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Edward Stanley Roscoe.

Reports of prize cases determined in the High court of admiralty, before the Lords commissioners of appeals in prize causes, and before the Judicial committee of the Privy council, from 1745-1859 (Vol online

. (page 47 of 69)
Online LibraryEdward Stanley RoscoeReports of prize cases determined in the High court of admiralty, before the Lords commissioners of appeals in prize causes, and before the Judicial committee of the Privy council, from 1745-1859 (Vol → online text (page 47 of 69)
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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 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 :



Online LibraryEdward Stanley RoscoeReports of prize cases determined in the High court of admiralty, before the Lords commissioners of appeals in prize causes, and before the Judicial committee of the Privy council, from 1745-1859 (Vol → online text (page 47 of 69)