PART 5. PRIZE MONEY.

Whenever a vessel or cargo is adjudged good prize by the court it is publicly sold and the proceeds are decreed to the captors as prize money, unless they are non-commissioned or forfeit it by failure to observe the regulations imposed upon them for the conduct and safe keeping of the prize.[1] In England the proceeds of all vessels and cargoes, whether of a purely mercantile or of a military character are divided as prize money, though the government reserves the right of preemption on naval and victualling stores.[2] The rules which govern the prize court in adjudging a captured vessel good prize or not are beyond the scope of this paper. In general all enemy vessels are condemned, and neutral vessels are condemned for breach of blockade, carriage of contraband or unneutral service. These matters are at present largely covered by the Hague conventions of 1907 and the Declaration of London of 1909.[3] However as previously noted the crown reserves the right to free any vessel even though its capture was perfectly legal and it was of a class that would ordinarily be adjudged good prize.[4]

In the distribution of prize money there must be decided, first, what vessels are to share in the prize; second, what proportion each vessel is to get, and third, what proportion of the vessels share each officer and man on board is to receive.

The second and third points are settled by the prize proclamation which decrees division among the officers and men of all the vessels sharing according to the grade they occupy. There is no division among the vessels but all men entitled to share are grouped together in eleven grades, each one of which receives a fixed proportion of the prize money. This portion is then divided equally among all the men of that grade, no matter on what vessel they served. Thus a sailor on a vessel constructively assisting receives exactly the same share as a sailor of the same grade on the vessel making the actual capture.[5]

Where some of the vessels are allies the division is usually regulated by treaty. The provisions of Great Britain's treaties with France of 1854 and 1860 have already been noted.[6] In these cases division was to be made between the vessels of the allies according to the number of men on board irrespective of rank. Of course, for the share decreed to her own vessels, England employed her own rules of division. Where there is no treaty or some of the vessels are privateers the division among the vessels is decreed by the court, an effort being made to apportion it according to the relative strength of the vessels. To determine this the number of men, guns or both on the various vessels are considered. Thus Mansfield said,

"The law of nations does not determine but if one might guess at it, it must be in the ratio of the strength of the respective captors, to know which the number of guns, weight of metal, number of men and strength of each fleet must be stated."[7]

The court must decide the first question proposed, namely what vessels were either actual or joint captors and as such entitled to share. In defining these terms the court has said:

"All prize belongs absolutely to the crown which for the last 150 years has been in the habit of granting it to the takers who are of two classes, actual captors and joint or constructive captors. Joint captors are those who have assisted or are taken to have assisted the actual captors by conveying encouragement to them or intimidation to the enemy."[8] It is in general considered that this encouragement or intimidation is given by all vessels in sight but this is not always true. Thus:

"For it is perfectly clear that being in sight of all cases is not sufficient. What is the real and true criteria?---- There must be some actual, constructive endeavor as well as a general intention."[9]

But in the case of king's ships all in sight generally share.

"They are under a constant obligation to attack the enemy whenever seen. A neglect of duty is not to be presumed and therefore from the mere circumstance of being in sight a presumption is sufficiently raised that they are there animo capiendi."[10] This rule holds irrespective of the character of the vessel making the actual capture.

With privateers the case is different:

"For they are not under obligation to fight. It must be shown in their case that they were constructively assisting. The being in sight is not sufficient with respect to them to raise a presumption of cooperation in capture.--There must be the animus capiendi demonstrated by some overt act, by some variation of conduct which would not have taken place but with reference to that particular object and if the intention of acting against the enemy had not been effectually entertained."[11] As privateering has been abolished this rule is now purely theoretical.

These rules are subject to exceptions however as for instance in the case of captures made in the night or after a joint chase. In such cases ships of the navy definitely associated share though not in sight. Thus:

"A fleet so associated is considered as one body unless detached by orders or entirely separated by accident and what is done by one continuing to compose in fact a part of the fleet, enures to the benefit of all."[12]

A vessel shares in the captures of its tenders.

"I apprehend that the tender becomes as has been contended in law a part of the ship to which she has been attached and that any capture made by her enures to the benefit of the ship to which the tender is an adjunct."[13] Tenders are usually non-commissioned vessels but as they are considered agents of a commissioned vessel their captures are good. The same is true of captures made by ships boats but no constructive captures are allowed by boats of other vessels in sight.

Transport vessels do not participate as joint captors. A case involving transports arose in 1799. The court said:

"It has not been shown that these ships set out in an originally military character, or that any military character has been subsequently impressed upon them by the nature and course of their employment and therefore, however meritorious their services may have been and however entitled they may be to the gratitude of their country it will not entitle them to share in this valuable capture."[14]

The division of captures made by joint naval and military expedition are under the jurisdiction of prize courts. So far as possible the same principles of division are employed in dividing proceeds among soldiers of the army as in dividing prize money in the navy. In regard to the conditions that permit a joint land expedition to share the court said in 1799:

"Much more is necessary than a mere being to sight to entitle an army to share jointly with the navy in the capture of an enemy's fleet". A common interest is presumed with naval vessels in sight, not so with the army. "The services must be such as were directly or materially influencing the capture so that the capture could not have been made without such assistance or at least not certainly and without great hazard."[15] The prize act of 1864 now governs the division in joint military and naval captures.[16]

Captures made by non-commissioned ships which now includes all vessels not part of the royal navy go to the government.[17] Such captures were originally one of the Droits of Admiralty[18] but since the office of admiral has been in commission they enure to the crown. Peculiarly enough, though all such forfeitures now go to the crown the technical distinction of condemnation to the king, jure coronae and condemnation to the king in his office of admiralty. Droits of Admiralty is still maintained in the decrees of prize courts. By statute[19] all such Droits of Admiralty and Jure Coronae are now put into the consolidated fund of Great Britain. In practice it has usually happened that the greater part of the proceeds of captures made by non-commissioned captors is given to the captor as a special reward.[20] For this it appears that England does not recognize an international obligation to prevent captures by non-commissioned vessels in time of war. It is hard to reconcile this attitude with her adoption of the Declaration of Paris in 1856. She does not of course issue letters of Marque or officially permit capture by any vessels other than those of the royal navy. England has not been engaged in any important naval war since the treaty of Paris so it is impossible to say exactly what her practice in this regard would be. Legally all rights in captures by non-commissioned captors enure to the crown so if such vessels infringed on neutral rights England would undoubtedly refuse to give them any reward, which would soon have the effect of stopping such captures.

Definite rules are prescribed for the conduct of prizes, as for instance, the cargoes must not be tampered with, the holds must be closed, all necessary papers must be presented with the prize, the prize must be brought in without delay and proceedings must be commenced in the prize court without unreasonable delay.[21]

"It is to be observed that the captors have no right to convert property till it has been brought to legal adjudication. They are not even to break bulk."[22]

"The captor holds but an imperfect right; the property may turn out to belong to others, and if the captor put it in an improper place or keeps it with too little attention he must be liable to the consequences if the goods are not kept with the same caution with which a prudent person would keep his own property."[23]

Negligence on the part of the captors in caring for the prize or infringement of national or international laws on the subject will result in the forfeiture of all share of the prize[24] and indeed as already observed[25] without any fault on the part of the captor the crown may refuse the captors any share by returning the vessel as a matter of policy. This almost always occurs at the close of a war when it is usually provided by treaty that unadjudicated prizes should be returned. The captor's rights in prize are purely at the mercy of the crown. What he receives he receives by the crown's grace and not by legal right.

_NOTES._