Destruction of Prize. adjudication, they may likewise be sold or destroyed, as the case may be. § 194. Since through adjudication by the Prize Courts the property of captured enemy private vessels becomes finally transferred to the belligerent whose forces made the capture, it is evident that then the captured vessel as well as her cargo may be destroyed. On the other hand, it is likewise evident that, since a verdict of a Prize Court is necessary for the appropriation of the prize to become final, a captured merchantman must as a rule not be destroyed instead of being conducted to the port of a Prize Court. There are, however, exceptions to the rule, but no unanimity exists in theory and practice as regards those exceptions. Whereas some1 consider the destruction of a prize allowable only in case of imperative necessity, others allow it in nearly every case of convenience. Thus, the Government of the United States of America, on the outbreak of war with England in 1812, instructed the commanders of her vessels to destroy at once all captures, the very valuable excepted, because a single cruiser, if ever so successful, could man a few prizes only, but by destroying each capture would be able to continue capturing, and thereby diminish constantly the enemy merchant fleet.3 And during the Civil War in America the cruisers of the Southern Confederated States destroyed all enemy prizes because there was no port open for them to bring prizes to. According to British practice, the captor is allowed to destroy the prize in only two cases-namely, first, when the prize 1 See, for instance, Bluntschli, § 672. 2 See, for instance, Martens, § 126, who moreover makes no difference between the prize being an enemy or a neutral ship. 3 U.S. Naval War Code (article 14) allows the destruction "in case of military or other necessity." * See Holland, Prize Law, §§ 303-304. is in such a condition as prevents her from being sent to any port of adjudication; and, secondly, when the capturing vessel is unable to spare a prize crew to navigate the prize into such a port. The Règlement international des prises maritimes of the Institute of International Law enumerates by its § 50 five cases in which destruction of the capture is allowed -namely (1) when the condition of the vessel and the weather make it impossible to keep the prize afloat; (2) when the vessel navigates so slowly that she cannot follow the captor and is therefore exposed to an easy recapture by the enemy; (3) when the approach of a superior enemy force creates the fear that the prize might be recaptured by the enemy; (4) when the captor cannot spare a prize crew; (5) when the port of adjudication to which the prize might be taken is too far from the spot where the capture was made. Be that as it may, in every case of destruction of the vessel the captor must remove crew, ship papers, and, if possible, the cargo, before the destruction of the prize, and must afterwards send crew, papers, and cargo to a port of a Prize Court for the purpose of satisfying the latter that both the capture and the destruction were lawful. But if destruction of a captured enemy merchantman can exceptionally be lawful, the question as to indemnities to be paid to the neutral owners of goods carried by the destroyed vessel requires attention. It seems to be obvious that, if the destruction of the vessel herself was lawful, and if it was not possible to remove her cargo, no indemnities need be paid. An illustrative case happened during the Franco-German War. On October 21, 1870, the French cruiser The whole matter is tho roughly discussed by Boeck, Nos. 268-285; Dupuis, Nos. 262-268, and Calvo, V. §§ 3028-3034. As regards destruction of a neutral prize, see below, § 431. Ransom of Prize. "Dessaix" seized two German merchantmen, the "Ludwig" and the "Vorwärts," but burned them because she could not spare a prize crew to navigate the prizes into a French port. The neutral owners of part of the cargo claimed indemnities, but the French Conseil d'État refused to grant indemnities on the ground that the action of the captor was lawful.1 § 195. Although prizes have regularly to be brought before a Prize Court, International Law nevertheless does not forbid the ransoming of the captured vessel either at once after the capture or after she has been conducted to the port of a Prize Court, but before the Court has given its verdict. However, the practice of accepting and paying ransom, which grew up in the seventeenth century, is in many countries now prohibited by Municipal Law. Thus, for instance, Great Britain by section 45 of the Naval Prize Act, 1864, prohibits ransoming except in such cases as may be specially provided for by an Order of the King in Council. Where ransom is accepted, a contract of ransom is entered into by the captor and the master of the captured vessel; the latter gives a so-called ransom bill to the former, in which he promises the amount of the ransom. He is given a copy of the ransom bill for the purpose of a safe-conduct preventing his vessel from again being captured, under the condition that he keeps the course to such port as is agreed upon in the ransom bill. To secure the payment of ransom, an officer of the captured vessel can be retained as hostage, otherwise the whole of the crew is to be liberated with the vessel, ransom being an equivalent for both the restoration of the prize and the release of her crew from captivity. As long as the 'See Calvo, V. § 3033; Dupuis, No. 262; Hall, § 269. ransom bill is not paid, the hostage can be kept in captivity. But it is exclusively a matter of Municipal Law of every State to determine whether or not the captor can sue upon the ransom bill, if the ransom is not voluntarily paid.1 Should the capturing vessel, with the hostage or the ransom bill on board, be captured herself and thus become a prize of the enemy, the hostage is liberated, the ransom bill loses its effect, and it need not now be paid.2 Prize, ture. § 196. A prize is lost-(1) when the captor inten- Loss of tionally abandons her, (2) when she escapes through especially being rescued by her own crew, or (3) when she is Recaprecaptured. Just as through capture the prize becomes, according to International Law, the property of the belligerent whose forces made the prize, provided a Prize Court confirms the capture, so such property is lost when the prize vessel becomes abandoned, or escapes, or is recaptured. And it seems to be obvious, and everywhere recognised by Municipal Law, that as soon as a captured enemy merchantman succeeds in escaping, the proprietorship of the former owners revives ipso facto. But the case is different when a captured vessel, whose crew remain prisoners on board the capturing vessel, is abandoned and afterwards met and taken possession of by a neutral vessel or by a vessel of her home State. It is certainly not for International Law to determine whether or not the original proprietorship revives through abandonment. This is a matter of Municipal Law. See Hall, § 151, p. 479:"The English Courts refuse to accept such arrangements (for ransom) from the effect of the rule that the character of an alien enemy carries with it a disability to sue, and compel payment of the debt indirectly through an action brought by the imprisoned hostage for the recovery of his freedom." The matter of ransom is Fate of Prize. The case of recapture is likewise different from escape. §197. Through being captured and afterwards condemned by a Prize Court, a captured enemy vessel and captured enemy goods become the property of the belligerent whose forces made the capture. What becomes of the prize after the condemnation is not for International, but for Municipal Law to determine. A belligerent can hand the prize over to the officers and crew who made the capture, or can keep her altogether for himself, or can give a share to those who made the capture. As a rule, prizes are sold after they are condemned, and the whole or a part of the net proceeds is distributed among the officers and crew who made the capture. For Great 1 So, for instance, France; see Dupuis, Nos. 278–279. |