and by the treaty of 1670 between Great Britain and Denmark (ƒ), it is provided, That upon the production of the passports or safe conducts and certificates specified in the treaties, no inquiry shall be made into goods, ships, or men; but if such certificate be not produced, or there be any other just or urgent cause of suspicion, then the ship ought to be searched, which shall only be deemed justifiable in this case. It has been held, that the circumstance of a number of vessels bound to various parts of the Mediterranean laden with iron, hemp, pitch and tar, intending to sail along the coasts of the enemy under the protection of an armed frigate, was sufficient to excite the just and grave suspicion, which the treaty refers to. The treaty supposes an inquiry for certain papers, and if they are not exhibited, or there is any other just and strong ground of suspicion, then the ship is to undergo search. The treaty therefore recognises the rights of inquiry and search; and the violation of those rights is no less a violation of the treaty than it is of the general law of nations (g). By the treaty of Utrecht (h) between France and Great Britain, it is provided, that men of war meeting any merchant ship shall remain out of cannon shot, and shall send a boat, and shall enter her with two or three men only, to whom the master or commander of such ship shall shew his passport concerning the property thereof, made out according to the form annexed to the present treaty (i); and the ship which shall exhibit one shall have free passage, and it shall be wholly unlawful to molest, search, or compel her to quit her intended course. But that merchant ship of the other party which intends to go to a port at enmity with the other confederate, or concerning whose voyage or the sort of goods on board there may be just suspicion, shall be obliged to exhibit, not (ƒ) Chalmers, Tr. 1. 86. For forms, see Appendix. (g) The Maria, 1 Rob. 371. (h) Chalmers, 1. 390. (i) See Appendix. only her passports, but her certificates, expressing that they are not the kind of goods prohibited which are specified in the nineteenth article. But if one party in the exhibiting of the above certificates, mentioning the particulars of the things on board, shall discover any goods of the kind, which are declared contraband or prohibited by the nineteenth article of this treaty, designed for a port subject to the enemy of the other, it shall be unlawful to break up the hatches, &c., unless in the presence of the officers of the Court of Admiralty. Hence it appears, that by this treaty the right of visitation continues in case of suspicion for the purpose of examining the certificate required to be exhibited; and where contraband articles appear on the face of the certificate, the right of capture and bringing in for adjudication, because otherwise the vessel could not be brought under the supervision of the officers of the Court of Admiralty. The provisions of the treaty of 1668 (k), between England and Holland, are to the same effect; but the fourteenth article further provides, that if the master of the ship shall be content to deliver the said contraband goods to the captain of the belligerent ship, in that case the master shall by no means be hindered from continuing his course and the design of his voyage. The same provisions are repeated in the treaty of 1674 (7). By the treaty between England and Morocco, 1761(m), it is agreed, that when any ship of war of the King of Great Britain shall meet any ship or vessel of the Emperor of Fez and Morocco, or of his subjects, on the captain of such ship shewing a passport from the governor of the city to which he belongs, with a certificate from the English consul, or in case of his death or absence from the major part of the English (k) Chalmers, 1. 162. (2) Ib. 177. (m) Ib. 11. 345. merchants residing there, in such case he shall be permitted to pursue his voyage without impediment or injury. Secondly, as to capture. Resistance to capture is a ground of condemnation. It is the duty of a cruiser to treat the crew of an apparently neutral ship, which he takes possession of for further inquiry into her real character, with all reasonable indulgence; and it is the duty of neutrals under that possession to take care that they do not put themselves in the condition of enemies by resorting to such conduct as can be justified only by the character of enemies. Hence, when an attempt was made, without arms and without bloodshed, to dispossess the captors, the ship and cargo were condemned (n). But when the crew put on board the captured vessel were unable to navigate her, and thereupon the captain resumed his command, and refusing to carry the vessel into the port designated by the captors, continued her course according to his own instructions, it was held that this conduct did not amount to a rescue, nor render the ship on that ground liable to confiscation. For the duty of navigating the ship to such port as the captors may please to direct is not imposed upon the master and crew of a captured vessel. They owe no service to the captors, and are still to be considered answerable to the owners for their conduct. It is the duty, as well as the interest of the captors, to make the capture sure; and if they neglect it from any anxiety to make other captures, or from thinking the force furnished sufficient, it is exclusively at their peril (o). So where resistance arose from ignorance of war, and from mistaking a cruiser for a pirate (p). (n) The Dispatch, 3 Rob. 278. The Washington, 2 Acton, 30, n. The Franklin, 2 Acton, 106. (0) The Pennsylvania, 1 Acton, 33. Vid. Consolato, c. 27, § 5. Capmany, 1. 276. Collect. Mar. p. 3. (p) The St. Juan Baptista, 5 Rob. 33. The capture of vessels within the territory of a neutral state, or within three miles of the coast, or the capture of ships beyond the territory by a cruiser or by the boats of a cruiser, which is lying within the territory is illegal with respect to the neutral sovereign, but not with respect to the enemy. The owner of the ship cannot avail himself of that plea; but if the claim be made by a neutral power in a state of clear and indisputable neutrality at the time when the capture was made, the court will decree restitution (q). Regularly a captor is bound to bring in a captured vessel for adjudication. If it be impossible to bring in, the next duty of a captor is to destroy enemy's property. If it be doubtful whether it be enemy's property and impossible to bring it in, the safe and proper course is to dismiss. If a neutral or protected ship is destroyed by a captor either wantonly or under an alleged necessity in which she herself is not directly involved, the captor or his government is answerable for the spoliation. If an enemy's ship is protected by a licence, and the captor knows of the licence, either from its production or from any other circumstances which ought to have satisfied him of its existence, he is liable to the whole extent of the mischief done. But, if the existence of the licence is not disclosed to him and he has no sufficient means to inform himself, he is not a wrong-doer: and he is not responsible (r). But where a vessel protected by a licence was destroyed under an erroneous opinion, that the licence produced was invalid; because the captor could not spare men to take her to a British port, nor allow her to go to her own port, because she would have furnished important information to the enemy; it was held, that these circumstances might make the destruction of the vessel The Twee (q) The Purissima Conception, 6 Rob. 47. The Etruser, 3 Rob. 162 (n). The Eliza Ann, 1 Dods. 244. The Anna, 5 Rob. 373. Gebroeders, Rob. 162. (r) The Felicity, 2 Dods. 381. a meritorious act, as far as the government of the captor was concerned, but furnished no reason why the owner should be a sufferer: and restitution in value was decreed with costs and damages (s), where the licence was doubtful and the capture therefore justifiable restitution was decreed without costs (t). Where a capture is not justifiable, a captor is answerable for every damage (u). Where the capture is justifiable, a captor is only responsible for due diligence. Hence, where the prize master refused to take a pilot, and the ship and cargo were consequently lost, restitution in value was decreed (w). But where the captors have put a pilot on board, and the damage is not assignable to any want of that controul which the captor is bound to exercise over the crew, he is exonerated from any accident occurring in the navigation of the vessel (x). A captor is not entitled to send his prize to any port that he may choose to select. It must be a convenient port. A convenient port is one, in which the claimant may proceed to adjudication without unreasonable delay, in which the vessel may lie in safety, without unloading its cargo. Hence where a vessel was sent to Shetland instead of any of the principal northern ports of the kingdom; by which unnecessary delay in proceeding to adjudication was incurred demurrage, and the expense of hearing a petition for costs and damages were allowed (y). Where a vessel was taken to Jersey, which was not a port fit for the reception of such a vessel, which was not safe in the outer port and could not be taken into the inner port without breaking bulk, and the captors proceeded to unliver her cargo: they were held liable for the damage sustained (z). (s) The Acteon, 2 Dods. 48. (t) The William, 2 Dods. 55. (u) Per Cur. The William, 6 Rob. 316. The Nemesis, Edw. 50. The Triton, 4 Rob. 78. Per Cur. The William, 6 Rob. 316. The Der Mater, 3 Rob. 129. (w) The William, 6 Rob. 319. The Peacock, 4 Rob. 185. |