“(3) If a capture made by a cruiser of one of the two countries shall have been adjudicated by the Courts of the other, the net proceeds of the prize, after deducting the necessary expenses, shall be made over in the same manner to the Government of the captor, to be distributed according to its laws and regulations.

"Art. V. The commanders of the vessels of war of their Majesties shall, with regard to the sending in and delivering up of prizes, conform to the instructions annexed to the present convention, and which the two Governments reserve to themselves to modify by common consent if it should become necessary.

"Art. VI. When in the execution of the present convention the valuation of a captured vessel of war shall be in question, the calculation shall be according to the real value of the same; and the allied Government shall be entitled to delegate one or more competent officers to concur in the valuation. In the case of disagreement, it shall be decided by lot which officer shall have the casting vote.

"Art. VII. The crews of the captured vessels shall be dealt with according to the laws and regulations of the country to which the present convention attributes the adjudication of the prizes.

INSTRUCTIONS REFERRED TO IN ARTICLE V TO THE COMMANDERS OF FRENCH AND ENGLISH SHIPS OF WAR

"Article 1. Whenever in consequence of a joint action you are required to draw up the report or procès-verbal of a capture, you will take care to specify with exactness the names of the ships of war present during the action, as well as the names of their commanding officers, and as far as possible the number of men embarked on board these ships at the commencement of the action without distinction of rank.

"You will deliver a copy of that report or procès-verbal to the officer of the allied Power who shall have had the superior command during the action, and you will conform yourself to the instructions of that officer, as far as relates to the measures to be taken for the conduct and the adjudication of the joint captures so made under his command.

"If the action has been commanded by an officer of your nation, you will conform yourself to the regulations of your own country, and you will confine yourself to handing over to the highest officer in rank of the allied Power, who was present during the action, a certified copy of the report or of the procès-verbal which you shall have drawn up.

"Article II. When you shall have effected a capture in presence and in sight of an allied ship of war, you will mention exactly, in the report which you will draw up, when the capture is a ship of war, and in the report or procès-verbal of the capture when the prize is a merchant vessel, the number of men on board your ship at the commencement of the action without distinction of rank, as well as the name of the allied ship of war which was in sight, and, if possible, the number of men embarked on board that ship, likewise without distinction of rank. You will deliver a certified copy of your report or procès-verbal to the commander of that ship.

"Article III. Whenever in the case of a violation of a blockade of the transport of contraband articles of land or sea troops of the enemy, or of official despatches from or for the enemy, you find yourself under the

necessary affidavits, in charge of one of the officers of his ship, to the nearest British prize court.

277. None but a British or an allied port can be a proper port of adjudication; although in cases of necessity hereafter considered, resort may be had to a neutral port.1

CHOICE OF PORT

"278. From the ports which are proper ports the commander should select the one which under all the circumstances shall appear most convenient. He should have regard, in the first place, to the exigencies of the public service, and in the second, the interests of all parties concerned, viz., the owners of the vessel and of the cargo and the captors. These interests (inter alia) require

"(1) That the port should be capable of giving security to the vessel.3

"(2) That it should not necessitate unlivery of the cargo.3

"(3) That it should be easily accessible to the prize court.3

"(4) That it should be as near as possible to the place of capture.

"279. If the commander in the selection unreasonably disregard the interests of the owners of the vessel and cargo, he will be liable in damages.

NAVIGATION OF THE PRIZE

"280. Having selected the port, the commander should appoint a prize officer to take charge.

"281. The commander may invite the master and crew of the prize to assist in navigating her to the port under the order of the prize officer, but if they refuse he will not be justified in coercing them."

"282. He should place under the command of the prize officer a prize crew sufficient for the safe conduct of the prize, having regard to her size, character, and condition, the length and nature of the voyage, the number of her crew, their disposition to co-operate or resist, and all other circumstances of the case.

WHAT IS TO BE SENT IN WITH THE PRIZE

"283. If possible the prize should be sent in in the same condition as when she was taken, with her master, crew, and all her cargo on board. Sometimes, however, it is impracticable for the commander wholly to fulfil this requisition.7

"284. The affidavits and ship's papers must be forwarded in the prize to the port of adjudication. If the affidavits have not been sworn at the time when the prize was despatched, it will be necessary that some person

1 "Henrick and Maria," 4 Rob., 43; "Comet," 5 Rob., 96; "Polka," Spinks, 57.

2 "Anna," 5 Rob., 373; "Hunter," I Dod., 482.

3 "Washington," 6 Rob., 275; "Principe," Edw. 70.

4 "Peacock," 4 Rob., 185; "Wilhelmsburg," 5 Rob., 143; "Anna," 5 Rob., 373; "Catherina Elizabeth," 1 Acton 309; "Maryland," I Acton, 310; "Hunter," I Dod., 482. "Pennsylvania," 1 Acton, 33.

5 "Resolution," 6 Rob., 13.

7 "Speculation," 2 Rob., 293; "Flying Fish," 2 Gall., 374.

should be sent with her, in whose charge the papers should be given, and who will be able upon the arrival of the prize to make the affidavits verifying the papers and to depose (if required) as to all the circumstances of the capture. If the affidavits have been duly sworn before the prize is sent in, they should, together with the ship's papers annexed thereto, be enclosed in an envelope securely sealed up and addressed to the Registrar of the Court before which the case is to be adjudicated, and should be given to the prize officer with directions to deliver the same unopened into the Registry.

INSURANCE OF PRIZE

"285. The risk attending the vessel and cargo until sold or released by order of a prize court falls upon the captors. Accordingly it lies with the commander to insure the prize and her cargo if he think any insurance advisable.1

DUTY OF CAPTOR IF UNABLE TO SEND IN THE WHOLE
OF THE CREW

"286. If it is impracticable to send in the whole of the crew in the prize, the commander should at least send three or four of the principal persons to be witnesses, amongst whom should be two of the following officers, viz. the master, supercargo, mate or boatswain.

"287. The commander should at the same time draw up an affidavit to be made by the prize officer, stating what persons have been removed and what is the cause of their removal. In default of directions from the Admiralty the affidavit may be in Form 8.

His Britannic Majesty's Navy, and belonging to His Majesty's ship make oath as follows:

day of

the Commander of the said ship captured the said vessel, the

"(1) On the

"(2) On the day of

in

19 , Captain

and detained her as lawful prize

the said Captain

previous to sending the prize in for adjudication removed from her

"(3) The cause of the said removal was

"Sworn, etc.

"A.B.

"288. All persons so removed should, as soon as possible, be forwarded to the port of adjudication; and in the meantime should be provided for either on board ship or on shore as may be found most convenient.

1 "Catherine and Anna," 4 Rob., 39.

DUTY OF CAPTOR IF CARGO IS UNFIT TO BE SENT IN

"289. If the cargo appears to be not in a fit condition to be sent in, the commander should cause a survey thereof to be made by the officers of his ship the best qualified for the duty.

"290. The surveying officer should report to the commander in writing; and the report should be signed by them and entered on the ship's log.

"291. If the surveying officers report that the cargo is not in a condition to be sent in, the commander should cause it to be sold.

"292. The sale may be made either on the spot or in any neutral port where the local authorities may allow such sale; and for the purpose of selling the cargo at a neutral port the commander may either send the prize in the first instance to such port, or cause the cargo to be transhipped and so forwarded.

"293. Previous to the sale the cargo, or such part as is intended to be sold, should be appraised. The appraisers should be competent persons as far as possible, and should be sworn to be impartial. The appraisement should be in writing.

294. The sale should be made by the authority and in presence of the prize officer, and if possible by public auction; and the proceeds of sale should be remitted without delay in pursuance of any regulations that may be made for this purpose by Order in Council, or in the absence of such regulation, into the Bank of England to the credit of His Majesty's Paymaster-General, or into the hands of some Government accountant; and the prize officer should draw up an affidavit of all the proceedings and annex thereto the report of the surveying officers, the appraisement, account sales and other documents, and take the same in the prize to the port of adjudication.

"295. In default of directions from the Admiralty, the affidavit may be in Form 9.

FORM NO. 9.

"The

"I, the undersigned, A.B.

master.

holding the rank of

His Britannic Majesty's Navy, and belonging to His Majesty's ship make oath as follows:

in

19 , I was appointed Prize for the purpose of

for adjudication.

day of

Officer in charge of the said vessel, the
taking her to the port of
"(2) In the course of the said voyage, namely on the
I removed from the said vessel the following, namely

"(3) The cause of the said removal was

"Sworn, etc.

"A.B.

DUTY OF CAPTOR IF PRIZE IS UNFIT TO BE SENT IN

"296. If the prize appears to be unfit to be sent in, the commander should cause a survey to be made thereof by the officers of his ship best qualified for the duty.

"297. The surveying officers should report to the commander in writing, and the report should be signed by them and entered on the ship's log.

"298. If the surveying officers report that the prize is not in a condition to be sent in, the commander should, if practicable, take her into the nearest neutral port that may be willing to admit her.

"299. The commander, however, must bear in mind that he cannot take the prize into a neutral port against the will of the local authorities, and that under no circumstances can proceedings for adjudication be instituted in a neutral country.1

"300. Both the cruiser and, if admitted, her prize are by the comity of nations exempt from the local jurisdiction.2

"301. If the prize is admitted into a neutral port, then in order that proceedings for adjudication may be duly instituted, the commander should forward the witnesses, together with the vessel's papers and necessary affidavits in charge of an officer of his ship, to the nearest British prize court.

"302. Amongst the affidavits must be one by the prize officer, stating the circumstances under which the prize was sent to a neutral port, and having the report of the surveying officers annexed thereto.

"303. In either of the following cases

"(1) If the surveying officers report the vessel not to be in a condition to be sent in; or

"(2) If the commander is unable to spare a prize crew to navigate the prize,

the commander should release the prize and cargo without ransom, unless there is clear proof that she belongs to the enemy.3

"304. But if in either of these cases there is clear proof that the prize belongs to the enemy, the commander should remove her crew and papers, and if possible her cargo, and then destroy the vessel. The crew and cargo (if saved) should then be forwarded to a proper port of adjudication in charge of a prize officer, together with the vessel's papers and the necessary affidavits. An affidavit should be made by the prize officer exhibiting the evidence that the prize belonged to the enemy, and the facts which rendered it impracticable to send her in for adjudication."

CODES DES PRISES

Regulations relating to capture, and the formalities of capture, proposed by the Institut de Droit International :-*

1 "Flad Oyen," 1 Rob., 135.

2 Attorney General's Opinions (U.S.), Vol. VII, 123.

3 "Actæon," 2 Dods., 48; "Felicity," 2 Dods., 381; "Leucade," Spinks, 238. 4 "Revue de Droit Inter.," Vol. XIX, 149.