Слике страница

bags or parcels may be at once forwarded to this department, to the end that the proper authorities of the foreign government may receive the same without delay.

“You are specially informed that the fact that a suspicious vessel has been indicated to you as cruising in any limit which has been prescribed by the department, does not in any way authorize you to depart from the practice of the rules of visitation, search, and capture, prescribed by the law of nations.

“Very respectfully,

“GIDEON WELLES, Secretary of the Navy,"

The duties of
United States



SIONERS. The duties of the prize commissioners with referprize commis- ence to the captured property, and the proceedings sioners prior in adjudication, have been held by the prize-courts

both of Great Britain and of the United States, until the passage of an act of Congress, of March 25th, 1862, “ for the better administration of the law of prize,” to be all comprised under the three follow. ing heads :

1st. Receiving the prize property from the captors, placing their seals thereon, and safely keeping the same until process is issued, under which their possession is superseded by that of the marshal.

2d. Receiving from the prize master the papers, documents, charts, and books of every description, found on board the prize; causing their identification by the prize master, in an affidavit to be made by him for that purpose marking each paper to se. cure the identification, and depositing the same

with the prize master's affidavit of identity, enveloped, and sealed with their seals, in the registry of the court.

3d. Taking the testimony of each witness produced to them by the captors, for examination, separately, and apart from their counsel, and in answer to the standing interrogatories, in preparatorio, and after complying with the required formalities depositing the same enveloped, and sealed with their seals, in the registry of the court.

By the act of Congress referred to, a single further duty is devolved upon prize commissioners, in the following words:

“ It shall be the further duty of sail prize com- Additional dumissioners, at the time of taking such possession, by act of Conand from time to time, pending the adjudication, gress. to examine into the condition of said property, and report to the court if the same, or any part thereof, be perishing, or perishable, or deteriorating in value."

As the prize property was to be under the seal of the commissioners, pending the adjudication, and, of course, could not be examined without the removal of their seal, it was, no doubt, thought proper, by the framers of the law, that it should be occasionally examined by them, and its condition, if perishing, made known to the court.

But these words have been held to impose upon Construction the commissioners many onerous, and highly re- United States sponsible duties.

These additional duties devolving upon the prize Circuit. commissioners, as held by the distinguished judge of the Circuit Court of the United States, for the second Judicial Circuit, in the case of The Hiawa

of the act by

Circuit Court for the Second a

ha, on appeal from a decree of condemnation, rendered by the District Court for the Southern District of New York, are as follows:

First—That where they find the property perishing, they must make a motion for its sale, and notify the district attorney, and the proctor for the claimants, of the motion to be made.

SecondThat their power is joint, and that the concurrence of both is necessary to the validity of their acts.

ThirdThat the power to report to the court as to the condition of the property as they examined the same, from time to time during the litigation, makes them the representatives of all parties in interest; and therefore, although the act requires the sale of the property to be made by the marshal, it must be made under the direction and superintendence of the prize commissioners.

Fourth-That they must attend the sale of captured property, as the representatives of all parties in interest, and see that the property is not sacrificed thereat.

FifthThat where a cargo is to be discharged and appraised before sale, this is to be done under the superintendence of the prize commissioners. That they must take an accurate list of each item of the cargo, when it is discharged, with a view to appraisal. That they must separately appraise, and cause to be separately sold, the separate parcels of each bill of lading

It may be, and on many accounts it undoubtedly is, very desirable, that the prize commissioners should be clothed with this power, and be charged with these duties; but if it were the intention of


Congress that such duties should be devolved upon these officers, it is to be regretted that other language was not employed to express that intention.

By the terms of the act of Congress in question, Witnesses to it is the duty of the prize commissioners to examine without the the several witnesses upon the standing interroga- Presence of tories, not only apart from each other, but “unat- . tended by counsel.”

This is believed to have always been the rule of the English prize-courts; but in consequence of some looseness of practice in this respect, arising out of a question made as to the true construction of the rule, it was probably thought advisable that a provision so salutary, should receive the sanction of le gislation.

character of

THE PRIZE LIBEL AND CLAIM. THE doctrine that the libel in prize should con- The rule as to tain no special averments of the grounds on which the general condemnation is claimed, but be altogether general the averments in its allegations, and that the claim interposed, the claim susmust consist exclusively of a simple statement of recent do

tained by the ownership, and a general denial of the validity of cisions. the capture—was briefly stated in the previous edition of this work.

In the case of The Revere, decided in the Massachusetts District Court, and in the case of Empress, as well as in a large number of other cases decided in the District Court of New York, in which the claimants were British subjects—the libels filed pursuant to this rule, were objected to by claimants'

counsel as insufficient, in not setting forth special cause for capture or condemnation and the claimants insisted upon their right to file elaborate answers, as in instance causes, in addition to the claini of ownership

The doctrine, however, as laid down, was, upon elaborate argument, affirmed in every case.

In the case of The Revere, the learned judge says: “The libel need not set forth specifically the grounds on which condemnation is sought. General allegations are sufficient. The vessel is to be condemned if at all, on any grounds that the examination may disclose. Prize proceedings are not subject to the same rules of pleading as suits on the instance side of the court. This hearing is upon the preparatory evidence, as it is called, that is, upon the papers found on board the vessel, and the answers of her officers and crew upon the standing interrogatories. The claimants are not entitled to further proof, nor are the captors, unless in special and peculiar cases, upon motion and cause shown. The answer, in the nature of pleading, is therefore irregular; and so much of the document called a test affidavit as goes beyond the facts of the claim, I shall not regard as evidence.”

« ПретходнаНастави »