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and had been expecting every hour to receive orders. That at that season, it was particularly dangerous to be in that road; and the weather for some days past had been threatening, and so much so on that morning, that the convoy had got under way, looking upon it unsafe to remain at anchor; in consideration of all which circumstances, and having reason to think that his tender, wbich he had sent for information, was captured or lost, he had been induced to inform the masters of the convoy, that if no orders came for him that day, he should on the next take charge of them again for Eng. land; and that after standing off Nevis Point, if no vessel was seen by noon from the southward, he should return and make signal for the convoy to join him. He then stated, that he had been very uneasy at having no orders to go by: and the ships under his command being very valuable, and insured to sail with convoy, and that if bad weather happened where they then were, there would be the greatest chance of their being lost; and that no ships ever remained there after the 1st of August ; he therefore hoped that Admiral Hartty would view his conduct in the light he meant it; and that it was only the risk of so large a British property that could in. duce him to proceed without orders ; and added, that he had left a letter at St. Kiti's, to be delivered if any order should arrive, describing the track he meant to pursue; and that he should for two or three days carry little sail. The letter then concluded, “ I hope, in your dispatches to the Admirally, you will approve of my conduct; I give you my honour, it is my wish at present, not to leave this station,” &c. The case then stated a letter from the plaintiff to the Admiralty, dated 13th of September, 1796, in which he stated that La Piyue sailed with the trade from Demerara, on the 21st of July, and did not reach St. Kitt's till the 31st: after the convoy had sailed. That he had ordered the Ariadne frigate to take the Demerara ships to England from St. Kitts; and that she had sailed on the 16th of August for that purpose; but that by a letter afterwards received from Capt. Milne, he found that he had sailed with that convoy from St. Kitt's on the 10th of August, having received a petition, &c. (stating the reasons as before). That the Ariadne did not arrive until ten days after La Piqué had sailed ; and therefore she remained on the St. Kitt's station. The dispatch then pro

ceeded,

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ceeded, “On the conduct of Capt. Milne, I beg leave to
observe, that I consider his anxiety respecting the safety
of the ships under his convoy, was his motive for proceeding
toj England without my orders. But I regret that he did
not wait at St. Kitt's a few days longer, when the Ariadne
would have arrived.” Capt. Milne, on the 8th of October,
1796, in La Pique, out of the limits of the West India stá-
tion, viz. between the Start Point and the Bill of Portland,
in the English Channel, captured the vessels in question in this
cause, which have been condemned as prize, and the proceeds
thereof received by the defendants as his agents; the eighth,
or flag share of which prizes, amounts to 49611. As. ed.
Capt. Milne arrived at Spithead on the 9th of October, 1796,
and on the next day forwarded a circumstantial account of
all his proceedings to the Admiralty; in which lie stated his
“ reasons for having left St. Kitt's without the orders of the
commander in chief.” In this account Capt. Milne noticed
his baving, after quitting Demerara, dispatched a tender to
Rear Admiral Christian with a letter, with orders, if he
should not be at St. Lucia, to deliver it to the commanding
officer; as he had heard that Rear Admiral Harvey had
arrived. And in another part, he noticed bis supposition
wbile at St. Kitts, on not hearing of the tender, that it
might bave been captured, “ or that Rear Admiral Harvey
had not sent her, supposing that he (Capt. Milne) might have
sailed with the convoy,” &c. He concluded by stating, that
he had no doubt Rear Admiral Harvey's dispatches would
explain his not having orders sent him, and hoped their lord-
ships would approve of his proceedings, as nothing but the
risk of so great a property would have induced him to have
sailed until orders from his commanding officer. The letter
also mentioned the captures he had made. The secretary 10
the Admiralty wrote in answer to Capt. Milne, that the Board,
under the circumstances stated by him, approved of bis pro-
ceediug to England with the convoy.

The case then sets forth the following extracts of the King's proclamation respecting the distribution of prize. « The captain or captains of avy ships of war, who shall be “ actually on board at the taking of any prize, shall have “3-eighth parts ; but, in case any such prize shall be taken " by any of our ships, &c. under the command of a fag or

[226]

1805.

"flags, the fag officer or officers being actually op board, or NARVEY

6 directing and assisting in the capture, shall have one of the against

“ said three-eighil parts; the said one-eigith part to be paid COOKE.

“ to such fag or Hay officers in such proportions, and subject
" to such regulations, as are hereinafter mentioned. The
“ following regulations shall be observed concerning the one-
“ eighth part hereinbefore mentioned to be granted to the flag
“officer or officers who shall be actually on board at the taking
“ of any prize, or shall be directing or assisting therein. 1.
“ That a fag officer commander in chief, when there is but
" one flag officer upon service, shall have to his own use the
“ said one-cighth part of the prizes taken by ships under his
“ command. 2. That a fag officer sent to cominand at Ja.
maica, or elsewhere, shall have no right to any share of
“ prizes taken by ships employed there, before he arrives at
" the place to which he is sent, and actually takes upon him
" the command. 3. That when an inferior fag officer is
“ sent out to reinforce a superior fag officer at Jamaica, or

" elsewhere, the superior flag officer shall have no right to [ 227 ]

“any share of prizes taken by the inferior flag officer before ".the inferior fag officer shall arrive within the limits of the * « command of the superior flag officer, and actually receive “ some order from him. 4. That a chiet' Ang oslicer return“ing home from Jamaica, or elsew bere, sball bave no share “ of the prizes taken by the ships left behind to act under “ another command. 5. That if a flay officer is sent 10 “ command in the out ports of this kingdom, he shall have “ no share of the prizes taken by ships which have sailed “ from that port by order of the Adiniralıy. 6. That when " more flag officers than one serve together, the eighth part " of the prizes taken by any ships of the fleet or squadron, “shall be divided in the following proportions, viz. If there " be but iwo flag officers, the chief sha:I have two-third parts “ of the said eighth part, and the other shall have the remain"sing third part; but if the number of flag officers be more " than two, the chief shall have only one-half; and the other " half shall be equally divided amongst the other flag off“ cers." The question for the opinion of the Court was, Whether the plaintiff were entitled to recover in this action the eighth or Aag share of the amount of the proceeds of the przes, if any, and what pari thereof?

Dauncey

Dauncey, for the plaintiff. Capt. Milne had once put him

1805. self under the coinmand of Admiral Christian, on the Lee

HARTET ward Island station, to whose command the plaintiff suc

against ceeded by special appointinent; and was, in fact, the com Coor.. mander in chief on that station at the time when Capt. Milne in La Pique sailed from out of the limits of the station with the convoy to England. The prize in question was, indeed, taken out of those limits on the 8th of October, 1796,

( 228 ) during which time, the chief command accidently devolved ou Sir Hyde Parker, as a senior officer happening to come within that station in transitu to another: but that has been already determined, in an action tried before Lord Ellenbo. rough, not to give him any right to the commander in chief's share of the prize in question. [Lord Ellenborough. I did not decide that any body else had a right to it.] It follows necessarily, That if Adiniral Purker was not entitled as commander in chief, the plaintiff was. If Admiral Christian had retained the chief command, he would certainly have been entitled to the commander in chief's share, though the frize were taken out of the limits; the plaintiff having once pat himself under his command. The plaintiff then having succeeded to Admiral Christian's command, is entitled tu share in all prizes which he would have been entitled to had he remained. He then commented upon different parts of the correspondence, in order to shew that Capt. Milne, be." fore his departure out of the limits of the station, had notice of the plaintiff having succeeded to the command in chief, and had addressed a letter to him as such; that he considered himself as placed under his command generally, and waited his orders only with respect to the particular service then required of him ; informing him at the same time, of his intention to proceed if he had no orders to the contrary, and requesting his interference with the admiralty to excuse him. That, on the other hand, the possibility of Capt. Milne proceeding with the convoy to England, was antici. pated by the plaintiff, who gave orders accordingly to the Ariadne to take his former station in that event; - and that both the plaintiff and Capt. Milne were aware of the necessity of the foriner to appoint some ship to convey the homeward bound trade. He corcluded, therefore, on this parti of the case, that Capt. Milne had merely anticipated the

orders

1805.

HARVEY against COOKE.

orders which he would have received, in case no other con. -voy should arrive in time to take charge of the trade; and that the plaintiff had looked to such anticipation and pro-vided for it: and that Capt. Milne acted throughout as considering himself under the command of the plaintiff, and referring to him for authorizing the act he was doing to the Admiralty. That the whole correspondence was inconsistent with any supposition that Capt. Milne was, or considered himself as acting free from the control and command of the plainuiff.

Upon the general question he argued further : that though the cases of Lord Nelson v. Tucker (a), and Lord Keith v. Pringle (b) did not strictly apply, inasmuch as the question there arose between the chief fag officer returning home from a foreign station 'and the next in seniority on whom the chief command devolved, - yet, in such cases, it was considered that prizes taken by ships sent to cruize by the superior flag-officers before bis departure, and which never were in fact under the command of the officer on whom the command devolved, were yet to be considered as acting under bis'authority, so as to entitle him, and not the superior officer from whom they received their cruizing instructions, to the one-eighth share of the commanding flag-officer. There, indeed, the prizes were taken within the limits of the station the command of which bad so devolved; but that cannot vary the right; for there is no distinction in this respect as to limits in the King's proclamation, by which this question must be governed: the only question is, Whether the commander in chief is directing in the taking of the prize by which has always been understood not an actual, but a virtual direction, such as is to be in ferred from the captor being subjected to his command. So, on the other hand, one who is proceeding to take the chief command on a foreign station, is not entitled to share prize before he has actually assumed the command, though taken by one of his fleet after he had come within the limits of his command. There is no reference to limits, therefore, with respect to the distribution of prize, but merely to the fact of assuming the command of the station ; which, ipso jure, places under the

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