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question then arises whether upon such restitution, the damages, costs, and expenses are to be paid by the captors or the costs and expenses by the claimants. This rests entirely in the 'discretion of the court, and by the practice of prize courts has been made to depend upon the proof of probable cause of capture.
Wherever, upon the evidence taken in the first instance, the case is so doubtful that an order for further proof is made by the court, the costs and expenses are never allowed to the claimant. Nor where the neutrality of the property does not appear either by the documents or the evidence." Nor are such costs and expenses allowed in the case of a destruction or spoliation of papers, unless such destruction or spoliation has been occasioned by the misconduct of the captors themselves, as by firing under false colors. Nor where the master or crew prevaricate on the examination." Nor where any portion of the cargo is condemned. Nor where the ship comes from a blockaded port. Nor, if the ship be restored by consent, without reservation of the question of costs and expenses. But in each one of these and similar cases, showing a probable or reasonable cause of capture, it is in the discretion of the court to allow the costs and
The Diana, 5 Rob., 67; The Einigheden, 1 Rob., 323. · The Statira, 2 Cranch, 102, note (a); vide Letter of Lord Stowell and Sir J. Nicholl in the Appendix.
* The Peacock, 4 Rob., 185. • The William, 6 Rob., 316.
The Frederick Molke, 1 Rob., 86; The Betsy, 1 Rob., 93; The Vrow Judith, 1 Rob., 150.
6 The cases last cited.
expenses to the captors, and order them to be paid by the claimants as a condition of restitution. Wherever the captors are justified in their capture, their costs and expenses are decreed to them on restitution. For this reason, they are allowed their costs and expenses, where the original destination of the vessel was to the blockaded port, although changed on hearing of the blockade. Where the captured ship was sailing under false colors, whether the ship be an enemy's ship or not.* Where the nature of the cargo is ambiguous, as to its being contraband. And in every case where farther proof is required by order of court.
Wherever the expenses of the captors are allowed, such expenses are intended as are necessarily incurred as a consequence of the capture-such as agents' expenses, navigation expenses, pilots' expenses, harbor expenses, &c.—but not the expenses of insurance made by the captors, nor the expenses of transmitting a cargo from a colony to the mother country. The expenses of keeping the property, of its unloading and delivery, generally fall on the captors, unless where it is made a charge, or where it is specially apportioned, by order of the court.?
1 Vide Letter of Lord Stowell and Sir J. Nicholl, Appendix. · The Imina, 3 Rob., 167; The Principe, Edw., 70. 8 The Sarah, 3 Rob., 330. • The Twende Broder, 4 Rob., 33; The Gute Gesetschaft, 4 Rob., 94; The Christina Maria, 4 Rob., 166.
5 The cases last cited, and The Nostra Signora, &c., 6 Rob., 41.
• The Frances, 1 Gall., 445; The Apollo, 4 Rob., 158; The Mary, 9 Cranch, 126.
The Asa Grande, Edw., 45; The Catherine and Anna, 4 Rob., 39; The Narcissus, 4 Rob., 17; The Rendsberg, 6 Rob. 142; The Industrie, 5 Rob., 88.
In the case of neutral vessels, the master's personal expenses and adventure are usually allowed, where his conduct has been fair and unimpeachable; but where the master or crew prevaricate, or where the ship has been engaged in an unlawful or fraudulent trade, their adventures are never restored.)
Where the damages, costs and expenses are to , and expenses as- be ascertained and determined, it is the practice of
prize courts to refer it to the commissioners to hear the parties, examine their statements and accounts, and to report to the court in detail, such sum as they think equitably or legally due to the parties, and to accompany their report with the reasons upon which they base their allowance or disallowance of the respective items. Upon the return of this report, the parties are heard upon exceptions, substantially—though not formally, as in chancery—for the proceedings in prize courts are always as in summary and not plenary suits in the civil law.
Execution of decree.
Where restitution is decreed, and the property remains specifically in the custody of the court, a warrant issues for its delivery to the claimant, and the expenses attending such delivery are to be borne by the captors, unless it be ordered other. wise. If the property has been sold, and the proceeds are in court, an order issues for the delivery of such proceeds; but, if the proceeds are in the
The Calypso, 2 Rob., 298; The Anna Catherina, 6 Rob., 10; The Anna Catherina, 4 Rob., 120; The Christiansberg, 6 Rob.. 376.
• The Lively, 1 Gall., 315. The Rendsberg, 6 Rob., 142
hands of an agent or the captors, a monition or an attachment is issued, to compel the bringing in of the proceeds. By the practice in the courts of the United States, if the prize property is once brought within the territorial jurisdiction of the court, either the property or its proceeds remains in court at the final decree, because it is always either in the custody of the commissioners or the marshal, who hold alike as officers of the court. The office of prize agent is abolished by statute, and the property is never, as in England, placed in the possession of the captors.
Where damages are decreed against the captors, such decree is either against them by name, or by a description of their relation to the ship; and whero the decree is against the owners of a privateer generally, a monition may be issued against them personally, to compel the payment of the damages assessed. Such monition may also issue against the sureties on their bond, given on the granting of the letters of marque. A part-owner is liable for damages, where a decree for damages has been rendered, with that of restitution, even though his name does not appear in the registry as part-owner, and the representative of such part-owner is responsible for costs and damages decreed generally against the owners, although the part-owner of whom he is the representative, was not the doer of the wrong for which damage is decreed, and a release by the claimants of one part-owner, does not supersede the necessity of making him a party with the others to a suit for the proceeds.
1 The Two Susannas, 4 Rob. 278; The Franklin, 4 Rob., 404; The St. Lawrence, 2 Gall., 19; The Jefferson, 1 Rob., 325.
Order for far- If, upon the hearing on the
papers ther proof. When made. tory examination, any doubt arises from any quarter,
or upon any material point, the court may order farther proof, and is in no case precluded by the original evidence. Sometimes such an order will be made where a suspicion is created by the extrinsic evidence. An order for farther proof, however, is rarely made, unless there be something in the original evidence which suggests the propriety or the necessity of a farther prosecution of the inquiry. Where the case is quite clear in favor of the claimant's right to restitution, and is in no respect subject to any just suspicion, the disposition of prize courts is decidedly against allowing the captors to enter upon farther inquiry or to introduce extraneous evidence.1
Farther proof is in no case a matter of right to either party, but always rests in the sound discre tion of the court. It is only when the parties have conducted themselves honestly and with good faith, and the errors or deficiencies which exist in the proof are fairly referable to ignorance or honest mistake, that the indulgence is granted of allowing new evi. dence.
Where the master does not swear to, or give account of the property; where the shipment, though sworn to be on neutral account, does not specify the person; where the ship has been purchased in the enemy's country; where any loss or material suppression of papers has occurred; where the papers are defective, and the conduct of the parties, the nature of the voyage, or the nature of the original
The Adriana, 1 Rob., 313. The Romeo, 6 Rob., 351; The Sarah, 3 Rob., 33C