PART 3. PRIZE BOUNTY.

[1]See ante,p. 26.

[2]Op. cit. iii, 77; see also Blackstone, op. cit. i, 257.

[3]On the relation of the individual to the state see Westlake, Principles of International Law, Cambridge, England, 1894, p. 258; Rousseau, The Social Contract, English translation from French, by Tozer, London, 1909, p. 106. The theory associated with the name of Rousseau appears to have been first enunciated by Giustino Gentili in 1690, see C. M. Ferrante, Private Property in Maritime War, Political Science Quarterly, 1895, xx, 708.

[4]Blackstone, op. cit. i, 259.

[5]Phillimore, op. cit. iii.

[6]By the terms of the Giudon de la Mer; the ordinance of Louis XIV, 1681; the treaty of Utrecht, 1713; the treaty of Versailles, 1786; the right of reprisal was to be granted only to those who could prove damages done and when the offending state had refused legal redress. Prizes judged were to be judged in the same way as prize of war and any surplus in excess of the amount claimed was to be returned, Carnazza-Amari, op. cit. ii, 596, compare with English statute of 1416, ante p. 35, and note.

[7]Phillimore, op. cit. iii, 601.

[8]On English opposition to the declaration of Paris see Phillimore, op. cit. iii, 360; T. G. Bowles, Maritime Warfare, London 1878; Robert Ward, Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs, 1801, reprinted with notes on the Declaration of Paris by Lord Stanley of Alderley, London, 1875.

[9]Sir Thomas Barclay, Privateers, Encyclopedia Britannica, 11th Edition, xxii, 370.

[10]Phillimore, op. cit. iii, 209.

[11]T. E. Holland, Jurisprudence, 11th Edition, London, 1910, p. 212.

[12]Lord Chancellor Brougham in Alexander vs Duke of Wellington, 2 Russel and Mylne 54, 1831; quoted in Phillimore, op. cit. iii, 209; Walker, The Science of International Law, p. 320; Wheaton, International Law, p. 490.

[13]5 C. Rob. 173, 1804, quoted in Atherley-Jones, op. cit. p. 524, Wheaton, International Law, p. 490.

[14]37 Geo. III, c 109, 1797.

[15]E. C. Benedict, The American Admiralty, 4th Edition, Albany, 1910. p. 420.

[16]For full text of letter see, Phillimore, op. cit. iii, 666; Wharton, Digest of the International Law of the United States, 2nd Edition, Washington, 1887, iii, sec. 330; Moore, International Law Digest, Washington, 1906, vii, 603.

[17]Le Caux vs Eden, 2 Doug. 595, 99 Eng. Rep. 375; see also Phillimore, op. cit. iii, 213. As to necessity of a commission to establish a prize court see ante p.

[18]Huldah, 3 C. Rob. 235, quoted in Atherley-Jones, op. cit. p. 521.

[19]Phillimore, op. cit. iii, 655.

[20]See antep. 73.

[21]22 Geo. iii, c 25, s 1, 2, 1782.

[22]The Ships taken at Genoa, 4 C. Rob. 403; The Hoop, 1 C. Rob. 169, quoted in Phillimore, iii, 644.

[23]27 and 28 Vict., c 25, s 45, 1864; also Holland, Manual of Naval Prize Law, sec. 273.

As previously noted the distribution of bounty is now regulated by statute and proclamation. If awarded in any war it is given as head money of five pounds per man on every enemy armed vessel sunk or destroyed.[1]The sharers of bounty are much more limited than those of prize money. Thus joint or constructive captors do not share and the flag officer if not present has no claim.[2]Only those who actually take part in the conflict share in bounty. Bounty is apportioned among the officers and crew of those vessels sharing, in the same way as prize money, with the exceptions noted above.

Chapter V, Part 3.

[1]27 and 28 Vict., c 25, s 42.

[2]Order in Council, Sept. 17, 1900, see Statutory rules and Orders, Revised 1903, Vol. ix, tit. Navy, p. 112.

Whether or not military salvage is paid depends upon (1) the character of the original captor, whether recognized belligerent or pirate, (2) the character of the original owner of the vessel whether neutral, subject, or ally, (3) the character of the title the original captor has in the vessel.

In regard to the first point it may be said that recaptures from pirates or unrecognized belligerents should always be returned to the original owner on the payment of salvage. Pirates can never acquire any title in a capture, so the title of the original owner remains good. We need therefore consider only recapture from recognized belligerents.

In the case of recapture of neutral vessels the original captor had no title and could get none. A prize court of his own country would have decreed restitution of the vessel to the original owner so the recaptor has conferred no benefit by recapturing the vessel. He therefore is entitled to no salvage. In cases, however where no legal prize court exists in the country of the original captor the recaptor does the original owner benefit so should be rewarded by salvage. This situation was held to have existed in France in 1799 and in a case[1]which came up at that time Sir William Scott speaking for the British prize court said:

"I know perfectly well that it is not the modern practice of the law of nations to grant salvage on recaptureof neutral vessels; and upon this plain principle that the liberation of a clear neutral from the hand of the enemy is no essential service rendered to him, inasmuch as that same enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port to release him with costs and damages for the injurious seizure and detention." However in the case before the court the French courts were held to be incompetent so salvage was awarded the captor.

In recapture of vessels originally belonging to subjects, most countries make distinctions in reference to the character of the original captors title. However Great Britain has provided by statute that recaptures shall always revert to the original owner when a subject on payment of salvage with the one exception that in case the vessel has been fitted out by the enemy as a ship of war it shall not be returned but shall be declared good prize.[2]

The final case remains of recaptures of vessels of an ally. Here the question of the original captor's title enters in, for if the original captor had good title, the vessel is enemy property and should be condemned as good prize to the benefit of the recaptor; but if the title of the original captor is incomplete the original owner still has a certain title which must be respected. The question therefore arises, when is the original captor's title complete? There have been many rules on the subject. Thus Sir William Scott has said:

"It can not be forgotten that by the ancient law of Europe theperductio infra praesidia, infra locum tutumwas a sufficient conversion of the property, that by a later law a possession of twenty-four hours was sufficient to divest the former owner. This is laid down in the 287th article of the Consolato Del Mare in terms not very intelligible in themselves but which are satisfactorily explained by Grotius and by his commentator Barbeyrac in his notes upon that article."[3]Sir Leoline Jenkins, in 1672 said:

"In England we have not the letter of any law for our direction only I could never find that the court of admiralty either before the late troubles or since has in these cases adjudged the ships of one subject good prize to another." He then refers to the Commonwealth laws of 1649 and says, "Whether the usurpers intended this as a new law or an affirmance of the ancient custom of England I will not take upon me to determine, only I will say, condemnation upon the enemies possession for twenty-four hours is a modern usage."[4]Later legal adjudication and condemnation was clearly required before the title of the captor state was complete. Thus Lord Mansfield said:

"I have talked with Sir George Lee who has examined the books of the court of admiralty and he informs me that they hold the property not changed, so as to bar the owner in favor of a vendee or recaptor till there had been a sentence of condemnation, and that in the reign of Charles II, Sir Richard Floyd gave a solemn judgment upon the property anddecided restitution of a ship retaken by a privateer after she had been fourteen weeks in the enemies possession because she had not been condemned."[5]And again "That no property vest in any goods taken at sea or on land by a ship or her crew, till a sentence of condemnation as good and lawful prize."[6]These cases referred to vessels owned by subjects rather than allies as they occurred before the law granting especial restitution to citizens had been passed but they serve to make it clear that English law regards the title of the enemy captor complete and the title of the original owner destroyed after legal condemnation in the enemy prize court and not before. Vessels originally belonging to allies after such condemnation will be considered good prize and the ally has no claim. There is no question of salvage, instead the captor receives his share of prize money. Recaptures before the enemy title is complete revert to the ally on payment of salvage but if instances can be given of British property retaken by them and condemned as prize, the court of admiralty will determine the case according to their own rule.[7]

Thus the recaptor may receive no reward at all, may be entitled to salvage or may be entitled to prize money.

The first case occurs when a neutral vessel is recaptured from a recognized belligerent.

The second occurs when the recapture is made from a pirate, when the original owner is a British subject, or when the original owner is an ally and the vessel has not beencondemned by the enemy's prize court.

The third case occurs when the vessel originally belonged to an ally but has been legally condemned by the enemy prize court and in any case of an ally's vessel where that country refuses to return British vessels.

To be entitled to salvage the recaptor must make an actual military recapture. Constructive recaptures such as occupation of a vessel abandoned by the enemy do not entitle to military salvage.[8]

As already stated where salvage is allowed it consists of one-eighth of the value of the vessel and cargo recaptured or in cases of exceptional difficulty one-fourth to be governed by the discretion of the court.[9]Salvage is apportioned among the officers and crew in the same manner as prize money.

Chapter V, Part 4.

[1]The War Onsken, 2 C. Rob. 299, quoted in Atherley-Jones, op. cit. p. 601.

[2]27 and 28 Vict., c 25, s 40, L'Actif, Edw. Adm. Rep. 184, quoted in Atherley-Jones, op. cit. p. 608.

[3]The Ceylon, 1 Dod. Adm. Rep. 105, quoted in Atherley-Jones, op. cit. p. 607.

[4]Sir Leoline Jenkins, Life of, by Wynne, ii, 770; quoted in Atherley-Jones, op. cit. p. 619.

[5]Lucas 79, quoted in Atherley-Jones, op. cit. p. 619.

[6]Lindo vs. Rodney, 2 Doug. 612; 99 Eng. Rep. 385; see also Atherley-Jones, op. cit. p. 619.

[7]The Santa Cruz, 1 C. Rob. 497, quoted in Atherley-Jones, op. cit. p. 622.

[8]Phillimore, op. cit. iii, 638.

[9]27 and 28 Vict., c 25, s 40, 1864.

Whenever a vessel or cargo is adjudged good prize by the court it is publicly sold and the proceeds are decreed to the captors as prize money, unless they are non-commissioned or forfeit it by failure to observe the regulations imposed upon them for the conduct and safe keeping of the prize.[1]In England the proceeds of all vessels and cargoes, whether of a purely mercantile or of a military character are divided as prize money, though the government reserves the right of preemption on naval and victualling stores.[2]The rules which govern the prize court in adjudging a captured vessel good prize or not are beyond the scope of this paper. In general all enemy vessels are condemned, and neutral vessels are condemned for breach of blockade, carriage of contraband or unneutral service. These matters are at present largely covered by the Hague conventions of 1907 and the Declaration of London of 1909.[3]However as previously noted the crown reserves the right to free any vessel even though its capture was perfectly legal and it was of a class that would ordinarily be adjudged good prize.[4]

In the distribution of prize money there must be decided, first, what vessels are to share in the prize; second, what proportion each vessel is to get, and third, what proportion of the vessels share each officer and man on board is to receive.

The second and third points are settled by the prize proclamation which decrees division among the officersand men of all the vessels sharing according to the grade they occupy. There is no division among the vessels but all men entitled to share are grouped together in eleven grades, each one of which receives a fixed proportion of the prize money. This portion is then divided equally among all the men of that grade, no matter on what vessel they served. Thus a sailor on a vessel constructively assisting receives exactly the same share as a sailor of the same grade on the vessel making the actual capture.[5]

Where some of the vessels are allies the division is usually regulated by treaty. The provisions of Great Britain's treaties with France of 1854 and 1860 have already been noted.[6]In these cases division was to be made between the vessels of the allies according to the number of men on board irrespective of rank. Of course, for the share decreed to her own vessels, England employed her own rules of division. Where there is no treaty or some of the vessels are privateers the division among the vessels is decreed by the court, an effort being made to apportion it according to the relative strength of the vessels. To determine this the number of men, guns or both on the various vessels are considered. Thus Mansfield said,

"The law of nations does not determine but if one might guess at it, it must be in the ratio of the strength of the respective captors, to know which the number of guns, weight of metal, number of men and strength of each fleet must be stated."[7]

The court must decide the first question proposed,namely what vessels were either actual or joint captors and as such entitled to share. In defining these terms the court has said:

"All prize belongs absolutely to the crown which for the last 150 years has been in the habit of granting it to the takers who are of two classes, actual captors and joint or constructive captors. Joint captors are those who have assisted or are taken to have assisted the actual captors by conveying encouragement to them or intimidation to the enemy."[8]It is in general considered that this encouragement or intimidation is given by all vessels in sight but this is not always true. Thus:

"For it is perfectly clear that being in sight of all cases is not sufficient. What is the real and true criteria?â€”â€” There must be some actual, constructive endeavor as well as a general intention."[9]

But in the case of king's ships all in sight generally share.

"They are under a constant obligation to attack the enemy whenever seen. A neglect of duty is not to be presumed and therefore from the mere circumstance of being in sight a presumption is sufficiently raised that they are thereanimo capiendi."[10]This rule holds irrespective of the character of the vessel making the actual capture.

With privateers the case is different:

"For they are not under obligation to fight. It must be shown in their case that they were constructivelyassisting. The being in sight is not sufficient with respect to them to raise a presumption of cooperation in capture.â€”There must be theanimus capiendidemonstrated by some overt act, by some variation of conduct which would not have taken place but with reference to that particular object and if the intention of acting against the enemy had not been effectually entertained."[11]As privateering has been abolished this rule is now purely theoretical.

These rules are subject to exceptions however as for instance in the case of captures made in the night or after a joint chase. In such cases ships of the navy definitely associated share though not in sight. Thus:

"A fleet so associated is considered as one body unless detached by orders or entirely separated by accident and what is done by one continuing to compose in fact a part of the fleet, enures to the benefit of all."[12]

A vessel shares in the captures of its tenders.

"I apprehend that the tender becomes as has been contended in law a part of the ship to which she has been attached and that any capture made by her enures to the benefit of the ship to which the tender is an adjunct."[13]Tenders are usually non-commissioned vessels but as they are considered agents of a commissioned vessel their captures are good. The same is true of captures made by ships boats but no constructive captures are allowed by boats of other vessels in sight.

Transport vessels do not participate as jointcaptors. A case involving transports arose in 1799. The court said:

"It has not been shown that these ships set out in an originally military character, or that any military character has been subsequently impressed upon them by the nature and course of their employment and therefore, however meritorious their services may have been and however entitled they may be to the gratitude of their country it will not entitle them to share in this valuable capture."[14]

The division of captures made by joint naval and military expedition are under the jurisdiction of prize courts. So far as possible the same principles of division are employed in dividing proceeds among soldiers of the army as in dividing prize money in the navy. In regard to the conditions that permit a joint land expedition to share the court said in 1799:

"Much more is necessary than a mere being to sight to entitle an army to share jointly with the navy in the capture of an enemy's fleet". A common interest is presumed with naval vessels in sight, not so with the army. "The services must be such as were directly or materially influencing the capture so that the capture could not have been made without such assistance or at least not certainly and without great hazard."[15]The prize act of 1864 now governs the division in joint military and naval captures.[16]

Captures made by non-commissioned ships which nowincludes all vessels not part of the royal navy go to the government.[17]Such captures were originally one of the Droits of Admiralty[18]but since the office of admiral has been in commission they enure to the crown. Peculiarly enough, though all such forfeitures now go to the crown the technical distinction of condemnation to the king, jure coronae and condemnation to the king in his office of admiralty. Droits of Admiralty is still maintained in the decrees of prize courts. By statute[19]all such Droits of Admiralty and Jure Coronae are now put into the consolidated fund of Great Britain. In practice it has usually happened that the greater part of the proceeds of captures made by non-commissioned captors is given to the captor as a special reward.[20]For this it appears that England does not recognize an international obligation to prevent captures by non-commissioned vessels in time of war. It is hard to reconcile this attitude with her adoption of the Declaration of Paris in 1856. She does not of course issue letters of Marque or officially permit capture by any vessels other than those of the royal navy. England has not been engaged in any important naval war since the treaty of Paris so it is impossible to say exactly what her practice in this regard would be. Legally all rights in captures by non-commissioned captors enure to the crown so if such vessels infringed on neutral rights England would undoubtedly refuse to give them any reward, which would soon have the effect of stopping such captures.

Definite rules are prescribed for the conduct of prizes, as for instance, the cargoes must not be tampered with, the holds must be closed, all necessary papers must be presented with the prize, the prize must be brought in without delay and proceedings must be commenced in the prize court without unreasonable delay.[21]

"It is to be observed that the captors have no right to convert property till it has been brought to legal adjudication. They are not even to break bulk."[22]

"The captor holds but an imperfect right; the property may turn out to belong to others, and if the captor put it in an improper place or keeps it with too little attention he must be liable to the consequences if the goods are not kept with the same caution with which a prudent person would keep his own property."[23]

Negligence on the part of the captors in caring for the prize or infringement of national or international laws on the subject will result in the forfeiture of all share of the prize[24]and indeed as already observed[25]without any fault on the part of the captor the crown may refuse the captors any share by returning the vessel as a matter of policy. This almost always occurs at the close of a war when it is usually provided by treaty that unadjudicated prizes should be returned. The captor's rights in prize are purely at the mercy of the crown. What he receives he receives by the crown's grace and not by legal right.

Chapter V, Part 5.

[1]See postp. 102 to 104.

[2]27 and 28 Vict., c 25, s 38, 1864.

[3]See Higgins, The Hague Peace Conferences, for all international conventions bearing on these points.

[4]See antep. 82 et. seq.

[5]Statutory Rules and Orders, revised, 1903, tit. Navy, ix. 109.

[6]See antep. 61 and 62.

[7]Duckworth vs. Tucker, 1809, 2 Taunt. 7, quoted in Atherley-Jones, op. cit. p. 560.

[8]Banda and Kirwee Booty, 1866, 1 Law Rep. Adm. and Ecc. 109, see also Phillimore, op. cit. iii, 222.

[9]The Vryheid, 2 C. Rob. 16, quoted in Atherley-Jones, op. cit. p. 544.

[10]La Flore, 5 C. Rob. 268, quoted, ibid. p. 546.

[11]Amitie, 6 C. Rob. 261, quoted, ibid. p. 546.

[12]Forsigheid, 3 C. Rob. 311, quoted, ibid. p. 546.

[13]The Carl, 2 Spinks 261, quoted, ibid. p. 550.

[14]The Cape of Good Hope, 2 C. Rob. 284, quoted, ibid. p. 556.

[15]The Dordrecht, 2 C. Rob. 55, quoted, ibid. p. 558.

[16]27 and 28 Vict., c 25, s 34, 1864.

[17]"Any ship or goods taken as Prize by any of the officers and crew of a ship other than a ship of war of Her Majesty shall, on condemnation, belong to Her Majesty in Her office of Admiralty." 27 and 28 Vict., c 25, s 39, 1864.

[18]See antep. 52.

[19]27 and 28 Vict., c 24, s 17; 1 and 2 Vict., c 2, s 2; 1 Edw. VII, c 4, s 1; 10 Edw. VII and 1 Geo. V, c 28, s 1.

[20]The Haase, 1 C. Rob. 286, quoted in Phillimore, op. cit. iii, 601.

[21]For statutory obligations see 27 and 28 Vict., c 25, s 37, for rules of Hollands, Manual of Naval Prize Law, see ante, p. 66.

[22]L'Ecole, 6 C. Rob. 220, quoted in Atherley-Jones, op. cit. p. 524.

[23]Maria and Vrow Johanna, 4 C. Rob. 348, quoted ibid. p. 524.

[24]27 and 28 Vict., c 25, s 37, 1864.

[25]See antep. 82 et seq.

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