CHAPTER VII.

OF RANSOM.

THE ransom of vessels being considered less beneficial to the state than their capture, and liable to great abuse, has been taken away by acts of Parliament; except in cases of necessity, to be allowed by the court of admiralty (a).

Ransoms are contracts entered into at sea, whereby a captain engages for the release and safe conduct of the captured vessel in consideration of a sum of money, which the master of the captured vessel engages on behalf of himself and the owners of the ship and cargo to pay; and for the payment of which he is generally required to deliver a hostage (b). The contract is drawn in two parts, of which the captor has one, which is called the ransom bill; the master of the ransomed vessel has the other, which operates as his safe-conduct (c). The port, to which the ransomed vessel is bound to return, must be expressly mentioned in the safeconduct (d). The safe-conduct operates as a protection to the ransomed vessel from all ships of the country of the captor and its confederates during the time therein expressed. It is binding upon the ships of the country of the captor, as

(a) 22 Geo. 3, c. 25; 35 Geo. 3, c. 66, ss. 35, 36; 45 Geo. 3, c. 72, ss. 16, et seq. Prize Act, Russia, 1854.

(b) Pothier, Tr. de Prop. 1. 2. iv. § 127, and see 4 Rob. 402.

(c) Valin, Tr. xi. 2. iii. Pothier, ibid, §§ 129. 130.

(d) Pothier, ibid. § 131.

given by the authority of its sovereign; and upon those of its allies, as an obligation necessarily implied in every confederacy (e). The master binds himself for the payment of the stipulated sums; and his contract on their behalf is binding upon the owners of the ship and cargo to the extent of their respective interests (f). In addition to the sum stipulated for ransom, they are also bound to pay for the maintenance of the hostage (g). If no hostage were taken the ransom bill would be equally valid. But according to the practice of nations hostages are taken as a security, because otherwise it would be difficult to enforce the payment of ransom during war (h). The hostage has a right of action for the purpose of compelling the performance of the contract, which is necessary to set him at liberty, against the master and against the owners of the ship and cargo, for they are bound by all contracts made by the master for their benefit and the claims of the hostage are a charge upon the ship and cargo (i). The master cannot bind the owners beyond the value of the ship and cargo, and they may always discharge their liability by abandonment, in which case the master is personally liable for the payment of the ransom and expenses of the hostage (k). In case of the insolvency of the master the captor is bound to release the hostage on payment of the sum, for which the ship and cargo are sold by public authority; although the sum specified in the ransom bill exceeds that amount. (7).

If the vessel ransomed perish by storms, the ransom is not

(e) Val. Tr. xi. 2. xvii. Pothier, ibid. § 135.

(f) Pothier, ib. § 136.

(g) Val. Tr. xi. 2. xiii.; 3. iv. Pothier, § 137.

(h) Val. Tr. xi. 3. 1.

(i) Pothier, Ibid. §§ 142. 143.

(k) Val. Tr. xi. 3. xii. Kelly v. Grant, cited in Yates v. Hall, 1 Term Rep. 76. 80.

(1) Val. Tr. xi. 1. xv.; xi. 3. xiii. xiv.

discharged thereby; for the captor only guarantees the vessel against all dangers from the cruisers of his own country or its allies, and not against the perils of the sea, unless a clause providing for that contingency be expressed in the contract. A clause provided, that the ransom should not be due if the vessel should founder at sea, would not extend to a case of wreck. If it were so extended, the master might wreck the vessel, so as to save the most valuable parts of the cargo, for the express purpose of discharging the ransom (m). Where a ransomed vessel is captured a second time out of the course or beyond the time prescribed by the safe-conduct, and condemned, the ransomed bill is discharged, and the stipulated amount is a charge upon the proceeds of the ship and cargo, of which only the surplus is payable to the second captor (n). Where the captor's vessel is captured with the ransom bill, the ransom bill is discharged; and having been so discharged it cannot be revived by recapture (o). So where the captor having transmitted the ransom bill is taken with the hostage on board, the ransom is discharged by capture (p). But in other cases the hostage is a mere collateral security, so that the ransom bill is not discharged by his escape or death (9). Where the captor's vessel is taken after the delivery of the hostage and ransom bill, the ransom remains due, notwithstanding the capture. In that case there is nothing on board that represents the ransomed vessel; and when the ransom bill and hostage have been conveyed to a place of safety, it is the same thing as if the vessel had been conveyed thither as a prize, in which case it would enure to the benefit of the captor, notwithstanding the subsequent capture of his own

(m) Val. Tr. xi. 2. xxvi. Pothier, ibid. § 139.

(m)

(n) Val. Tr. xi. 2. xix. Pothier, Ibid. § 139. (0) Val. Tr. xi. 2. xiv.

(p) Val. Tr. xi. 2. xiv. xv.; xi. 3. xi.

(9) Val. ibid. Ricord v. Bettenham, 3 Burr. 1734.

vessel (r). So where the vessel of the captor was captured with the ransom bill concealed on board, which was never delivered up to the captors, nor ever possessed by them; it was determined on the authority of Grotius that under these circumstances there never had been any capture of the ransom bill, and that the ransom was still due. For no man can be said to have possession of that, of which he does not even know the existence (s). So where the captor's vessel is captured with the ransom bill and hostage on board, but the ransom bill contains a special clause, that in that case the ransom shall still be payable (t).

(r) Val. Tr. xi. 2. xvi.

(s) Cornee v. Blackburne, 2 Doug. 640. Grot. iii. 21. xxviii.
(t) Anthon v. Fisher, 2 Doug. 648, n.

CHAPTER VIII.

OF PRIZE.

For the purposes of the present work prize may be considered, first, with respect to the tribunals that have the adjudication thereof.

Secondly, with respect to the rights of captors.

First, as to the tribunals.

By the maritime law of nations universally and immemorially received, there is an established method of determination, whether the capture be or be not lawful prize. Before the ships and goods can be disposed of by the captor, there must be a regular judicial proceeding wherein both parties may be heard, and condemnation thereon as prize in a court of admiralty, judging by the law of nations and treaties. The proper and regular court for these proceedings is the court of that state to which the captor belongs.

But in the case of allied nations acting in confederacy against a common enemy, the question who is the captor in all cases of common action, must of necessity be determined by their conventions. In all cases of such confederacy the allied states have been considered as constituting for the purposes of war one state; so that a captured vessel brought into the port of an ally, has been considered in all times as much within the jurisdiction of the confederate, and subject to the adjudication in his courts, as if it had been brought to the port of the confederate (a). With regard to neutral or friendly

(a) The Henrick and Maria, 6 Rob. 59.