rule of respondeat superior; and a liberal indemnity will be awarded in cases where it is shown that the captured crew have been subjected to gross illtreatment.1

The jurisdiction of prize courts is unquestionable to decree confiscation as a penalty for falsity, fraud or misconduct, as well of citizens as of neutrals And it is a part of the ancient law of the admiralty, independent of any statute, that captors may forfeit their rights of prize by their own miscon duct; and therefore such decree of forfeiture may be declared against them (in which case the prop erty goes to the government), where they have been guilty of gross irregularity, or criminal neg. lect, or wanton impropriety and fraud. So too, where they have, without necessity, disposed of the prize property, before condemnation; where they have rescued the property from the custody of the marshall, commissioner of prize, or other custodian of the court; and also where they have violated the instructions of the government relative to bring ing in the prize crew, and generally in all cases of deviation by the captors from the established and regular course of proceedings, the prize court re quires satisfactory explanation of such deviation, before it will exercise its jurisdiction beneficially to the captors.

The foregoing general outline of the prize juris

1 Del Col. vs. Arnold, 3 Dall., 333; The Anna Maria, 2 Wheat, 327; Bynkershoek, Qu. Jur. Pub. Lib., I., ch. xix; Du Ponceau's Trans., 147; The St. Juan Baptista, 5 Rob., 33; The Die Frie Damer, 5 Rob., 357; The Lively, 1 Gall., 315.

2

8 Cranch, 421; The George, 2 Wheat., 278; La Roine des Anges, Stewart, 9; The Cossack, Stewart, 513.

diction of admiralty will serve to elucidate the rules of practice and proceedings adopted by prize courts in its due administration.

first duty of

securing pos

And first in order for consideration, are those Rules rules which relate to the duties of captors, after captors upon they have secured possession of their prize. The session of rules applicable to the evidence upon the question prize. whether the prize is or not a lawful prize, will be more appropriately considered hereafter, on a review of the proceedings in court.

tors to exer

safe custody of

After a maritime capture is complete, the posses- Duty of capsion of the captors is, in law, regarded as a bona fide cise proper possession, and they are not responsible for any loss care in the or injuries resulting from mere accident or casualty, the prize. but are only bound for fair and safe custody, and are liable for any loss occasioned by their neglect or want of proper care. This responsibility attaches to loss resulting from misconduct of any of the agents employed by the captors, as the prize-master or prize crew-neglect in not employing a pilot.1 In cases of gross misconduct on the part of private captors, the court will decree a revocation of their commission.2

negligence or

But it is a rule of prize courts, that application Liable for for remedial process against captors for misconduct misconduct. or negligence must be made without any unreasonable delay. If the injured parties lie by for such

1 The Betsy, 1 Rob., 93; The Catherine and Anne, 4 Rob., 39; The Caroline, 4 Rob. 256; Del Col. vs. Arnold, 3 Dall., 333; The Dehr Mohr, 3 Rob., 229; The Speculation, 2 Rob., 293; The William, 6 Rob., 316; Wilcocks vs. Union Ins. Co., 2 Binney, 574.

The Marianne, 5 Rob., 9.

To send the prize into con

length of time that the captors may be fairly presumed to have lost or been deprived of such evidence as they might have adduced in exculpation, a monition will not issue against them.1

When a maritime capture is complete, it is the venient port. duty of the captors to send the vessel into some convenient port for adjudication. What is intended by convenient port has been heretofore considered.2

With prize

master and

ed crew con

To this end it is their duty to put on board the captured ship a proper prize-master, and a sufficient unless captur- prize crew to navigate the vessel into port, unless, sent to navi- indeed, the captured crew consent to perform the service, which, however, they are not in general bound to do.

gate.

Captors prohibited from

If they do consent, they thereby exonerate the captors from all liability for loss or damage resulting from improper or unskilful navigation. If any cruelty or unnecessary force, such as putting in irons or handcuffs, is used towards the crew of a neutral ship captured, a prize court will decree damages to the injured parties.*

Under peculiar circumstances, and in cases of converting overruling necessity, captors may, without being breaking bulk, thereby deprived of the effects of a lawful posses

cargo, or

1 The Purissima Conception, 6 Rob., 45.

The Huldah, 3 Rob., 235; The Madonna del Burso, 4 Rob, 169; The St. Juan Baptista, 5 Rob., 33; The Wilhelmberg, 5 Rob., 143; The Elsebe, 5 Rob., 173; The Lively, 1 Gall., 15; The Washington, 6 Rob., 275; The Principe, Edwards, 70.

3 Wilcox vs. Union Ins. Co., 2 Binney, 574; The Resolution, 6 Rob., 13; The Pennsylvania, 1 Acton, 33; The Alexander. 1 Gall., 532, and S. C., 8 Cranch, 169.

The St. Juan Baptista, 5 Rob., 33, The Die Frie Dame, 5 Rob., 357.

ruling neces

sity.

sion, land or even sell the prize goods. But in all cept from oversuch cases, the burden is upon them, to satisfy the court of their perfect good faith, and the circumstances giving rise to the necessity, otherwise any and every spoliation or damage to the captured ship, any breaking bulk, or conversion of the prop erty, will deprive them of all benefit of capture, and subject them to a decree for damages, costs, and expenses.1

tors to send in

ficers, and

The master, and principal officers, and some of the Duty of capcrew of the captured vessel, should, in all instances, master and of be sent with the vessel into the port of adjudica- some of the tion. This is a settled rule of prize courts, and the crew of the importance of its invariable observance cannot be sel.

overestimated.

captured ves

ance of this

lation.

During the war of 1812, between the United Great importStates and Great Britain, this rule was enforced by rule, and ef the special instructions of the President, and the fects of its vioviolation of these instructions involved a loss of all benefit of capture. Captors should understand that by the established rules of prize courts, the examination of the master and officers, and if possible some of the crew, of the captured vessel, is the initiatory step in proceedings for condemnation, and without such examination (except by special permission in rare cases, showing physical impossibility), no proceedings can be taken.2

The Concordia, 2 Rob., 102; L'Eole, 6 Rob., 220; The Washington, 6 Rob., 276; Clerk's Praxis, 163; Del Col. vs. Arnold, 3 Dall., 333; The Maria, 4 Rob., 348; The Rendsberg, 6 Rob., 142.

The Eliza and Katy, 6 Rob., 185; The Henrick and Maria, 4 Rob., 43, 57.

On arrival at port of adjudi

the admiralty.

all papers and

As soon as the vessel or property captured ar cation, first rives at the port of adjudication, it is the duty of duty to notify the captors (therein represented by the prize-maste if the prize is thus sent and not carried into port by the captors themselves), forthwith to give notice of the fact of arrival to the admiralty judge, or to the prize commissioners of the port or district, and at To deliver up the same time to deliver into the hands of the judge documents or his commissioners, all the papers and documents found on board the captured vessel, accompanied With affidavit by an affidavit that the papers and documents thus in the precise delivered up are in the same condition as when they were taken, without fraud, addition, subduction, or embezzlement. The prize property is thereafter in the custody of the court, and the duty of the cap tors is ended until action on their part becomes necessary to procure an adjudication.1

found on

board.

that they are

condition as found when taken.

Prize Commissioners.

The next step in the proceeding is taken by the commissioners of prize, which leads to a consideration of the powers and duties of the prize commis sioners.

Prize commissioners are officers of the court of Their appoint- admiralty. They are appointed and commissioned ment, powers, by the court, and hold their office during the pleas

and duties.

ure of the court, or until the termination of the war which occasioned their appointment; and the court may appoint as many in number as the exigencies require. The purpose of their appointment is to relieve the court from the performance of many of the onerous duties to which the exercise of prize

1 Ordonnance de la Marine, 1681, Tit. 9, Art. 21; Coll. Man,