proceed to adjudication in a court of prize, or refuse it and at once award damages. It is the duty of the captor, under the law of nations (affirmed by act of Congress), to send captured property in for adjudication by a court of his own country having competent jurisdiction.

Jecker v. Montgomery, 13 How. 498.

Wanton capture without probable cause subjects the captor to damages.

The Thompson, 3 Wall. 155; the Dashing Wave, 5 Wall. 170.

The British ship Restormel, laden with coal for the Spanish fleet, and which had followed the fleet from Porto Rico to Curaçao, was captured by a United States cruiser while endeavoring to enter the port of Santiago de Cuba, where the Spanish fleet then lay. Judge Locke, of the United States district court for the southern district of Florida, although he considered the ship liable to capture and her cargo, at least, to condemnation, being desirous to give the owners the benefit of every doubt, released the ship, but allowed nothing for freight or for costs or expenses. With reference to a claim which the master of the Restormel afterwards sought to make for the value of provisions supplied by him to the American prize crew, the Navy Department expressed the opinion "that the item of claim for provisions consumed by the prize crew should be considered, together with the claims for damages presented to the court, as a loss which resulted from the employment of the ship at the time of her capture and for which the captors were not liable."

Mr. Day, Sec. of State, to Sir Julian Pauncefote, British ambass., Aug. 6, 1898, MS. Notes to British Leg. XXIV. 276.

A claim was made by the master of the British vessel E. R. Nickerson for damages and losses consequent upon her alleged wrongful capture and detention by an American man-of-war. It appeared that the prize court, in discharging the vessel, decided that there was reasonable cause for capture. The Attorney-General held that, with the rendition of its decision, the jurisdiction of the prize court ended, but suggested that there appeared "to be ample jurisdiction in the Court of Claims to determine the case, either upon petition of the claimant or by reference and transmission from the Department of State." In this relation the Attorney-General called attention to section 1068 of the Revised Statutes of the United States, and to the authorities there cited in the margin, especially to the case of the United States v. O'Keefe, 11 Wall. 178.

Mr. Hay, Sec. of State, to Sir Julian Pauncefote, British ambass., Dec. 6, 1898, No. 1279, MS. Notes to British Leg. XXIV. 397.

See, also, same to same, No. 1409, April 17, 1899, id. 498.

The court having ordered in The Paquete Habana, 175 U. S. 677, that the proceeds of the vessels and cargoes should be restored to the claimants with compensatory and not punitive damages and costs, and it appearing that the damages allowed were excessive, the cases were remanded to the district court for further proceedings. It was also ordered that, under the circumstances of the case, the decree should be entered against the United States and not against the captors individually.

The Paquete Habana (1903), 189 U. S. 453.

(2) MEASURE.

§ 1227.

In a suit by the owners of captured property, lost through the fault and negligence of the captors, the value of the captured vessel, and the prime cost of the cargo, with all charges, and the premium of insurance, were allowed in ascertaining the damages.

The Anna Maria, 2 Wheat. 327.

A vessel and cargo having been condemned under the nonimportation laws, and a question having arisen as to whether damages should be computed from the date of the bond given for the appraised value of the cargo, or from the decree of condemnation of the district court, it was held "that the damages should be computed at the rate of six per centum on the amount of the appraised value of the cargo, including interest from the date of the decree of condemnation in the district court."

The Diana (1818), 3 Wheat. 58.

On an illegal capture the original wrongdoers may be made responsible beyond the loss actually sustained in case of gross and wanton outrage; but the owners of the offending privateer, who are only constructively liable, are not liable for punitive damages.

The Amiable Nancy, 3 Wheat. 546,

See Talbot v. Three Brigs, 1 Dall, 95.

If property has been wrongfully brought into the United States, and the duty paid by a wrongful captor, and a decree of restitution is made after a sale, the captor is liable on such a decree only for the balance, without interest, after deducting the amount paid as duties.

The Santa Maria, 10 Wheat. 431.

8. Extrait du Règlement du 21 Octobre 1744, concernant les prises faites sur mer, et la navigation des vaisseaux neutres pendant la guerre P. 87.

9. Règlement du 26 Juillet 1778, concernant la navgation des bâtimens neutres en temps de guerre. P. 88.

10. Danish Prize Instructions of 1810. P. 91.

11. Ordinances of Congress, Nov. 25, 1775, p. 103; Dec. 5, 1775, p. 104; Jan. 6, 1776, p. 105; March 23, 1776, p. 106; April 2, 1776, p. 166: April 3, 1776, p. 107; Nov. 15, 1776, p. 108; May 2, 1780, p. 109, and other ordinances to p. 128.

12. British Statutes and Prize Instructions. P. 129.

Prize courts are subject to the instructions of their own sovereign. In the absence of such instructions their jurisdiction and rules of decision are to be ascertained by reference to the known powers of such tribunals and the principles by which they are governed under the public law and the practice of nations.

The Amy Warwick, 2 Sprague, 123.

Prize courts are tribunals of the law of nations, and the jurisprudence they administer is a part of that law. They deal with cases of capture as distinguished from seizures; their decrees are decrees of condemnation, not of forfeiture; they judge the character and rela tions of the vessel and cargo, and not the acts of persons.

Speed, At. Gen., 1866, 11 Op. 445.

The equitable principle of prescription is applied by prize courts.

Sir W. Scott, The Mentor, 1 C. Rob. 179.

"All law is resolvable into general principles: The cases which may arise under new combinations of circumstances, leading to an extended application of principles, ancient and recognized, by just corollaries, may be infinite; but so long as the continuity of the orig inal and established principles is preserved pure and unbroken, the practice is not new, nor is it justly chargeable with being an innova tion on the ancient law; when, in fact, the court does nothing more than apply old principles to new circumstances.”

Lord Stowell, The Atalanta (1808), 6 C. Rob. 440, 458.

2. LIENS.

§ 1230.

A claim was made by an American merchant to certain goods which were libeled as enemy's property, and which were shipped by British merchants on their own

Prize-Lien on goods.

account and risk.

The claimant set up a lien (1) on some of the

goods on the ground of an advance made to the shippers by his agent in Great Britain in consideration of the consignment; and (2) on other goods on the ground that they were shipped to him in virtue of a general balance of account due to him as the shippers' factor. The court, Washington, J., said that the doctrine of a factor's lien for a balance of account, or of a consignee's lien for advances, was unknown in the prize courts, unless in special cases where the lien was imposed by a general law of the mercantile world, independently of any contract between the parties, as, for example, in the case of freight allowed on an enemy's goods seized in the vessel of a friend. The court therefore refused to allow further proof of the claimant's allegations.

Marshall, C. J., was absent. Livingston, J., dissented, saying that he could concur in the condemnation of the property only as subject to the claimant's lien.

The Frances (1814), 8 Cranch, 418.

That capture, jure belli, overrides previous liens; see, also, The Hampton, 5 Wall. 372; The Battle, 6 Wall. 498.

Under the principles of international law, mortgages on vessels captured. jure belli are to be treated only as liens subject to be overridden by the capture. The act of March 3, 1863, "to protect the liens upon vessels in certain cases," does not refer to captures jure belli, or modify the law of prize in any respect.

The Hampton, 5 Wall. 372.

The right of capture acts on the proprietary interest of the thing captured at the time of capture, and is not affected by the secret liens or private engagements of the parties.

The Carlos F. Roses, 177 U. S. 655.

3. FREIGHT.

$1231.

A vessel sailed from London to Amelia Island under a charter party by which she was to carry the outward cargo free, but was to receive freight for the return cargo at a rate greater than would have been paid if the return voyage had had no connection with the outward. On her outward voyage she was captured by a United States armed vessel, and her cargo was condemned as enemy property; but an allowance was made for freight to Amelia Island, as on a quantum meruit. The claimant of the cargo and the master of the ship having appealed, the latter contended that the outward and return voyage should be treated as one, and freight allowed as stipulated in the charter party. Marshall, C. J., delivering the opinion of the court,

held that the outward and return voyages were to be considered as distinct, and said: "The court can perceive no principle on which a cargo to be delivered freight free can be burthened with the freight agreed to be paid on a cargo to be afterwards taken on board. In this case, too, no sum in gross is to be paid for freight, but a sum depending on the quantity and quality of the return cargo. If the claim to freight on the return voyage, not commenced at the time of capture, can not be sustained, the court perceives no other rule which could have been adopted than that which the district court did adopt. Freight has been allowed on the whole voyage to Amelia Island, as on a quantum meruit. The captors not having appealed, no question can arise on the propriety of having allowed the ship any freight whatever. The court, however, will say that it is satisfied with the allowance which is made, and which is certainly an equitable one."

The Société (1815), 9 Cranch, 209, 212.

A neutral vessel, chartered for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any other port on the Baltic, and back to London, at a freight of 1,000 guineas, was captured on her way from London to St. Michaels and brought into the United States, where part of the cargo was condemned and part restored. Held, that freight was chargeable upon the whole cargo, the restored as well as the condemned.

The Antonia Johanna (1816), 1 Wheat. 159.

No question was raised below as to whether the whole freight for the whole voyage should be allowed, or only a pro rata freight, though the whole freight was decreed. Had the question been raised, it would, said the court, "have deserved grave consideration."

"It has been held, that the charter party is not the measure by which the captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, when a ship carrying on an ordinary trade, the charter party is undoubtedly the rule of valuation, unless impeached; the captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. But a very different rule is to be applied, when the trade is subjected to very extraordinary risk and hazard, from its connexion with the events of war, and the redoubled activity and success of the belligerent cruisers. 5 Rob. 82. The Twilling Riget.”

The Antonia Johanna (1816), 1 Wheat. 159, note by the reporter, p. 170.

The law of nations does not prohibit the carrying of enemies' goods in neutral vessels; so far from so doing, upon the condemnation of the