1805. HARVEY against COOXE. 224 ] 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, which he had sent for information, was captured or lost, he had been induced to inform the mas ters of the convoy, that if no orders came for him that day, he should on the next take charge of them again for England; 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 Harvey 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 induce him to proceed without orders; and added, that he had left a letter at St. Kitt'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 Admiralty, 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 Pique 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. Kitt's; and that she had sailed on the 16th of August for that purpose; but that by a letter afterwards received from Gapt. 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 un[225] til ten days after La Pique had sailed; and therefore she remained on the St. Kitt's station. The dispatch then proceeded, 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 to] 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 station, 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 42617. 4s. 8d. 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 he stated his "reasons for having left St. Kitt's without the orders of the commander in chief." In this account Capt. Milne noticed his having, 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 his supposition while at St. Kitt's, on not hearing of the tender, that it might have 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 lordships 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 to the Admiralty wrote in answer to Capt. Milne, that the Board, under the circumstances stated by him, approved of his proceeding 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 any ships of war, who shall be "actually on board at the taking of any prize, shall have "S-eighth parts; but, in case any such prize shall be taken "by any of our ships, &c. under the command of a flag or 1805. HARVEY against COOKE. [ 236 ]. flags, 1805. HARVEY against COOKE. [ 227 ] 66 flags, the flag officer or officers being actually on board, or directing and assisting in the capture, shall have one of the "said three-eighth parts; the said one-eighth part to be paid "to such flag or flag 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 flag officer commander in chief, when there is bat "one flag officer upon service, shall have to his own use the "said one-eighth part of the prizes taken by ships under his "command. 2. That a flag officer sent to command at Ja(6 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 flag officer is "sent out to reinforce a superior flag officer at Jamaica, or "elsewhere, the superior flag officer shall have no right to "any share of prizes taken by the inferior flag officer before "the inferior flag officer shall arrive within the limits of the "command of the superior flag officer, and actually receive "some order from him. 4. That a chief flag officer returning home from Jamaica, or elsewbere, shall have no share "of the prizes taken by the ships left behind to act under "another command. 5. That if a flag officer is sent to "command in the out ports of this kingdom, he shall have 66 66 no share of the prizes taken by ships which have sailed "from that port by order of the Admiralty. 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 two flag officers, the chief shall have two-third parts "of the said eighth part, and the other shall have the remain"ing 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 offi "cers." The question for the opinion of the Court was, Whether the plaintiff were entitled to recover in this action the eighth or flag share of the amount of the proceeds of the przes, if any, and what and what part thereof? Dauncey 1805. HARVEY against Cooks. Dauncey, for the plaintiff. Capt. Milne had once put himself under the command of Admiral Christian, on the Leeward Island station, to whose command the plaintiff succeeded by special appointment; and was, in fact, the commander 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 on 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 Ellenborough, 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 Admiral 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 prize were taken out of the limits; the plaintiff having once put himself under his command. The plaintiff then having succeeded to Admiral Christian's command, is entitled to 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, before 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 anticipated 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 former to appoint some ship to convey the homeward bound trade. He concluded, therefore, on this part 229] 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 provided 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 plaintiff. 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 flag 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 faken by ships sent to cruize by the superior flag-officers before his 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 had 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 [230] the prize ?-by which has always been understood not an actual, but a virtual direction, such as is to be inferred 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 |