to the party the loss that
may have been occasioned by the captm'o ; at the same time, I am
of opinion that this is the extremity of the law of nations, which
ought not to be adopted except in cases wliieli imperatively require
the Com-t so to do. "Without venturing any opinion as to what
may be the duty of the Court in cases that may come before it,
looking at the confusion that lias arisou rosppoting this blockado,
R. — VOT. n. F F
4M THE OSTSEE.
1866 nii
Februnri, 10, f,,j.,nj„g |)„.ji. ^^y,^ opinion, and seeing tliat consent has Lr-en given
â– Auffu.'it 19. fm- j^lio restitution of this ship and her cargo, I think I sliouhl be
Thb Ostsbb. going too far in condemning the captors in costs and damages, and
I decline so to do " (o).
From so much of this sentence as refused costs and damages to
the claimant the present appeal was brought, and the appellant
prayed that that portion of the sentence appealed from might be
reversed, the principal cause retained, and that the damages and
costs sustained by the owners of the Osfscr, and her cargo, by
reason of her capture and detention, be pronounced for, and that
the respondent, Otter, the captor of the ship and cargo, might be
condemned in the damages and costs, and also in the costs incurred
by the appellant, as well in the Appellate Court as in the Court
below, by reason that the seizure and detention of the OatseCy for
the presumed breach of a blockade, which was not imposed until
nearly a month after, were unjustifiable ; and that the same were
not occasioned by, and was not imputable to, any misconduct of
any description on the part of the Ostsee.
The appeal was argued by Dr. Addams and Dr. Ticiss for the
appellant, and
The Queen's Advocate (Sir John Harding) and Dr. Baijford for
the respondents.
For the appellant, it was contended that the general principle
recognized in Prize Courts was to grant compensation to claimants
ujion restoration of the ship and cargo when wrong had been
done ; whether the original seizure was justifiable or not, if the
captors were guilty of malfeasance or non-feasance ; and they
submitted, that as the seizure in this case was without jirobable
cause, as it was not in disj)ute that the Osfsee was captured for a
breach of a blockade which had no existence imtil neai'ly a month
after the seizure, the appellant was entitled, ex dehito justitice, not
only to simple restitution, but to restitution with costs and
damages. The following authorities were referred to by them, as
instances where costs and damages had been allowed on
[(«) Tliis was the whole jtidgmcnt as reported in Spinks, p. 1T4. — En.]
THE OST.SEE.
435
restitution : Story on Prize Courts, pp. 35, 39, 112 (_p), the 1855
Washimjtoii{q), the Acfeon{r), the Hendrick and Jacob (s), the ^'^"l^^'y ^^'
WUhchmhcrg (t), the Coricr Marifinw {»), the Anna (.r), the Keustra ^"g"*< ^9.
Senom de Los Dolores (//), the Sai)it Juan Baptista (~), the EUse {a), The Ostsee.
Undo V. Bodney (i), Zt? Cr/^^r v. Eden (c) ; and they further suh-
mitted that even if the captors had acted bond fide and been guilty
of no misconduct, and the neutral had been "vsTonged, he was still
to be compensated by the captors, the payment of which was a
question resting between the government and the captors : the
Zacheman {d) ; and that the fact of the captain. Otter, having
acted under orders of his superior in command, did not exonerate
him from responsibility : the Mentor {e), the Eleanor (/).
The respondent's counsel distinguished the cases cited by the
appellant, where costs and damages had been allowed, from the
Ostsee, submitting that they were either cases of captiu-e by
privateers, or of improper conduct on the part of King's ships, and
they refeiTcd to the Betsey {(j), the Felicity (A), the Lively (/), the
Marianna Flora {ni), the Tiro Sasanna/is {n), as authorities that
restitution had been decreed without costs and damages. They
further contended that the seizure of the Ostsee by the Alban was
upon probable grounds, as there was an absence of necessary ship
papers ; that by international law it was the absolute duty of
neutrals in time of war not to sail the seas without a complete set
of ship papers (Bynkershoek, Qaa\st. Juris Publiei, lib. i. c. xiv. ;
Story on Prize Courts, pp. 4, 36 (o) ; 1 Kent's Comm. p. 161 ;
Chitty's Law of Nations, p. 196 (edit. 1812); Abbott on Shii^ping,
288 {p) ; Ilubner, De la Saisie des Butiments neutres, c. 3, sec. 2) ;
that the sea register was wanting, and they submitted that it was
(iO Pratt's edition. Doug. 612.
(7) Vol. I. p. 555. (c) 1 Doug. 594.
(r) Ante, p. 209. ((/) Vol. I. p. 439.
(s) Cited in the Bet^nj, Vol. I. at (') Vol. I. p. 9G.
p. G7. (/) 2 Wheat. Amr. Eep. HAG.
(0 Vol. I. p. 437. l
(«) Vol. I. p. 137. (/() Au(r, p. 233.
(a-) Vol. I. p. 499. (0 1 Gallis. Amr. Ecp. 315.
(//) Aide, p. 20. (m) 11 Wheat. Amr. E.p. 1.
(z) Vol. I. p. 417. (») Vol. I. p. 208.
(a) Ante, p. 327. (o) Pratt's edition.
{b) Note to Le Caux v. F
I- F 2
436 THE OSTSEE.
18/):, not too lato to urge such objection, as it was the privilege of the
FfhriM,!/ 19, ^.uptQj. to rely upon any point at the liearing, as ho might capture
Aiiffiut 19. on one ground, and obtain a condemnation on another: Story on
Tub 03TSEE. Prize Courts, p. 49 ; the Adeline (q).
Dr. TivkSy in reply.
The consideration of the appeal was reserved.
Judgment was now delivered by the Right lion. T. Pemherton
Leigh : —
On the 1st of Juno, 1854, the ship O.sfsec, sailing under the
Mecklenburg flag, on her voyage from Cronstadt to Elsiuore, was
seized by her Majesty's ship Alhan, under the command of Captain
Otter, and sent to London for adjudication as prize.
Upon the ship's papers and the examination of the master, the
mate, and another of the crew, on the usual interrogatories, there
appeared to be no ground for condemnation ; and with the consent
of the captors, on the 19th of August, 1854, an interlocutory decree
was pronounced, by which the ship and cargo were restored to the
claimants, but without costs and damages.
From so mucli of the decree as refuses costs and damages to the
claimants the present appeal is brought.
It is agreed on all hands that the restitution of a ship and cargo
may be attended, according to the circumstances of the case, with
any one of the following consequences : —
First. The claimants may be ordered to pay to the captors their
costs and expenses ; or.
Second. The restitution may be, as in this case, simple restitution,
without costs or expenses, or damages to either party ; or.
Third. The captors may be ordered to pay costs and damages to
the claimants.
These provisions seem well adapted to meet the various circum-
stances, not ultimately affording ground of condemnation, under
which captures may take place.
A ship may, by her own misconduct, have occasioned her capture,
and in such a case it is very reasonable that she shoidd indem-
nify the captors against the expenses which her misconduct lias
occasioned.
Or she may be involved, with little or no fault on her part, in
(q) 9 Crnnch, 244.
THE OSTSEE. 437
Bucli suspicion as to make it the right, or even tlie duty, of a 1S55
belligerent to seize her. There may be no fault either in the ^(^''[^^y '^^^
captor or the captured, or both may be in fault, and in such cases Augmt 19.
there may be damnum absque injun'd, and no ground for anything The Ostsee.
but simple restitution. EitrTtHon
Or there may be a third case where not only the ship is in no '^- ^t-mberton
fault, but she is not by any act of her 0"v\'n, voluntary or involun-
tary, open to any fair ground of suspicion. In sudi a case a
belligerent may seize at his peril, and take the chance of something
appearing on investigation to justify the capture ; but, if he fails
in siich a case, it seems very fit that he should pay the costs and
damages which he has occasioned.
The appellants insist that the circumstances of this case bring it
within the last of these rules.
The general principles applicable to this point are stated with
great clearness in a document of the very highest authority, the
Report made to Kiug George II., in 1753, by the then judge of
the Admiralty Court {>•), and the law officers of the Crown, one of
whom was Mr. Murray (afterwards Lord Mansfield), and they are
laid down in these terms (Pratt's Story, p. 4): — "The law of
nations allows, according to the different degrees of misbehaviour
or suspicion arising from the faidt of the ship taken, and other
circumstances of the case, costs to be paid, or not to be received by the
claimant, in case of acquittal and restitution. On the other hand,
if a seizure is made without probable cause, the captor is adjudged
to pay costs and damages."
This passage (with others) is cited by Lord Stowell (then Sir
William Scott), and Sir John Nicholl, in thoir letter to the
American Minister, in 1794, as containing an accurate statement
of the law of maritime captiu-e.
These rules have been recognized and acted upon by all the
chief maritime powers.
In France, a very earh' Ordonnancc provides that when a seizure
is made " sans cause raisonable, nostra dit Amiral sera deuement
restituer le dommage." (Pratt's Story, 35.)
The same rule is laid down by M. Pourtalis, in two cases which
came before the French Conseil dcs Pri.^cff, in 1799. In one, the
Piyou, where a neutral ship (an American) had been captured by
(r) Sir J. Lee.
4SP> Tin-: osr«EE.
1S.3') two French frigato.i, tlio rulo was stated and applied, it may bo
Fctnuary 19, (],Q,ij^rl,t witli somo sovcrity to the particular case.
Awjmt 19. ^,1 Englisli translation of a rather imperfect report of tho
The Ostsee. jiid;2^ment is to bo found in the notes in the case of the Charming
Kijrlit Hon J^'tiieij (.v) ; but the judgment is set out at length in a French work
T. ivniiwrton puLHslicil during the present year, with wliich Mr. Rothery (the
registrar) lias been good enough to fiu-nish us, entitled, Traile
(h'li Prises Maritimcs, vol. ii. p. 54.
After stating that in general a man is bound, as well by natural
as by civil laAv, to make good the damage which ho has occasioned,
and that error on his part cannot relieve him from this reparation,
tlic judge (^) proceeds in these terms: — "En matiere de prises,
rimprudence des captui-es, leur negligence dans I'observation de
certaines formes, des precedes equivoques peuvent souvent compro-
mottro leur surete et faire suspecter leur bonne foi. II pent arriver
alors qu'en examinant I'ensemble des faits on reconnaisse qu'une
prise est invalide. Mais on pent reconnaitre aussi que les captures,
par leur conduite, ont donne lieu a la meprise des capteurs. Dans
ce cas, il serait injuste de rendre ceux-ci responsables d'une erreur
que Ton ne pent raisonnablement regarder comme leur ouvrage.
" Mais quand I'injustice des capteurs ne peut etre excusee, les
captures ont incontestablement droit a une adjudication de dom-
mages-interets."
In that case there would appear to have been some colour for
the capture, for the Tribunal of the First Instance had decreed
restitution ; that Order had been reversed by a superior Court at
Morbihan, which decreed condemnation of the ship and cargo, and
this sentence was again reversed by the Coiiseil des Prises, which
decreed restitution with costs and damages.
The same doctrine is laid down by the same eminent authority,
about the same period, in the case of the Statira (ii).
The cases in the American Courts fully bear out the statement
of tlie law by Mi*. Justice Story, in the treatise ah-eady referred to
{s) 2 Cranch, 98. or public prosecutor, and the passage
(/) It appears that this was not is taken from the " conclusions," or
strictly a judgment of the Cnnseil arguments, delivered in by him to
des Frises, as Monsieiu" PourtaUs, the Couit. They are, however,
although aftci-wards President of the important as being the deliberate
Conr df Cassattoi), was at that time opinion of so eminent a lawyer,
only f'ommi'isaire du Gonvernement, (n) 2 Cranch. 90.
THE OSTSEE. 439
(p. 35), which is in these terms: — "Every capture, whether made 1855
by commissioned or non-commissioned ships, is at the peril of tlio ^'■'""^^y i^»
captors. If tliey cajiture property without roasonahle or justifiaLle August 19.
cause, they are liable to a suit for restitution, and may also be The Ostsee.
mulcted in costs and damages. If the vessel and cargo, or any part Right Hon
thereof, be good prize, they are completely justified, and although '^- ^embcrton
the whole property may, upon a hearing, be restored, yet, if there
was probable cause of capture, they are not responsible in damages."
It may be observed that there is a misprint in this passage in
Pratt's edition of Story, p. 35, where the words "possible cause"
are substituted for " probable cause." On referring to the Appendix
to 2 Wheat. Rep. 8, from which this paii of the treatise is copied,
the mistake appears, and, indeed, it is obvious from the context.
Mr. Justice Story then proceeds to enumerate a great variet}' of
circumstances which have been held to constitute probable cause,
but all of a character to throw suspicion on the sliip or cargo, and
all attributable, in a greater or less degree, to some act or omission
on the part of the owners. At p. 39, he lays it down generally : —
" If the capture is made without probable cause, the captors are
liable for damages, costs, and expenses to the claimants."
In the case of the Juff'roic Maria Schrocdcr (r), in 1800, Lord
Stowell says, " It is not necessary that the captor should have
assigned any cause at the time of the capture ; he takes at his own
peril and on his own responsibility to answer in costs and damages
for any "WTongful exercise of the rights of capture."
In the case of the Triton (.r), in 1801, the same learned judge
expresses himself thus: "It being tlie case of a voyage from
Saint Thomas to Altona, both neutral ports, witliout any doubt on
the destination and without any sufficient ground of seizure, I
think tlie claimants are entitled to costs and damages."
In the case of the WiUia)n (//) the same learned judge states :