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directly concerned in the purchase and outfit of this vessel, and that the appointment of the master took place under his directions. There is a series of letters, too, which show that he continued afterward to bestow his time and attention in the management of this property, as property in which he was interested. Nothing, therefore, can be more clear than that he is to be considered as a proprietor, and that he would, in all justice, be entitled to the benefit which might be acquired in that character, and consequently that he must be responsible for all the loss that may be sustained. Mr. Parry, having contributed his money in the purchase and outfit of the vessel, had a legal right to have his name inserted in the register, and he can have no right to plead his own laches in order to relieve himself from a claim." It is well settled that the owners of a privateer Liability of

owners of pri. are liable for any injury which, either through ig. vateers. norance or illegality, has been inflicted either by the officers or crew, in the execution of the business of their employment. But when that business is departed from, by a violation or excess of orders, and injuries result in consequence, the owner is not liable. There must be a capture, as prize of war, as the Basis of Lia

bility. basis of the owner's responsibility, except to the amount of the bond given on receipt of the commission and the forfeiture of the vessel. To this extent the owners are liable, even for a piratical seizure and spoliation.' But where, in the performance of legitimate acts, Limitation of the master or crew commit acts of outrage in excess of their authority, the owners are liable to the full value of the property injured or destroyed, though not to damages for the loss of a voyage; the principle being, to absolve the owners from liability to vindictive damage for trespasses committed by a crew.1


Dias vs. The Revenge, 3 Washington, 262.

Although a captor, in the destruction of property which he has taken, acts under a sense of duty to his government, this does not make him any the less liable to the fullest extent, to the claimant. In such a case the captor must seek his indemnifica

tion from his government." Owners liable The owners of a privateer are liable in solido; jointly and severally.

and a joint-owner cannot absolve himself by showing compensation to the extent of his proportionate interest.

A sentence of condemnation by a prize court is absolutely essential, in all cases, to complete the transfer of title to maritime prizes from the original owners to the captors. So that, if a ship be taken by a privateer and not carried into port and condemned, the captors acquire no property in the prize, and can confer no property whatever upon a purchaser.

Privateers are not considered within the terms of considered private property a capitulation, by the provisions of which private on capitula

property generally is to be protected. The Dash, carrying sixteen guns, with tackle, bolts, &c., was

& taken possession of, with two others, in the harbor


Privateers not


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authority of

of Browershaven, after the surrender of Walcheren, in virtue of orders from Commodore Owen, commanding a division of his majesty's ships engaged in the expedition. A claim was made on behalf of Minter & Co., of Browershaven, for this vessel, under the second article of capitulation, by which it was agreed that “all private property should be protected.” Lord Stowell said: “Privateers are private property in one sense; but they have, at the same time, a public character impressed upon them by their employment; though they are private property, they are still private property employed in the public service.”1

By the law of nations, letters of marque or re. Limitation of prisal will not authorize the molestation of embas- letters of sadors, nor of those who travel for religion, nor of law of nastudents, scholars, or their books.

The legality of a capture may exclusively depend Legality of upon the orders or ordinances of the governments depend on of the captors; and where captures are made pur- Srders. suant to such orders, though manifestly in violation of neutral rights and the law of nations (as in the case of the Berlin and Milan decrees, or the orders in council of 1812), they must be deemed, as to the captors, as rightful; and although a tribunal of prize might not lend its aid to enforce such captures, it would probably be bound to abstain from obstructing the captors.?

To constitute a valid capture, there must always Intention to be some act done manifesting the intention to seize to a valid capand retain the prize; but such intention




capture may



seize requisite


11 Edwards, 271.
· Le Maissonnaire et als. vs. Keating, 2 Gallison, 334.

A capture in




time of cap

sion necessary.

a proper inference from the conduct of the captor.1

A capture made within neutral waters, is deemed valid as here a rightful capture, as between belligerents

. The tween belliger- neutral power may question its validity; and as

• to him, it is considered void, unless, both ships

being in neutral waters, the captured vessel commences hostilities upon the other; in such case, the neutral protection is forfeited, and a capture ensuing, it is to be considered rightful, even as against the

neutral. Question of As to the question when, in point of time, propture consider-erty seized is vested in the captors, there is no other And whether uniform rule among nations than that which requires actual posses. firm and secure possession. As to what constitutes

such possession, there is considerable diversity.

“The first question,” says Lord Stowell, in the first case, here cited, “ that will occur, refers to the time of the capture—whether that is to be dated from the actual taking possession, or the previous striking of colors; and I think that the striking of the colors is to be deemed the real deditio. If the French had succeeded in their attempt to defeat that surrender, then the actual final taking possession must have been alone considered; but as that attempt failed, I am of opinion that the act of formal submission, having never been effectively discontinued, must be deemed the consummation of the capture; and if so, the next question will be, where was the vessel at the time this act took place ? and this is proved to have been when she

| The Grotius, 9 Cranch., 368.
The Anne, 3 Wheaton, 435.
* The Santa Cruz, 1 Rob., 50; The Rebeccah, 1 Rob., 233.


was about to go into the road to anchor there'; for such is the expression of the witness upon the third interrogatory, which points more immediately to the place of capture; although on the nineteenth, which is pointed only to the general course of the vessel on her voyage, he says: “She put into the road there. The second witness describes her as merely 'passing by the Isle of Marcon at the time;' and the third says, in the language of the first, that she was about to go into the road to anchor there.' Clearly, by all these descriptions, she had not entered the road; and she was under sail at the time she struck her colors. In point of locality, then, the claim of the admiral is not founded, for she was not in ipsis faucibus. She was about to enter, but was not actually entering; and that is the point at which the admiralty right commences.”

A vessel was captured at Barbadoes, and the captors having returned the ship's papers, intimated to the captain that he had better follow him to Antigua. On the following day the captors took bodily possession, and it was held that the seizure made at Barbadoes was continued throughout, and the actual possession on the second day was not to be regarded as a fresh seizure.

To constitute a capture, so as to occasion a recapture, no actual possession need be taken.

A vessel was ordered to lie-to by a French lugger, calling herself a privateer, but by reason of the boisterous weather, no man was sent on board. Lord Stowell said: “I can by no means agree to what has been advanced in the argument that it

* The Hercules, 2 Dod., 363.

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