712 



1M11ZK. 



the acts of the master of the ship bind the owner 

 of the ship and the owner of the cargo. In respf t-t 

 to the owner of the ship, the general rule is, that 

 the acts of the master bind him as much as if the 

 acts were done personally by himself. This rule 

 is established upon the doctrine that the principal 

 is answerable for the acts of his agent, not only 

 civilly, but penally, to the extent of the property 

 intrusted to him. It would be difficult, in any 

 other way, for a court of prize to reach the pro- 

 prietor himself, however guilty he might be. And, 

 if the rule savours of hardship, it should be remem- 

 bered, that it is indispensable for the exercise of the 

 just rights of war, and to enforce the just duties of 

 neutrality. If the master has acted in contraven- 

 tion of the instructions of the ship-owner, he will 

 be responsible to the latter. If, therefore, the 

 master deviates into a blockaded port, the owner 

 is bound by his act, and is not permitted to aver 

 his ignorance, or that the master acted against 

 orders. The same principle applies to the carriage 

 of contraband goods. Grotius, and Bynkershoeck, 

 and Pothier, have contended for a more favourable 

 rule, where the owner is ignorant that contraband 

 goods are taken on board. The rule, however, has 

 been established by modern practice against their 

 opinions. But the acts of the master of the ship 

 do not bind the owner of the cargo, unless he is 

 also owner of the ship, or he has knowledge of the 

 unlawful intention, or the master is his agent. In 

 cases of blockade, the deviation into the blockaded 

 port is deemed to be in the service, and for the 

 benefit of the owner of the cargo, and therefore he 

 will be bound by the act, if he had knowledge of 

 the blockade at the time of the sailing of the ship ; 

 so if, at the time of the sailing of the ship, the 

 master puts himself under convoy of the enemy, it 

 will be presumed, that it is done with the consent 

 of the owner of the cargo. But where, from the 

 nature of the act occurring during the voyage, 

 upon an emergency which could not have been 

 foreseen by the shipper, it is clear that it is done 

 without the consent of the latter, the act will not 

 bind him, although the master is his agent. But it 

 will be different when the act might have been in 

 the contemplation of the parties at the beginning 

 of the voyage ; for, in such a case, ignorance will 

 not be allowed to excuse the shipper from the legal 

 results of the act of his agent. There are many 

 cases in which the acts of the master will bind the 

 owners, both of the ship and the cargo : such are 

 the resistance of the right of search, the rescue or 

 recapture of the ship by the master and crew after 

 capture, and the fraudulent suppression and spolia- 

 tion of. papers. It has been an agitated question, 

 whether the resistance of a right of search by a 

 belligerent master binds neutral property on board, 

 although it is admitted that the resistance of a 

 neutral master will bind all goods on board, to 

 whomsoever belonging. The English prize courts 

 have adhered to the affirmative, and the American 

 prize courts to the negative. And where a person 

 is the general agent of the whole cargo, and he 

 covers enemy property in the ship with his princi- 

 pal's property, the whole will be liable to condem- 

 nation, although his principal had no knowledge of 

 the illegal act ; so if he uses simulated papers ; for 

 the carriage of such papers is emphatically said to 

 be an efficient cause of condemnation. 



X. The rights and duties of captors. 1. From 

 what has been already stated, it is manifest that, 

 in many cases, it will be impossible to ascertain, 

 from the examination of the papers on board of a 

 ship, which is visited at sea, whether she is a 

 neutral or belligerent, and whether she is condemn- 



able or not. The captors therefore make the seizure 

 at their peril ; and if it turns out to be unjustifiable, 

 they are responsible for all damages arid costs 

 arising from their act. If, on the other hand, the 

 capture is justifiable, the captors are exempted 

 from all liability for damage and costs, whatever 

 may be the event, and even though the property 

 may be restored by the prize court as neutral. 

 They may even be entitled, in case of restitution, 

 to be paid their own costs and expenses, where 

 their conduct has been entirely correct. The cap- 

 tors, upon a justifiable capture, are considered as 

 having a bona fide possession ; and they are not 

 responsible for any subsequent losses or injuries to 

 the property from mere accident or casualty, as 

 from stress of weather, recapture by the enemy, 

 shipwreck, &c.; but they are responsible for all 

 losses to neutral property which are properly attri- 

 butable to their own negligence. Probable cause 

 of capture is a perfect justification to captors, even 

 though ultimately a restitution may be decreed. 

 It hence becomes a very important point to ascer- 

 tain what facts and circumstances constitute such 

 probable cause. These may be almost infinitely 

 varied, and it would be impossible to enumerate all 

 of them ; but some of the more common cases may 

 be stated. If the ship pretend to be neutral, and 

 has not the proper and usual documents on board 

 to verify her own character and that of the cargo ; 

 if the cargo be without a proper custom-house 

 clearance ; if the destination be falsely stated ; if 

 the papers on board be false or colourable, or be 

 suppressed, mutilated, or spoliated ; if the neutrality 

 of the cargo does not clearly appear ; if the voyage 

 be to or from a blockaded port ; if the traffic be 

 not legal to the parties engaged in it ; if the cargo 

 be of an ambiguous character, as to contraband, or 

 its destination be to a port of an ambiguous charac- 

 ter, as a port of military and naval equipment ; if 

 the conduct of the officers and crew of the vessel 

 give rise to just suspicions of their good faith, in 

 all such cases (and many others of a like nature 

 might be mentioned), there is sufficient probable 

 cause of capture to justify the captors. If any part 

 of the property is condemnable as prize, though the 

 bulk of the cargo may be restored, that constitutes 

 not merely probable but justifiable cause of cap- 

 ture. But even probable cause of capture will not 

 excuse captors from liability for any loss or damage 

 accruing afterwards from their own negligence or 

 misconduct ; for the title of a bona fide possessor 

 may be forfeited by such negligence or misconduct. 

 If, therefore, the prize be lost by the negligence or 

 misconduct of the prize officers and crew, from 

 neglect to take a pilot, or from want of a proper 

 prize crew, or from unskilful navigation, or from 

 any impropriety of a similar nature, the captors are 

 responsible to the full amount of the damage. But 

 mere irregularity alone will not make the captors 

 liable for damages, unless there is an irreparable 

 loss properly attributable thereto. 2. Next as to 

 the duties of captors. As soon as the capture of a 

 neutral is complete, it is the duty of the captors to 

 put a proper prize crew on board, and to send the 

 prize into some convenient port for adjudication. 

 The neutral crew, or a part of them, at least, are 

 to be kept on board, and are not to be treated 

 with severity, or handcuffed, or put in irons, 

 unless from extreme necessity. If the neutral 

 crew voluntarily undertake (which they are not 

 bound to do) to assist in the navigation, that 

 may dispense with the necessity of putting on 

 board a full prize crew. Captors are bound to 

 state to the master of the neutral vessel tl.e cause 

 of the capture, so as to give him an opportunity to 



