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meaning of the treaty provision which contemplates temporary asylum for vessels of war accompanying prizes while en route to the places named in the commander's commission, but not the deposit of spoils of war in an American port. . . . Under this construction of the treaty the Appam can enjoy only those privileges usually granted by maritime nations, including Germany, to prizes of war, namely, to enter neutral ports only in case of stress of weather, want of fuel and provisions or necessity of repairs, but to leave as soon as the cause of their entry has been removed.
This ruling of the Department of State thus accords with American precedent as established in the case of the treaty with France, and further emphatically states the general international rule. As the Supreme Court puts it:
Certainly such use of a neutral port is very far from that contemplated, which made provision only for temporary asylum for certain purposes, and cannot be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government.
On the broad questions of international law, in addition to those heretofore considered, counsel for the German Government, especially in their argument before the Supreme Court, based their claims largely, if not mainly, upon lack of jurisdiction in the court to entertain such a suit. The rights of the British owners, so the argument ran, had been extinguished upon the capture of the vessel, which in itself transferred title to Germany, and, even admitting that the United States might have excluded such vessels as a matter of law or policy from their ports, no court was empowered to restore such a vessel to the original owners, who had lost every scintilla of right and title therein. This argument pressed with vigor, might seem upon superficial examination to present considerable plausibility. It was, however, of a highly technical character and is scarce alluded to in the opinion of the court.
It was admitted that from the beginning of the Republic our courts have taken jurisdiction: (1) In cases of capture in our territorial waters; and (2) In cases where the capturing vessel had fitted out or increased her crew or armament in an American port. The jurisdiction of our courts in this class of cases was directly derived from the Constitution, and not dependent upon statutory enactments. In the famous case of The Betsey (3 Dall. 6), decided prior to the enactment of the first
neutrality statute, the Supreme Court held that the Federal Courts had jurisdiction in all such cases, and the proposition has not since been questioned.
It was strenuously endeavored to differentiate these cases on the ground that, as there had been no illegality in the capture, complete title had passed and the original owners were thus deprived of all standing in court, and that the question of prize was one for the German Prize Court, over which it had exclusive jurisdiction. The vice of this argument, however, lay in the assumption that full title passed at the moment of capture. It ignored the fact that while the vessel remained in the condition of a mere prize, recapture might be effected and in the event of recapture the rights of the lawful owner would revest.
From early times it has been held that mere capture is not sufficient to divest the title of the owner. The requirements for such divestment have fluctuated somewhat. Early cases held the rule of pernoctation or twenty-four hours firm possession, but later cases held the rule of infra praesidia, and finally the rule now established is that the vessel must be brought within the jurisdiction of the proper prize court and that the rights of the owner are not completely divested until a decision is there had. When a vessel captured by an enemy warship is recaptured, we say that the title of the original owners reverts or is reestablished. It might be more exact to say that their right, menaced with extinction by the establishment and perfection of an adverse right, has been freed from this menace; and that the full exercise of their right has again become possible. This construction is more satisfactory; because it is clear that, if the enemy state had acquired full title by capture, recapture would logically vest title not in the original owners, but in their government.
The rule is as old as the Consulatus Maris. It could not be better stated than in the opinion of Justice Storey, in the case of The Star, 3 Wheaton, 78, 86:
It is admitted, on all sides, by public jurists, that in cases of capture a firm possession changes the title of the property; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture, or on the pernoctation, or on the carrying infra praesidia of the prize; it is universally allowed that, at all events, a sentence of condemnation completely
extinguishes the title of the original proprietor, and transfers a rightful title to the captors or their sovereign.
This rule is indeed in conformity with common sense. Had the Appam attempted to go to the nearest German port it would have risked almost certain capture by British cruisers; it followed the much safer course of traveling more than twice the distance and taking refuge in an American port. It was thus by the interposition of an American port between the Appam and the British fleet that the German Government hoped to save the vessel for their future benefit. Had not this illegal use of an American port been resorted to the vessel would in all human probability have been recaptured and restored to its former owners. The rule of law is thus in consonance with the dictates of common sense. Bluntschli himself says:
1. Up to the time when the tribunal has taken jurisdiction and condemned the prize the fate of the latter is uncertain; neither the captor nor his government have as yet rights over the vessel or its cargo, the prize resting up to the date of the judgment merely upon the right of the stronger; the seizure may be annulled by force. This is a special application of the rights of post liminium and in integrum restitutio.
2. The recapture has effects essentially negative; it annuls the capture (prise). It does not even constitute a new capture (prise). The recaptor must then respect the goods which he has saved from the hands of the enemy and for his service can only claim a recompense. 8
And he again states the rule: “The recapture of captured vessels may take place so long as prize courts have not pronounced upon the validity of the capture."
We find upon this point French and German in agreement, for one of the leading modern commentators, Bonfils, formulates the proposition very happily thus:
No. 1416. Recaptions. A merchant ship is captured by a hostile war vessel, then recaptured by a war ship of its own nation. What are the effects of this rescue? Do the ship and its cargo revert to their owners, or do they become the property of the recapturing government? From the point of view of jurisprudence this question, it would seem, ought to raise no difficulty. Until the judgment passed upon the validity of the capture shall recognize its legitimacy and shall order the confiscation of the ship and of the cargo, the captor has acquired no right
: International Law Codified, paragraph 860, notes.
of ownership. The right of the owner who has been dispossessed has been paralyzed but not extinguished. The recaptor can have no more right than those from whom he has recaptured the prize. The owner ought then to re-enter into possession of the property taken from him by violence. Such a decision is logical and in accordance with the spirit of justice.
The solution of this question could be different only if it were assumed that the very fact of capture per se transferred to the captor the ownership of the captured ship and cargo. Under this assumption whatever right the original captor had acquired by the capture would pass to the recaptor.
This rule is embodied in the United States Prize Act, U. S. Revised Statutes, section 4652.
It is, therefore, not to be wondered at that the Supreme Court promptly but effectively disposes of the question as follows:
The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people. It is fortunate that in a case of such far-reaching importance, involving fundamental propositions of international law, both our Executive and our courts have passed upon the question after most mature consideration and have reached similar conclusions embodied in definite, authoritative decisions.
FREDERIC R. COUDERT.
RIGHT OF THE MASTER AND CREW OF A
A MERCHANT ship captured in war by a cruiser is commonly put in the hands of a prize crew and, often with her own master and crew aboard, directed to proceed to the nearest port of the captor available for adjudication as to prize or no prize.
The cases in which the original master and crew have, during such transit, risen against the prize crew and, by force or fraud or both regained control of the ship are fairly numerous. It is proposed to examine the legality of such a course, and the rights derived therefrom; also the rights in the premises of the belligerent whose possession is displaced.
Bouvier lays down the rule that “Rescue differs from recapture. The rescuers do not by the rescue become owners of the property, as if it had been a new prize, but the property is restored to the original owners by the right of post liminium.” i
In the first place, it must be observed, that on the capture of a neutral vessel no title whatever is divested and none passes to the captor, until adjudication. In the meantime possession got by force may be kept by force and likewise may be displaced by force. If it is so displaced by the original master and crew, it is not a recapture but a rescue, and the original title is merely freed from the forcible possession of the enemy and exists unencumbered as before capture. As soon as the ship reaches a port in her own sovereignty, liability to any penalty for such rescue ceases, and if captured on a subsequent voyage, she cannot be condemned for the former transaction. The lien of the captor, as it were, is destroyed when possession ceases. No adjudication is necessary to restore the title of the original owner, which has never ceased to exist. It was encumbered by the enemy's possession; that being ended, the title resumes its freedom and exists as before capture. 1 Bouvier's Law Dictionary, title, “Rescue in Maritime Law.”