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presence, or being in sight, will not be sufficient. capture with
the navy, un Fourthly, I am strongly inclined to hold, that when less in case of
action by prethere is no preconcert, it must not be a slight ser concert. vice, nor an assistance merely rendering the capture more easy or convenient, but some very material service, that will be deemed necessary to entitle an army to the benefit of joint-capture. Where there is preconcert, it is not of so much consequence that the service should be material, because then, each party performs the service that is assigned to him, and whether that is important or not, is not so material. The part is performed, and that is all that was expected. But where there is no such privity of design, and where one of the parties is of force equal to the work, and does not ask for assistance, it is not the interposing of a slight aid, insignificant, perhaps, and not necessary, that will entitle the other party to share.
“The principle of terror, to support this claim, must be a terror operating not mediately and with remote effect, but directly and immediately influencing the capture. I will not say that a case might not, under possible circumstances arise, in which troops on shore might be allowed to share in a capture made in the first instance by a fleet. I will put this case. Suppose a fleet should come into a hostile hay, with the design of capturing a hostile fleet lying there, and a fleet of transports should also accidentally arrive with soldiers on board ; suppose these soldiers made good their landing, and gained possession of the hostile shore, and by that means should prevent the enemy from running on shore and from landing, and thereby influence them to surrender. I will not say that troops in such a
situation might not entitle themselves to share, although the surrender had been made actually to the fleet. But, suppose the troops to land on a coast not hostile, but not on their own coast–I do not suppose that the possession of such a shore would draw the same consequences after it, for what difference would it make whether there were troops on shore or not? The enemy must know, that in a day or two the landing on a shore, to them hostile, must be followed by sure and certain captivity, whether there was a party of military or not.
“What additional terror does an army hold out? The consequences of captivity would be the same in either case, and unless there had been a notice and denunciation of particular severity, I do not understand that by the laws of war they would be ex. posed to more than a rigorous imprisonment.
“Where a capture is made by a conjoint expedi. tion, composed of a British naval force and an army of allies, the case is not within the provisions of the British prize act, and therefore the captors must altogether depend upon the government bounty for
reward for such a capture. Rights of joint- The claim of joint-captors is not invalidated by vitiated by the the fraudulent conduct of the actual captors.
The master of The Sirius, the capturing frigate, actual captors. was charged with having, “ contrary to the rule
and practice of the navy," made no signal of an enemy, to other British vessels in sight; and Lord Stowell said, admitting the other to the benefit of joint-cap| The Dordrecht, 2 Rob., 57.
The Stella del Norte, 5 Rob., 350; The British Guiana, 2 Dod., 151.
fraud of the
ture: “Their discontinuance of the chase and alteration of the course, is not an act of their own, but an act wrongfully occasioned by the neglect or mistake or wilful omission on the part of the Sirius; and being so, would not have the effect which generally would follow upon the discontinuance of the chase and alteration of the course, before the act of capture took place; for generally, a discontinuance and alteration would defeat the interest of a joint-captor, by destroying the presumption of assistance and intimidation.”
There are many other cases in which fraud on the part of the actual captor has been held to vest an interest as joint-captors in those who would have been co-operators or constructive captors, but for such fraudulent act.?
In cases where, at a period antecedent to the capture, an engagement had taken place between the vessel claiming as joint-captor, on the basis of constructive assistance, and the prize, the courts lean strongly in favor of upholding the claim.
The British ship-of-war Sparrow, had engaged L'Etoile, a French frigate, a joint-cruiser, the Hebrus then being in the distance. On the following day The Hebrus captured L'Etoile, The Sparrow still being in chase. The claim to share on the part of The Sparrow was admitted by Lord Stowell saying: “I hold it to be a clear and indisputable rule of law, that if two vessels are associated for one
· The Waaksamheid, 3 Rob., 7.
? The Galen, 1 Dod., 433; The Herman, 3 Rob., 8; The Robert, ib.,194; The Endraught, ib., Appendix, 35; The Minerva, 2 Acton, 112; La Virgine, 6 Rob., 124; L'Amitie, 6 Rob., 267; The Sparkler, 1 Dod., 362.
common purpose, as these vessels were, the continu- . ance of the chase is sufficient to give the right of joint-capture. Sight, under such circumstances, is by no means necessary, because, exclusive of that, there exists that which is of the very essence of the claim, encouragement to the friend, and intimidation to the enemy. Both The Hebrus and the ene. my's frigate knew that The Sparrow was astern, and that she was using her best endeavors to come up. She was a consort of the actual captor, and pursued the prize in conjunction with her, and had not discontinued the pursuit when the capture was consummated."1
the time of the capture.
If two cruisers casually meet, and the captain of ent basis for a the one is senior in service to the captain of the claim of joint: other, though they are of equal rank, by the rules abandoned at of the service the ship under the command of the
junior officer is under the direction of the other. If, in pursuance of such direction, the junior captain is ordered to pursue one of two hostile vessels in sight, while the senior pursues the other, both vessels being taken, the junior is entitled to share as joint-captor of both.? “I consider it to be a clear rule of law,” said Lord Stowell, in this case, “ that ships engaged in a joint-enterprise of this kind, and acting under the orders of the same supe rior officer, are entitled to share in each other's prizes; and it is certainly for the benefit of the public service that a rule of this sort should prevail, in order that the public force of the state may be distributed so as to produce the greatest pos
'L'Etoile, 2 Dod., 107.
• The Empress, 1 Dod., 368.
sible advantage to the country, and the greatest possible annoyance to the enemy."
Where, however, there has been such a disper. sion of vessels, between whom there existed a previous concert, that it had become manifestly impossible for either to receive support or assistance from the other, the mere fact of original concert will not support a claim of joint-capture.
A French ship was taken by one of three Eng. lish ships, which, having been apprised of the design of the enemy's ship to attempt an escape from the harbor of Port au Prince, had stationed themselves at the several outlets of that harbor. The enemy's ship having been taken by one of the British ships, the others not being present, claim to share as joint-captors was preferred by the ships not present, and rejected. The justice of this decision, or its correctness upon the established prin. ciples in the law of joint-capture, is not readily appreciated. It would certainly seem that the ships guarding the outlets of the harbor through either of which the enemy's ship might have escaped, and probably would have escaped but for their being stationed there, were quite as much co-operating in the capture, as ships continuing on the chase, at the time of the actual capture by one which happened to outsail her consorts.
There is certainly no analogy between such a case and that of a claim to joint-capture by a cruiser who had reconnoitred the prize, but at the time of the capture by another, had stood off on another chase.
1 The Mars, 2 Rob., 22. 2 The Lord Middleton, 4 Rob., 155; The Rattlesnake, Dod., 32.