(r) Vol. I. p. 279. " Gentlemen, I will in tin's stage of
(n-\ V 1 I T) â– 3''> the ease take the liberty of stating to
you the princii)lcs of law which
(//) The words quoted are from the govern cases of this descni)tion. [fi C. Tv.ib.
following charge to the Trinity AMion a capture is not justifiable, the 31 G.J
^[asters, the vessel having, as was captor is answerable for every
alleged by the claimant, been lost at damagi\ But in this case the ori-
sca through want of proper nautical ginal seizure has been justifird by
care on the part of the captors: — the condemnation of part of the
10
Till-: OSTSEE.
1856 " Wlion II capluro is not justifiable tlio captor is answerable for
'^"rlf ' every dama{>o." The same law is laid down in tlio Adcvon [z),
Au f,i,st 19. -^vliicli we shall presently state more fully. In the case of the
TiieOstseb, EHznhrth {a), in 1H09, Sir "William Grant, an authority upon such
Riirht Hon. subjects second only, if second, to Lord Stowell, said : " We
'^ LorY^*^"" order the vessel to be restored, and, as we are of opinion there
appears scarcely any ground for justifying the detention of the
vessel, condemn the captors in costs."
There appears in that case to have been, in the opinion of the
Court, some, though but little, ground for the seizure, and the
decree is for restitution without damages; but the captor, who had
obtained a decree in the Court below, is condemned in the costs of
the appeal. We have referred to the original Order in the Minute
Book, the case being loosely stated in the repoi-t.
The result of these authorities is, that in order to exempt a
captor from costs and damages in case of restitution, there must
have been some circumstances connected with the ship or cargo
affording reasonable ground for belief that one or both, or some part
of the cargo, may prove upon further inquiry to be lawful prize.
What shall amount to probable cause so as to justify a capture
cannot be defined by any exact terms. The question was discussed
before Mr. Justice Story, in the case of the George {b), when it was
cargo. It is therefore to be con- no confidence reposed nor any volnn-
sidered as a justifiable seizure, in tary election of the person in whose
which all that the law requii-es of the care the property is left. It is a com-
captor is that he should be held pulsory act of justifiable force, but
responsible for duo diligence. But E^till of such force as removes from
on questions of this kind there is one the owner any responsibility for the
position sometimes advanced, which imprudent or incautious conduct of
does not meet with my entire assent, the prize-master. It is not enough,
namely, that captors are answerable therefore, that a person in that situa-
only for such care as they would take tion uses as much caution as he would
of their own jn'operty. Thi.s, I think, use about his own affairs. The law
is not a just criterion in such case, rcquii-es that there should be no
for a man may with respect to his deficiency of due diligence ; and this
own property encounter risks from is the point which you will have to
views of particular advantage, or determine on the evidence laid before
from a natural disposition of rash- you."
ncss, which would be entii-ely un- (2) Ante, p. 209.
justifiable in respect to the custody (a) 1 Acton, 10. [Not republished,
of the goods of another person which The quofation comprises the entire
have come to his hands by an act of judgment on appeal.]
force. In cases of capture there is (b) 1 Mason, 24.
THE OSTSEE. 441
contended that, in order to exempt captors from costs and damages, 1S55
the case against the ship at the time of seizure must be such as ^ "23*^ '
pri //HI facie to warrant condemnation, or, at all events, that a resto- -^" ff^^J 19-
ration hj a Court of Prize without further proof is conclusive The Ostsee.
evidence of a defect of probable cause. Mr. Justice Story expresses Ri„ht Hon.
his dissent from these propositions, in which we agree with him ; '^- Peniberton
and he then expresses himself in these terms (p. 26) : " If, there-
fore, there be a reasonable suspicion of illegal traffic, or a reason-
able doubt as to the proprietary interest, the national character, or
the legality of the conduct of the parties, it is proper to submit
the cause for adjudication before the proper Prize Tribunal ; and
the captors will be justified, although the Court slioidd acquit
without tlie formality of ordering further proof." In this case
there was abundant ground of suspicion, and the demand of
damages was rejected.
Neither in the texts, nor in the decided eases to which we have
thus referred, do we find it stated that, in order to subject captors
to condemnation in costs and damages, vexatious conduct on tlieir
part must be proved (except as some degree of vexation is neces-
sarily implied in the detention of a vessel without reasonable cause,
after she has been searched), or that honest mistake, though occa-
sioned by the act of the government of which they are subjects,
can relieve them from their liability to make good to a foreigner
and neutral (and with this case alone we are dealing) the damage
wliich, by their conduct, he has sustained.
Nor is it easy to perceive upon what grounds of reason or justice
such excuses could rest.
If costs and damages were inflicted as a punishment on captors,
honest intention woidd be a consideration of the greatest weight ;
but the principle on which they are awarded is that of affording
compensation to a party who has been injiu-ed. Vexatious conduct
on the part of the captors has, in some cases, been alluded to as
removing all reluctance on the part of the judge to award costs
and damages, as in tlie Ne/zirsis (0), or as forming a ground for
((•) Edwards' Eep. 50. [Not ro- turo of a British sliip on un justifiable
}niblish.ed. The decision was based on grounds. " It is impossible to con-
tho special facts of the case, costs and ccive the least shadow of an excuse for
damages being awarded for the cap- such conduct." — Per Sir W. Scott.]
113 THE OSTSEE.
1855 A\]uit aro termed vindictive damages, or for suLjeetiDg the cajjtors
FrbrKari/ 10, ^^ ^.^g^g ^J^^y Jamagos or depriving tlicm of tlieir expenses, when,
^i>>/ii.st 19, ])ixt for sucli conduct, they might have Leen entith^d to their
TheOstbek. expenses against the claimants, as in the cases of the Spcciifa-
H' TTTi ''"'" ("')' ^'^° IFas/iiiif/foii {e), and several others; but no case was
T. JVniiKTtnn (Kod to US at tlio Bar, nor have we been ahle to find any, in which
wilful misconduct on the part of the captors has been stated to be
a necessary ingredient in an ordinary condemnation in costs and
damages.
So as to error occasioned by the proceedings of their own govern-
ment. The captors act as the agents of tlie State of which they
are citizens, and which must ultimately be responsible for their
acts. Prize Courts afford the remedy as between the indi'siduals,
which otherwise must be sought by the government of the claimants
against the government of the captors ; but the mode of proceeding
cannot affect the right to redress, and if the State could not urge
its own mistakes as a justification of its own wrong, neither, it
should seem, should individual citizens be permitted to do so.
The law of nations upon these points appears to us to be settled
by decisions both in the American and European Courts. In the
case of the Channing Betsey (/), in 1804, the captain of an
American ship of war had seized in America a vessel which was
held upon the evidence to have become Danish property. The
Court was of opinion that the orders issued by the American
Government were such as might well have misled the captor ; but
it was decided (the judgment being delivered by a most eminent
lawyer, Chief Justice Marshall) that the claimants were entitled to
costs and damages against the captors (though not vindictive
damages which had been awai'ded in the Court below), and that
the olHccr, if he had acted in obedience to orders or had been
misled by his government, must be indemnified by the State.
Precisely the same doctrine, though without reference to this deci-
sion, was laid down some years afterwards by Lord Stowell in the
case of the Actecon (g).
There an American ship sailing imder a British licence had been
captured by one of his Majesty's frigates, imder the command of
((/) Vol. I. p. 237. (/) 2 Cranch, 64.
(e) Yol. I. p. ooo. Ig) Ante, p. 209.
THE OSTSEE. 443
Captain Capel, who, being unable to spare men to take cliarge of 1855
lior, had destroyed the vessel and cargo. It was a case, therefore, -^'^*'"'"y i^.
in which all possible suspicion of selfish or improper motives for ^"ffn^t 13-
the capture was out of the question, yet Lord Stowell decreed The Ostsee.
restitution, with costs and damages, and laid down the principles Rjo-ht Hon
of his decision in these terms : — '* This question arises on the act "^^ Pemberton
. . Leigh.
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 they are entitled to receive
it ; indeed, I imdorstand that it is not now opposed by the cni^tor
himself; but it remains to be settled what is to be the measm-e of
restitution — how far it is to be carried. The natui'al 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 depri-
vation 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 lias 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 tliis
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
boon guilty of no wilful misconduct, but has acted from error and
mistake only, the suffering party is still entitled to full compen-
sation, provided, as I before observed, he has not by any conduct
of his own contributed to the loss."
His Lordship, then, after observing that the act of Captain
Capel in destropng the vessel might have been a very meritorious
act as regarded his own government, and that he was not charge-
able with any corrupt or malicious motives, but acted, in all
probability in obedience to orders, concludes his judgment in these
A\ords : — " But this will not affect the right of the American
claimant, whom I must pronounce to bo entitled to restitution,
with costs aud damages ; and I beg it may be understood that I
444 mi; ostsee.
1855 do Fo witlioiit monning in the slightest degree to tlirow any impu-
Fil'niar!/\0, |„|;,„, f„, (],,. ,.,„i,l,i(.[ niid character of Captain Capel, but merely
jiiiffiiMt 19. f,),. j],(3 purpose of giving a duo measure of restitution to thr-
TiikOstskk. <-liiimant."
J.. TTTj Tliis judgiiient was pronounced hy Sir "William Scott in the
T, r(>mi)(itnn nionth of May, 1815, almost at the very close of the war, and it is
in perfect conformity with the rules laid down at its commence-
ment in the paper already referred to in the year 1794.
The same decision on the same grounds was pronounced by the
same learned judge immediately afterwards in the case of the
Eii/m (//).
It is needless to refer to all the other cases which were cited at
the Bar, but there is one large class which so strongly illustrates
the princijile that it may be proper to adveii to it. "We allude to
what are called the Cape Nicola Mole cases.
In the early part of the last war a number of French and Dutch
vessels and cargoes were captured by British ships, and sent in for
adjudication to the Court of Admiralty of St. Domingo. Several
of the ships and cargoes were condemned, and the proceeds of the
captures distributed in the years 1797 and 1798.
It was afterwards discovered, that although the Court of St.
Domingo was properl}' constituted as a civil Court of Admiralty,
and his Majesty's instructions had been addressed to it as a Prize
Court, yet, by mistake, no warrant had been issued to give it a
prize jurisdiction against France or Holland, although there had
been a prize warrant against Spain.
Some time afterwards some of the owners of the captured pro-
perty having discovered this error, the effect of which was that the
Court had no jurisdiction, instituted proceedings in the High
Court of Admiralty, calling upon the captors to proceed to adju-
dication. These proceedings were instituted nearl}- two years after
the sentence, when the property had been distributed, the crews
dispersed, the papers probably lost or destroj'ed, and when it was
scarcely possible that the truth of the cases could be made to
appear on the part of the captors. In one of these cases, the
Unhlali (/), Lord Stowell, in 1801, overruled the protest of the
(A) Antt, p. 213, note. («) Vol. I. p. 303.
THE OSTSEE. 445
captors against the proceedings ; and, in 1804, in determining a 1855
question upon the registrar's report {the Driver) {/i), he speaks of -^**'"'(^'^y i^.
it as " one of that unfortunate class of cases in which this Court ^«i"'«< 19.
has felt itself under the necessity of decreeing restitution, with the Ostsee.
costs and damages." Rij,^Ion.
In all these cases where restitution was ordered, we believe that, T. Pemberton
Leigh,
on reference to tlie registrar's hooks, it will be found that the
captors were condemned in the costs of the proceedings in the
Court at Cape Nicola Mole.
Surely, if the absence of misconduct on the part of the captors,
if honest error, occasioned by the blunders of the government, or
the consideration of hardshijD upon individual officers, acting in
discharge of their duties, could in any case afford a protection
against the claims of a neutral, such protection would liave been
afforded by the circumstances of these cases. Yet the captors
were held liable by the Coui*t of Admiralty, and were afterwards,
we understand, indemnified at the expense of the public.
To apply, then, these rules to the facts of this case.
It appears that the ship was captured on the ground of some
supposed breach of blockade. The mate, on his examination,
says : — " I did not hear of any port or place being blockaded imtil
the 1st of June, 1854, when we were taken. When they came on
board thoy told us there was a blockade, and asked us if we did
not know it."
The master says : — " I did not know of any blockade whatever ;
I did not hear of any blockade. It is true I heard from Sii"
Charles Napier, after the capture, that I had broken the blockade ;
but I did not knowingly enter or leave any blockaded port, place,
river, or coast. I did not hear of it except from Sir C. Napier on
the morning following the day of captm-e. lie sent a boat for
me, and I was taken on board the admiral's ship, and he told mo
of it."
This is all that appears upon the evidence Avith respect to tlio
grounds of seizure, but the papers on board tlie ship distinctly
showed the port from which she had sailed and tliat to whicli slie
was addressed; and it may not be immaterial to observi^ thnt,
(/,) Eub. lio. [Not republishetl.]
446 TTTK OSTSKK.
1855 ulfliough sonif of tlu'so documonts wore in languages of which
23^ ^' I'^'iglish seamen miglit well ho supposed ignorant, yet the material
Auyiisi 19. iads are staled in an English certificate, signed by the British
TheOstsee. vice-consul at llostock. From these papers it api)e:ired that she
Right Hon. ^"*^^ sailed from Cronstadt, and was bound for Elsinore for order.-.
T. iVmijrrton "^y^ ^^^.q ^^ f^j. granted, therefore, that it was for a supposed
breach of blockade in sailing from Cronstadt that she was seized ;
and this is the only ground upon which the ease was rested on the
argument before us. Now, in order to justify a condemnation
for breach of blockade, three things must bo proved : — 1st, the
existence of an actuiil blockade ; 2ndly, the knowledge of the
party ; 3rdly, some act of violation, either by going in or coming
out with a cargo laden after the commencement of the blockade.
{TheBetsei/{l).)
The instructions to her Majesty's commanders upon this subject
for the present war are, that if any vessel shall be found coming
out of any blockaded port, which she shall have previously entered
in breach of such blockade, or if she shall have any goods on board
laden after knowledge of the blockade, such ship and goods shall
be seized, and sent in for adjudication. (Ai'ticle X.)
Now, when this ship was seized, was there any reasonable ground
for suspicion that she was liable to seizure under these instruc-
tions ?
It appeared distinctly upon her papers, as the facts upon inquiry
turn out to be, that on the 25th of March, 1854, before the decla-
ration of war against Russia, this ship was on her voyage from
Leith to Cronstadt ; that she was on that day chartered for a
voyage with a cargo of wheat from Cronstadt to England, or
countries in alliance or amity with England, according to orders
Avhioh she might receive at Elsinore ; that on the 10th of May the
shipment of her cargo had been completed ; and that by the IGth
she had complied with all the formalities requii-ed to enable her to
leave Cronstadt ; and that when she was taken she was on her
direct coiu'se from that port to Elsinore.
Cronstadt was not blockaded at the time when she entered that
port, nor at the time when she took her cargo on board, nor at the
(7) Vol. I. p. 63.
T. Pemberton
Lei"rh.
THE OSTSEE. 447
time when she left Cronstadt, nor even at tlie time when she was 1855
captured, nor for more than tliree weeks afterwards ; and no '^ '^"2-^^ '
blockade of Cronstadt had been proclaimed either by the British '-i-ngt'iit 19-
Government or by the admiral. The Ostsee.
It is said that the admiral had, on the 16th of April, in Kioge Rif,ht Hon.
Bay, proclaimed an intention of blockading all Russian ports, and
that certain ports in the Gulf of Finland were actually blockaded
on the 28th of May, and perhaps at an earlier period ; but there
was not the slightest ground for suspecting that this ship had left
any other port than Cronstadt, or had any intention of entering
any other Russian port.
What colour of reason, then, could there be for seizing under
such circumstances this vessel, which did not fall under any one of
the conditions which are required by the instructions to concur in
order to justify sending in the ship for adjudication ?
It is said that there was a confusion with respect to the blockades
in the Baltic, and the several gulfs of Finland, Riga and Botlinia.
But, in the first place, with respect to the port of Cronstadt, we
find no trace in the evidence of any confusion or doubt as to the
period when the blockade commenced, and if there had been, it
was a confusion created only by the acts and in the minds of lier
Majesty's officers, and could not, therefore, according to the
principles which we have collected from the authorities, have
afforded any answer to a neutral perfectly innocent of all fault,
and not by any act or neglect of ids, voluntary or involuntary,
exposed to any suspicion.
But it is said that although there might be no ground for
suspecting this ship of breach of blockade, yet a captor is not
confined to the case upon which the seizure was made, and thai a
vessel sent in for adjudication upon one ground may, if the facts
warrant it, be subjected to condemnation on anotlier.
Of this rule there is no doubt. Whether, when a ship is sent
in for adjudication as a neutral, and there appears to be no reason-
able cause for having sent lier in as such, a captor can excuse
liimself from costs and damages by alleging irregularities in her
papers, whicli might have led, but did not in fact lead, him to
doubt her neutrality, is a question which it will bo time enough to
consider when it arises. This question, as regards non-commis-
448 THE OSTSEE.
issrj sioned captors, is disoupscMl, ami in our opinion most properly
Fehrua^!, 19, (|p^.j,ipj^ -^y ^jjo loamea judgo of tho Admiralty, in the case of tlio
^i
i '9- sloop Elizc, nf/ivriri.'ir Wil ltd mine {in).
TuE OsTSEE. In this case it is not open to doubt upon tho CNidonce that tho
Ripht ilnn. OfitKvc was iu truth a neutral ship, and nothing suspicious is found
"^ L^rlP^"" on hoard her. But it is said that she ought to have had on board
a sea pass from tho Mecklenburg Government, describing and
identifying her, f^nd that no such pass is amongst the documents
produced. It is very true that no such document is found there,
but unfortunately, in this as well as in other respects, there has
been some irregularity on the part of the captors. By the Act
17 & 18 Vict. c. 18, it is enacted, and by her Majesty's instruc-
tions, in conformity with the Act, it is ordered (Art. II.), that the
captor shall bring into Court all books, papers, passes, sea briefs,
and other documents and writings whatsoever, as shall be delivered
up or found on board any captured vessels, and the captor, or one
of his chief officers, or some other person who was present at the
capture, and saw the said papers and writings delivered up or
otherwise on board at the time of the capture, shall make oath that
the said papers and writings are brought in as they were received
and taken, without any fraud, addition, subduction, alteration, or
embezzlement whatsoever, or otherwise shall account for the same
upon oath to the satisfaction of the Court.
It is obvious that unless the papers are verified in the manner
pointed out by these instructions, that is, by the oath of some
person who saw them taken, there can be no secm'ity that the
papers brought in are all the papers on board the ship.
Now, iu this case, neither the captor, nor any person present at
the captm-e, nor any person who can have any personal knowledge
w^hatever on the subject, has made the affidavit. It appeal's that a
gentleman named Huxham, one of the officers on board of the
Duhe of Wellington, the Hag ship, was sent home in charge of
this vessel, and he brings in certain papers, which he swears were
all that were delivered to him by Captain Otter, with certain
exceptions, which he specifies and accounts for.
On the other hand, the master, Yoss, iu bis answer to the
(?n) Ante, p. 327.
THE OSTSEE. 449
7th interrogatory, states that the ship had a sea pass on board 1855
from tlie Mecklenburg Grovernment, and in liis answer to the 28th ^''^''l^^!/ ^^y
interrogatory lie says it was on board when he took the command ^ixffi'xt 19.
of the sliip and previously thereto. Now, when it is remembered Thb Ostsee.
that, from the nature of the case, Mr. Iluxham's affida-sit offers Ri„i,t Hon.
no contradiction to this statement, and that the sup])0sed absence "^^ P^mbcrton
. Lcijrh.
of this paper appears to have excited no remark at the time of the
capture, and to have occasioned no doubt as to the ship's neutrahty,
it is impossible to attribute any weight to this cu'cumstance.
We will now advert to the principal cases cited for the respon-
dents, by Avhich it was argued that the rules which we have above
stated Avere luodified, or exceptions engrafted upon them, which
are sufficient to protect the captors ; but in doing so we must
premise that, unless the rule itself be qualified, its stringency is
not affected by the circumstance that it may not always have been
applied by the judge who lays it down, to cases in which those
who are bound by its authority may consider that it was applicable.
The application, of course, must depend upon the opinion of the
judge in each particular case.
The first case relied on was the Betsey {n) .
There an American ship was found in the harbom* of Guada-
loupe, at the time when the island was captured by the British
forces ; there were cu-cumstances which, in the opinion of Lord
Stowell, threw great doubt upon the point whether she was neutral
or enemies' property, and made a seizure justifiable, for the purpose
of further inquiry'. The learned judge, it is true, remarks that
the question whether there was or not a blockade in existence