6. CAPTURE IN NEUTRAL TERRITORY. § 1211. See Neutrality, infra, §§ 1334-1335. "In the case of the Anna, captured by a British cruiser in 1805, near the mouth of the Mississippi, and within the jurisdiction of the United States, the British court of admiralty not only restored the captured property, but fully asserted and vindicated the sanctity of neutral territory by a decree of costs and damages against the captor. If a neutral state neglects to make such restitution, and to enforce the sanctity of its territory, but tamely submits to the outrages of one of the belligerents, it forfeits the immunities of its neutral character with respect to the other, and may be treated by it as an enemy. Phillimore on Int. Law, vol. iii, §§ 155-157; the Vrow Anna Catharina, 5 Rob. 15; the Anna, 5 Rob. 348; Heffter, Droit International, SS 146-150; Bello, Derecho Internacional, pt. ii, cap. vii, § 6; Riquelme, Derecho Púb. Int., lib. i, tit. ii, cap. xvii." Halleck's Int. Law (3d ed., by Baker), II. 171. During a war between the United States and another power a capture as prize of war may be made within the territorial waters of the United States at any place beyond low-water mark. The Joseph (1814), 8 Cranch, 451, 455. The seizure of a vessel by the naval force of the United States in waters belonging to a friendly power, though an offense against that power, is a matter to be adjusted between the two Governments and not within the cognizance of the court, and does not render unlawful judicial proceedings against the vessel, instituted after her arrival within the jurisdiction of the United States. Ship Richmond v. United States (1815), 9 Cranch, 102; The Merino (1824), 9 Wheat. 391. It was alleged that certain property, libeled as British and enemy property, was captured in Spanish and neutral waters. The court said that as there was not sufficient evidence of the truth of this allegation, it was unnecessary to say what influence the fact, if established, might have had on the decision of the court. Cargo of the ship Hazard v. Campbell (1815), 9 Cranch, 205. A British vessel and cargo were captured by the American privateer Ultor, near the shore of the Spanish part of the island of San Domingo, and were brought in for adjudication. A claim of neutral MARITIME WAR. territory was set up by the Spanish consul at New York, merely by [§ 1211. virtue of his office, without the special authority of his Government. Held, that his official character gave him no authority to make such a claim. The Anne (Mar. 7, 1818), 3 Wheat. 435. "There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign." The Anne (Mar. 7, 1818), 3 Wheat. 435, 447. Where it is claimed by a foreign minister that a seizure made by an American vessel was a violation of the sovereignty of his Government, and he satisfies the President of the fact, the latter may, where there is a suit depending for the seizure, cause the AttorneyGeneral to file a suggestion of the fact in the cause, in order that it may be disclosed to the court. Wirt, At. Gen., 1821, 1 Op. 504. "A capture made within neutral waters is, as between enemies, The Anne (1818), 3 Wheat. 435, 447: The Lilla, 2 Sprague, 177; The Sir note, 209; Judge Holmes's note to 1 Kent, 118. If a ship or cargo is enemy property, or if either be otherwise liable to condemnation, the circumstance that the vessel at the time of the capture was in neutral waters would not, by itself, avail the claimants in a prize court. It might constitute a ground of claim by the neutral power whose territory had suffered trespass for apology or indemnity. But neither a hostile belligerent, nor a neutral acting the part of such belligerent, can demand restitution of captured property on the sole ground of capture in neutral waters. The Sir William Peel, 5 Wall. 517; The Adela, 6 Wall. 266. As the United States, in the case of American vessels seized by French privateers and carried into Spanish ports and held there, pending prize proceedings in French territory, expressly relinquished any claim against Spain and looked to France alone for indemnity, it must be assumed that the United States, in the exercise of impartial justice, tacitly relinquished similar claims against Sweden and the Netherlands; but where a neutral nation permitted American vessels to be condemned by French consuls in its territory, or permitted such vessels to be seized there, it alone would be responsible, and France would be released. The Happy Return (1902), 37 Ct. Cl. 262. In 1881 Mr. Evarts complained to the Chilean minister that the American schooner Mary E. Hall had been fired at, brought to, and searched by the Chilean man-of-war Amazonas in Colombian waters. Mr. Evarts expressed the conviction that the forcible search of a vessel of a friendly state within the waters of another friendly state, under circumstances imperiling the lives of those on board and after conclusive ascertainment of her nationality and of her destination to a neutral port under regular papers, would be the subject of such frank and positive action on the part of Chile as would remove the case from the sphere of diplomatic action. Mr. Evarts added that the failure of the authorities of the State of Panama to find in the occurrence any ground of grievance, because it took place in the jurisdictional waters of that State, was not conceived to preclude action on the part of the United States, inasmuch as the forcible search of the vessel under the circumstances narrated would have been equally contested by the United States if it had been committed on the high seas. Mr. Evarts, Sec. of State, to Mr. Asta Buruaga, Chilean min., Mar. 3, 1881, MS. Notes to Chilean Leg. VI. 259. "All American goods in American bottoms will be subject to capture by Spanish cruisers on the high seas and in all but neutral waters." Mr. Moore, Act. Sec. of State, to Mr. Huntley, May 3, 1898, 228 MS. H § 1212. It is the duty of the captors, as soon as practicable, to bring the Duty to Send in. and to have the examinations of the principal officers ship's papers into the registry of the district court, and seamen of the captured ship taken upon the standing interrogatories. The Dos Hermanos, 2 Wheat. 76; The Pizarro, 2 Wheat. 227. “20. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting. "21. The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure; and to this end her papers should be sealed at the time of seizure, and kept in the custody of the prize master. Attention is called to articles Nos. 16 and 17 for the Government of the U. S. Navy. (Exhibit A.) “22. All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and if circumstances permit it is preferable that the officer making the search should act as prize master. “23. As to the delivery of the prize to the judicial authority, consult sections 4615, 4616, and 4617, Revised Statutes of 1878. (Exhibit B.) The papers, including the log book of the prize, are delivered to the prize commissioners; the witnesses, to the custody of the United States marshal; and the prize itself remains in the custody of the prize master until the court issues process directing one of its own officers to take charge." United States Instructions to Blockading Vessels and Cruisers, General "EXHIBIT A. “ART. 16. No person in the Navy shall take out of a prize, or vessel seized 66 EXHIBIT B. "SEC. 4615. The commanding officer of any vessel making a capture shall secure the documents of the ship and cargo, including the log book, with all other documents, letters, and other papers found on board, and make an inventory of the same, and seal them up, and send them, with the inventory, to the court in which proceedings are to be had, with a written statement that they are all the papers found, and are in the condition in which they were found; or explaining the absence of any documents or papers, or any change in their condition. He shall also send to such court, as witnesses, the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and any person found on board whom he may suppose to be interested in, or to have knowledge respecting, the title, national character, or destination of the prize. He shall send the prize, with the documents, papers, and witnesses, under charge of a competent prize master and prize crew, into port for adjudication, explaining the absence of any usual witnesses; and in the absence of instructions from superior authority as to the port to which it shall be sent, he shall select such port as he shall deem most convenient, in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which proceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treasurer of the United States most accessible to such court, and subject to its order in the cause. (See Sec. 1624, Art. 15.) "SEC. 4616. If any vessel of the United States shall claim to share in a prize, either as having made the capture, or as having been within sigual distance of the vessel or vessels making the capture, the commanding officer of such vessel shall make out a written statement of his claim, with the grounds on which it is founded, the principal facts tending to show what vessels made the capture, and what vessels were within signal distance of those making the capture, with reasonable particularity as to times, distances, localities, and signals made, seen, or answered; and such statement of claim shall be signed by him and sent to the court in which proceedings shall be had, and shall be filed in the cause. "SEC. 4617. The prize master shall make his way diligently to the selected port, and there immediately deliver to a prize commissioner the documents and papers, and the inventory thereof, and make affidavit that they are the same, and are in the same condition as delivered to him, or explaining any absence or change of condition therein, and that the prize property is in the same condition as delivered to him, or explaining any loss or damage thereto; and he shall further report to the district attorney and give to him all the information in his possession respecting the prize and her capture; and he shall deliver over the persons sent as witnesses to the custody of the marshal, and shall retain the prize in his custody until it shall be taken therefrom by process from the prize court. (See Sec. 5441.)" |