guerre de sa nation est exempt de visite. Le motif en est que le
croiseur belligérant doit trouver dans les affirmations du commandant du
convoi la garantie que lui procurerait l'exercice même du droit de
visite; il ne peut, en effet, révoquer en doute ces affirmations,
données par l'agent officiel d'un Gouvernement neutre, sans manquer à la
courtoisie internationale. Si les Gouvernements neutres laissent les
belligérants visiter les navires portant leur pavillon, c'est qu'ils ne
veulent pas prendre la charge de la surveillance de ces navires, et
qu'alors ils permettent aux belligérants de se protéger eux-mêmes. La
situation change quand un Gouvernement neutre entend prendre cette
charge; le droit de visite n'a plus la même raison d'être.
Mais il résulte de l'explication de la règle donnée pour le convoi que
le Gouvernement neutre s'engage à donner aux belligérants toute garantie
que les navires convoyés ne profitent pas de la protection qui leur est
assurée pour agir contrairement à la neutralité--par exemple, pour
transporter de la contrebande de guerre, pour fournir à un belligérant
une assistance hostile, pour tenter de violer un blocus. Il faudra donc
une surveillance sérieuse exercée au départ sur les navires devant être
convoyés, et cette surveillance devra se poursuivre au cours du voyage.
Le Gouvernement devra procéder avec vigilance pour empêcher tout abus du
convoi, et il donnera en ce sens des instructions précises à l'officier
chargé de commander un convoi.
Un croiseur belligérant rencontre un convoi: il s'adresse au commandant
de ce convoi, qui doit, sur sa demande, lui donner par écrit toutes les
informations utiles sur les navires qui sont sous sa protection. On
exige une déclaration écrite, parce qu'elle empêche les équivoques et
les malentendus, qu'elle engage plus la responsabilité du commandant.
Cette déclaration a pour but de rendre la visite inutile par le fait
même qu'elle procure au croiseur les renseignements que la visite
elle-même lui aurait fournis.
Article 62.
_Si le commandant du bâtiment de guerre belligérant a lieu de soupçonner
que la religion du commandant du convoi a été surprise, il lui
communique ses soupçons. C'est au commandant du convoi seul qu'il
appartient en ce cas de procéder à une vérification. Il doit constater
le résultat de cette vérification par un procès-verbal dont une copie
est remise à l'officier du bâtiment de guerre. Si des faits ainsi
constatés justifient, dans l'opinion du commandant du convoi, la saisie
d'un ou de plusieurs navires, la protection du convoi doit leur être
retirée._
Le plus souvent le croiseur s'en tiendra à la déclaration que lui aura
donnée le commandant du convoi, mais il peut avoir de sérieuses raisons
de croire que la religion de ce commandant a été surprise, qu'un navire
convoyé dont les papiers paraissent en règle, et ne présentent rien de
suspect, transporte, en fait, de la contrebande adroitement dissimulée.
Le croiseur peut communiquer ses soupçons au commandant du convoi. Une
vérification peut être jugée nécessaire. Elle est faite par le
commandant du convoi; c'est lui seul qui exerce l'autorité sur les
navires placés sous sa protection. Il a paru toutefois que l'on
éviterait souvent bien des difficultés, s'il était permis au belligérant
d'assister à cette vérification; autrement il lui serait toujours
possible de suspecter, sinon la bonne foi, du moins la vigilance ou la
perspicacité du visiteur. Mais on n'a pas cru devoir imposer au
commandant du convoi l'obligation de laisser l'officier du croiseur
assister à la vérification. Il agira comme il le jugera bon: s'il
accepte l'assistance d'un officier du croiseur, ce sera un acte de
courtoisie ou de bonne politique. Il devra, dans tous les cas, dresser
un procès-verbal de la vérification et en donner une copie à l'officier
du croiseur.
Des divergences peuvent s'élever entre les deux officiers, spécialement
à propos de la contrebande conditionnelle. Le caractère du port auquel
sont destinés des blés peut être contesté; est-ce un port de commerce
ordinaire? est-ce un port qui sert de base de ravitaillement pour les
forces armées? La situation de fait produite par le convoi doit être, en
ce cas, maintenue. Il pourra seulement y avoir une protestation de la
part de l'officier du croiseur, et la difficulté sera réglée par la voie
diplomatique.
La situation est tout autre si un navire convoyé est trouvé porteur de
contrebande sans qu'une contestation puisse s'élever. Le navire n'a plus
droit à la protection, parce que la condition à laquelle cette
protection était subordonnée n'a pas été remplie. Il a trompé son propre
Gouvernement d'abord et essayé de tromper un belligérant. Il doit alors
être traité comme un navire de commerce neutre qui, dans les
circonstances ordinaires, rencontre un croiseur belligérant et est
visité par lui. Il ne peut se plaindre d'être ainsi traité
rigoureusement, parce qu'il y a dans son cas une aggravation de la faute
commise par un transporteur de contrebande.
CHAPITRE VIII.--_De la résistance à la visite._
Le sujet traité dans ce chapitre n'est pas mentionné dans le programme
soumis en février 1908 par le Gouvernement Britannique; il se rattache
étroitement à plusieurs des questions de ce programme, aussi s'est-il
naturellement présenté à l'esprit au cours des discussions, et il a paru
nécessaire de poser une règle sur laquelle on s'est facilement accordé.
Un croiseur belligérant rencontre un navire de commerce et le somme de
s'arrêter pour qu'il soit procédé à la visite. Le navire sommé ne
s'arrête pas et essaie de se soustraire à la visite par la fuite. Le
croiseur peut employer la force pour l'arrêter, et le navire de
commerce, s'il est avarié ou coulé, n'a pas le droit de se plaindre,
puisqu'il a contrevenu à une obligation imposée par le droit des gens.
S'il est arrêté et s'il est établi que c'est seulement pour éviter les
ennuis de la visite qu'il avait recouru à la fuite, qu'il n'avait
d'ailleurs commis aucun acte contraire à la neutralité, il ne sera pas
puni pour sa tentative. S'il est constaté, au contraire, que le navire a
de la contrebande à bord ou qu'il a, d'une façon quelconque, violé ses
devoirs de neutre, il subira les conséquences de son infraction à la
neutralité, mais il ne subira non plus aucune peine pour avoir tenté la
fuite. Certains pensaient, au contraire, que le navire devrait être puni
pour une tentative de fuite caractérisée comme pour une résistance
violente. La possibilité de la confiscation engagerait, disait-on, le
croiseur à ménager, dans la mesure du possible, le navire en fuite. Mais
cette idée n'a pas prévalu.
Article 63.
_La résistance opposée par la force à l'exercice légitime du droit
d'arrêt, de visite et de saisie, entraîne, dans tous les cas, la
confiscation du navire. Le chargement est passible du même traitement
que subirait le chargement d'un navire ennemi; les marchandises
appartenant au capitaine ou au propriétaire du navire sont considérées
comme marchandises ennemies._
La situation est différente s'il y a résistance violente à l'action
légitime du croiseur. Le navire commet un acte d'hostilité et doit, dès
lors, être traité en ennemi; il sera donc soumis à confiscation, quand
même la visite ne révélerait aucun fait contraire à la neutralité, et
cela semble ne pouvoir soulever aucune difficulté.
Que faut-il décider du chargement? La formule qui a semblé la meilleure
est celle d'après laquelle ce chargement sera traité comme celui qui
serait à bord d'un navire ennemi. Cette assimilation entraîne les
conséquences suivantes: le navire neutre qui a résisté devenant navire
ennemi, la marchandise se trouvant à bord est présumée ennemie. Les
neutres intéressés pourront réclamer leur propriété, conformément à la
3'e règle de la Déclaration de Paris, mais la marchandise ennemie sera
confisquée parce que la règle _le pavillon couvre la marchandise_ ne
peut plus être invoquée, le navire saisi sur lequel elle se trouve étant
considéré comme ennemi. On remarquera que le droit de réclamer la
marchandise est reconnu à tous les neutres, même à ceux qui ont la
nationalité du navire saisi; il paraîtrait excessif de les faire
souffrir de l'acte du capitaine. Il y a toutefois une exception à
l'égard des marchandises appartenant au propriétaire du navire. Il
semble naturel qu'il supporte les conséquences des actes de son agent.
Sa propriété à bord du navire sera donc traitée en marchandise ennemie.
A plus forte raison, en est-il de même de la marchandise appartenant au
capitaine.
CHAPITRE IX.--_Des dommages et intérêts._
Ce chapitre a une portée très générale, puisque la disposition qu'il
contient trouve son application dans les cas nombreux où un croiseur
peut saisir un navire ou des marchandises.
Article 64.
_Si la saisie du navire ou des marchandises n'est pas validée par la
juridiction des prises ou si, sans qu'il y ait eu de mise en jugement,
la saisie n'est pas maintenue, les intéressés ont droit à des dommages
et intérêts, à moins qu'il y ait eu des motifs suffisants de saisir le
navire ou les marchandises._
Un croiseur a saisi un navire neutre, par exemple, pour transport de
contrebande ou violation de blocus. Le tribunal des prises relâche le
navire en annulant la saisie. Cela ne suffit évidemment pas à dédommager
les intéressés de la perte éprouvée par suite de la saisie, et cette
perte a pu être considérable, puisque le navire a été, pendant un temps
souvent très long, empêché de se livrer à son trafic ordinaire.
Peuvent-ils demander à être indemnisés de ce préjudice? Rationnellement
il faut admettre l'affirmative, si ce préjudice est immérité,
c'est-à-dire si la saisie n'a pas été amenée par leur faute. Il peut
arriver, en effet, que la saisie ait été motivée, parce que le capitaine
du navire visité n'a pas produit des justifications qui devaient se
trouver normalement à sa disposition et qui ont été fournies plus tard.
Dans ce cas, il serait injuste que des dommages et intérêts fussent
accordés. A l'inverse, s'il y a eu vraiment faute du croiseur, s'il a
saisi dans un cas où il n'y avait pas de motifs suffisants de le faire,
il est juste que des dommages et intérêts soient alloués.
Il peut arriver aussi qu'un navire saisi et conduit dans un port ait été
relaxé par voie administrative sans intervention d'un tribunal de
prises. En pareil cas, la pratique varie: dans certains pays, la
juridiction des prises n'intervient que dans le cas d'une capture et ne
pourrait statuer sur une demande de dommages-intérêts fondée sur ce que
la saisie aurait été injustifiée; dans d'autres, la juridiction des
prises serait compétente pour une demande de ce genre. Il y a là une
inégalité peu équitable et il convient d'établir une règle qui produise
le même effet dans tous les pays. Il est raisonnable que toute saisie
pratiquée sans motifs suffisants donne droit à des dommages-intérêts au
profit des intéressés, sans qu'il y ait à distinguer suivant que la
saisie a été ou non suivie d'une décision du tribunal des prises, et
d'autant plus que c'est quand la saisie aura été le moins justifiée, que
le navire pourra être relaxé par voie administrative. On a donc employé
une formule générale pouvant comprendre tous les cas de saisie.
Il convient de remarquer que la question de savoir si les tribunaux
nationaux de prises sont compétents pour statuer sur les
dommages-intérêts n'est pas visée dans le texte. En tant qu'il y a un
procès sur les propriétés saisies, aucun doute n'est possible. Dans la
procédure engagée sur la validité de la capture, les intéressés auront
l'occasion de faire valoir leur droit à une indemnité, et, si la
décision du tribunal national ne leur donne pas satisfaction, ils
pourront se pourvoir devant la Cour Internationale des prises. Si, au
contraire, l'action du belligérant s'est bornée à une saisie, la
législation du belligérant capteur décide si des tribunaux sont
compétents pour connaître d'une demande en indemnité et, en cas
d'affirmative, quels tribunaux sont compétents dans l'espèce; la Cour
Internationale n'a, dans ce cas, aucune compétence d'après la Convention
de La Haye. Au point de vue international, la voie diplomatique est la
seule ouverte pour faire valoir la réclamation, qu'il s'agisse de se
plaindre d'une décision effectivement rendue ou de suppléer à l'absence
de juridiction.
On a posé la question de savoir s'il y avait lieu de distinguer les
dommages directs et les dommages indirects subis par le navire ou la
marchandise. Il a semblé qu'il valait mieux laisser la juridiction des
prises libre d'apprécier le dédommagement dû, qui variera suivant les
circonstances et dont le montant ne peut être déterminé à l'avance par
des règles trop minutieuses.
Il n'a été parlé que du navire pour simplifier; mais ce qui a été dit
s'applique naturellement à la cargaison saisie, puis relâchée. Ainsi la
marchandise innocente, se trouvant à bord du navire saisi, subit tous
les inconvénients de la saisie du navire. S'il y a eu des motifs
suffisants de saisir le navire, que cette saisie soit maintenue ou non,
les propriétaires de la cargaison n'ont aucun droit à des dommages et
intérêts.
Il peut être utile d'indiquer certains cas dans lesquels la saisie du
navire serait justifiée, quelle que pût être la décision du tribunal des
prises. C'est notamment celui de jet, de suppression ou de destruction
volontaire de tout ou partie des papiers de bord, provenant du fait du
capitaine, de quelqu'un de l'équipage ou des passagers. Il y a là
quelque chose qui justifie tous les soupçons et qui explique que le
navire soit saisi, sauf au capitaine à rendre compte de sa conduite
devant le tribunal des prises. Même si ce tribunal acceptait les
explications données et ne trouvait pas de causes suffisantes de
confiscation, les intéressés ne pourraient songer à réclamer des
dommages-intérêts.
Un cas analogue serait celui où l'on trouverait à bord des papiers
doubles, faux, ou falsifiés, alors que cette irrégularité se rattache à
des circonstances de nature à influer sur la saisie du navire.
Il a semblé suffisant que ces cas où la saisie s'expliquerait
raisonnablement fussent mentionnés dans le Rapport sans faire l'objet
d'une disposition expresse, et cela parce que l'indication de deux cas
particuliers aurait pu faire croire que c'étaient les seuls dans
lesquels la saisie se justifierait.
Tels sont les principes de droit international que la Conférence Navale
s'est efforcée de reconnaître comme propres à régir pratiquement les
rapports des peuples dans d'importantes matières pour lesquelles des
règles précises faisaient jusqu'à présent défaut. Elle a continué ainsi
l'oeuvre de codification commencée par la Déclaration de Paris de 1856.
Elle a travaillé dans le même esprit que la Deuxième Conférence de la
Paix et, profitant des travaux faits à La Haye, elle a pu résoudre un
certain nombre de problèmes que, faute de temps, cette Conférence avait
dû laisser sans solution. Souhaitons que l'on puisse dire que ceux qui
ont élaboré la Déclaration de Londres de 1909 n'ont pas été trop
indignes de leurs prédécesseurs de 1856 et de 1907.
DISPOSITIONS FINALES.
Ces dispositions ont trait à diverses questions qui touchent à l'effet
de la Déclaration, à sa ratification, à sa mise en vigueur, à sa
dénonciation, à l'adhésion des Puissances non représentées.
Article 65.
_Les dispositions de la présente Déclaration forment un ensemble
indivisible._
Cet article est très important et conforme à ce qui avait été admis pour
la Déclaration de Paris.
Les règles contenues dans la présente Déclaration touchent à des points
très importants et très différents. Elles n'ont pas toutes été acceptées
avec le même empressement par toutes les Délégations; des concessions
ont été faites sur un point en vue de concessions obtenues sur un autre.
L'ensemble a été, tout balancé, reconnu satisfaisant. Une attente
légitime serait trompée, si une Puissance pouvait faire des réserves à
propos d'une règle à laquelle une autre Puissance attache une importance
particulière.
Article 66.
_Les Puissances Signataires s'engagent à s'assurer, dans le cas d'une
guerre où les belligérants seraient tous parties à la présente
Déclaration, l'observation réciproque des règles contenues dans cette
Déclaration. Elles donneront, en conséquence, à leurs autorités et à
leurs forces armées les instructions nécessaires et prendront les
mesures qu'il conviendra pour en garantir l'application par leurs
tribunaux, spécialement par leurs tribunaux de prises._
D'après l'engagement qui résulte de cet article, la Déclaration
s'applique dans les rapports entre les Puissances Signataires, quand les
belligérants sont également parties à la Déclaration.
Ce sera à chaque Puissance à prendre les mesures nécessaires pour
assurer l'observation de la Déclaration. Ces mesures pourront varier
suivant les pays, exiger ou non l'intervention du pouvoir législatif.
C'est une affaire d'ordre intérieur.
Il faut remarquer que les Puissances neutres peuvent être aussi dans le
cas de donner des instructions à leurs autorités, spécialement aux
commandants des convois, comme on l'a vu plus haut.
Article 67.
_La présente Déclaration sera ratifiée aussitôt que possible._
_Les ratifications seront déposées à Londres._
_Le premier dépôt de ratifications sera constaté par un procès-verbal
signé par les Représentants des Puissances qui y prennent part, et par
le Principal Secrétaire d'État de Sa Majesté Britannique au Département
des Affaires Étrangères._
_Les dépôts ultérieurs de ratifications se feront au moyen d'une
notification écrite adressée au Gouvernement Britannique et accompagnée
de l'instrument de ratification._
_Copie certifiée conforme du procès-verbal relatif au premier dépôt de
ratifications, des notifications mentionnées à l'alinéa précédent, ainsi
que des instruments de ratification qui les accompagnent, sera
immédiatement, par les soins du Gouvernement Britannique et par la voie
diplomatique, remise aux Puissances Signataires. Dans les cas visés par
l'alinéa précédent, ledit Gouvernement leur fera connaître en même temps
la date à laquelle il a reçu la notification._
Cette disposition toute de protocole n'a pas besoin d'explication. On a
emprunté la formule admise à La Haye par la Deuxième Conférence de la
Paix.
Article 68.
_La présente Déclaration produira effet, pour les Puissances qui
auront_ _participé au premier dépôt de ratifications, soixante jours
après la date du procès-verbal de ce dépôt et, pour les Puissances qui
ratifieront ultérieurement, soixante jours après que la notification de
leur ratification aura été reçue par le Gouvernement Britannique._
Article 69.
_S'il arrivait qu'une des Puissances Signataires voulût dénoncer la
présente Déclaration, elle ne pourra le faire que pour la fin d'une
période de douze ans commençant à courir soixante jours après le premier
dépôt de ratifications et, ensuite, pour la fin de périodes successives
de six ans, dont la première commencera à l'expiration de la période de
douze ans._
_La dénonciation devra être, au moins un an à l'avance, notifiée par
écrit au Gouvernement Britannique, qui en donnera connaissance à toutes
les autres Puissances. Elle ne produira ses effets qu'à l'égard de la
Puissance qui l'aura notifiée._
Il résulte implicitement de l'article 69 que la Déclaration à une durée
indéfinie. Les périodes après lesquelles la dénonciation peut se faire
ont été fixées par analogie de ce qui est admis dans la Convention pour
l'établissement d'une Cour Internationale des prises.
Article 70.
_Les Puissances représentées à la Conférence Navale de Londres,
attachant un prix particulier à la reconnaissance générale des règles
adoptées par elles, expriment l'espoir que les Puissances qui n'y
étaient pas représentées adhéreront à la présente Déclaration. Elles
prient le Gouvernement Britannique de vouloir bien les inviter à le
faire._
_La Puissance qui désire adhérer notifie par écrit son intention au
Gouvernement Britannique en lui transmettant l'acte d'adhésion, qui sera
déposé dans les archives dudit Gouvernement._
_Ce Gouvernement transmettra immédiatement à toutes les autres
Puissances copie certifiée conforme de la notification, ainsi que de
l'acte d'adhésion, en indiquant la date à laquelle il a reçu la
notification. L'adhésion produira effet soixante jours après cette
date._
_La situation des Puissances adhérentes sera, en tout ce qui concerne
cette Déclaration, assimilée à la situation des Puissances Signataires._
La Déclaration de Paris contenait déjà une invitation adressée aux
Puissances non représentées, à l'effet d'adhérer à la Déclaration.
L'invitation officielle, au lieu d'être faite individuellement par
chacune des Puissances représentées à la Conférence, sera plus aisément
faite par la Grande-Bretagne agissant au nom de toutes.
Les formes de l'adhésion sont très simples. L'assimilation des
Puissances adhérentes aux Puissances Signataires entraîne naturellement
pour les premières l'observation de l'article 65; on ne peut adhérer à
une partie de la Déclaration, mais seulement à l'ensemble.
Article 71.
_La présente Déclaration, qui portera la date du 26 février 1909, pourra
être signée à Londres, jusqu'au 30 juin 1909, par les Plénipotentiaires
des Puissances représentées à la Conférence Navale._
Comme à La Haye, on a tenu compte des convenances de certaines
Puissances dont les Représentants peuvent ne pas être en situation de
signer dès à présent la Déclaration et qui cependant veulent être
considérées comme des Puissances Signataires, non comme des Puissances
adhérentes.
Il va sans dire que les _Plénipotentiaires des Puissances_ dont il est
parlé à l'article 71 ne sont pas nécessairement ceux qui avaient été
délégués comme tels à la Conférence Navale.
_En foi de quoi, les Plénipotentiaires ont revêtu la présente
Déclaration de leurs signatures et y ont apposé leurs cachets._
_Fait à Londres, le vingt-six février mil neuf cent neuf, en un seul
exemplaire, qui restera déposé dans les archives du Gouvernement
Britannique et dont des copies, certifiées conformes, seront remises par
la voie diplomatique aux Puissances représentées à la Conférence
Navale._
APPENDIX VIII
ADDITIONAL PROTOCOL TO THE CONVENTION CONCERNING THE
ESTABLISHMENT OF AN INTERNATIONAL PRIZE COURT
_Signed at the Hague, September 19, 1910_
Article premier.
Les puissances signataires de la convention de La Haye du 18 octobre
1907, relative à l'établissement d'une Cour Internationale des prises ou
y adhérant, pour lesquelles des difficultés d'ordre constitutionnel
s'opposent à l'acceptation, sous sa forme actuelle, de ladite
convention, ont la faculté de déclarer, dans l'acte de ratification ou
d'adhésion, que, dans les affaires de prises rentrant dans la compétence
de leurs tribunaux nationaux, le recours devant la Cour Internationale
des prises ne pourra être exercé contre elles que sous la forme d'une
action en indemnité du préjudice causé par la capture.
Article 2.
Dans le cas de recours exercé devant la Cour Internationale des prises
sous la forme d'une action en indemnité, l'article 8 de la convention
est sans application; la Cour n'a pas à prononcer la validité ou la
nullité de la capture, non plus qu'à infirmer ou confirmer la décision
des tribunaux nationaux.
Article 3.
Les conditions auxquelles est subordonné par la convention l'exercice du
recours devant la Cour Internationale des prises sont applicables à
l'exercice de l'action en indemnité.
Article 4.
Sous réserve des dispositions ci-après, les règles de procédure établies
par la convention pour le recours devant la Cour Internationale des
prises seront observées pour l'action en indemnité.
Article 5.
Par dérogation à l'article 28, § 1, de la convention, l'instance en
indemnité ne peut être introduite devant la Cour Internationale des
prises qu'au moyen d'une déclaration écrite, adressée au Bureau
International de la Cour permanente d'arbitrage. Le Bureau peut être
saisi même par télégramme.
Article 6.
Par dérogation à l'article 29 de la convention, le Bureau International
notifie directement et par télégramme, s'il est possible, au
Gouvernement du belligérant capteur la déclaration d'instance dont il
est saisi. Le Gouvernement du belligérant capteur, sans examiner si les
délais prescrits ont été observés, fait, dans les sept jours de la
réception de la notification, transmettre au Bureau International le
dossier de l'affaire en y joignant, le cas échéant, une copie certifiée
conforme de la décision rendue par le tribunal national.
Article 7.
Par dérogation à l'article 45, § 2, de la convention, la Cour, après le
prononcé et la notification de son arrêt aux parties en cause, fait
parvenir directement au Gouvernement du belligérant capteur le dossier
de l'affaire qui lui a été soumise, en y joignant l'expédition des
diverses décisions intervenues ainsi que la copie des procès-verbaux de
l'instruction.
Article 8.
Le présent protocole additionnel sera considéré comme faisant partie
intégrante de la convention et sera ratifié en même temps que celle-ci.
Si la déclaration prévue à l'article 1 ci-dessus est faite dans l'acte
de ratification, une copie certifiée conforme en sera insérée dans le
procès-verbal de dépôt des ratifications visé à l'article 52, § 3, de la
convention.
Article 9.
L'adhésion à la convention est subordonnée à l'adhésion au présent
protocole additionnel.
En foi de quoi les Plénipotentiaires ont signé le présent protocole
additionnel.
Fait à La Haye le 19 septembre 1910, en un seul exemplaire qui sera
déposé dans les archives du Gouvernement des Pays-Bas et dont des
copies, certifiées conformes, seront remises, par la voie diplomatique,
aux Puissances désignées dans l'article 15 de la convention relative à
l'établissement d'une Cour Internationale des prises du 18 octobre 1907
et dans son Annexe.
APPENDIX IX
FOREIGN ENLISTMENT ACT, 1870
33 & 34 VICT., CHAPTER 90
An Act to regulate the conduct of Her Majesty's Subjects
during the existence of hostilities between foreign states
with which Her Majesty is at peace.
[9 August 1870.]
Whereas it is expedient to make provision for the regulation of the
conduct of Her Majesty's subjects during the existence of hostilities
between foreign states with which Her Majesty is at peace:
Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the same, as
follows:
_Preliminary._
[Sidenote: Short Title of Act.]
1. This Act may be cited for all purposes as "The Foreign Enlistment
Act, 1870."
[Sidenote: Application of Act.]
2. This Act shall extend to all the dominions of Her Majesty, including
the adjacent territorial waters.
[Sidenote: Commencement of Act.]
3. This Act shall come into operation in the United Kingdom immediately
on the passing thereof, and shall be proclaimed in every British
possession by the governor thereof as soon as may be after he receives
notice of this Act, and shall come into operation in that British
possession on the day of such proclamation, and the time at which this
Act comes into operation in any place is, as respects such place, in
this Act referred to as the commencement of this Act.
_Illegal Enlistment._
[Sidenote: Penalty on enlistment in service of foreign state.]
4. If any person, without the license of Her Majesty, being a British
subject, within or without Her Majesty's dominions, accepts or agrees to
accept any commission or engagement in the military or naval service of
any foreign state at war with any foreign state at peace with Her
Majesty, and in this Act referred to as a friendly state, or whether a
British subject or not within Her Majesty's dominions, induces any other
person to accept or agree to accept any commission or engagement in the
military or naval service of any such foreign state as aforesaid,--
He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punishments
at the discretion of the court before which the offender is
convicted; and imprisonment, if awarded, may be either with or
without hard labour.
[Sidenote: Penalty on leaving Her Majesty's Dominions with intent to
serve a Foreign State.]
5. If any person, without the license of Her Majesty, being a British
subject, quits or goes on board any ship with a view of quitting Her
Majesty's dominions, with intent to accept any commission or engagement
in the military or naval service of any foreign state at war with a
friendly state, or, whether a British subject or not, within Her
Majesty's dominions, induces any other person to quit or to go on board
any ship with a view of quitting Her Majesty's dominions with the like
intent,--
He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such
punishments, at the discretion of the court before which the
offender is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
[Sidenote: Penalty on embarking Persons under False Representations as
to Service.]
6. If any person induces any other person to quit Her Majesty's
dominions or to embark on any ship within Her Majesty's dominions under
a misrepresentation or false representation of the service in which such
person is to be engaged, with the intent or in order that such person
may accept or agree to accept any commission or engagement in the
military or naval service of any foreign state at war with a friendly
state,--
He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment or either of such punishments,
at the discretion of the court before which the offender is
convicted; and imprisonment, if awarded, may be either with or
without hard labour.
[Sidenote: Penalty on taking illegally enlisted Persons on board Ship.]
7. If the master or owner of any ship, without the license of Her
Majesty, knowingly either takes on board, or engages to take on board,
or has on board such ship within Her Majesty's dominions any of the
following persons, in this Act referred to as illegally enlisted
persons; that is to say,--
(1) Any person who, being a British subject within or without the
dominions of Her Majesty, has, without the license of Her Majesty,
accepted or agreed to accept any commission or engagement in the
military or naval service of any foreign state at war with any
friendly state:
(2) Any person, being a British subject, who, without the license
of Her Majesty, is about to quit Her Majesty's dominions with the
intent to accept any commission or engagement in the military or
naval service of any foreign state at war with a friendly state:
(3) Any person who has been induced to embark under a
misrepresentation or false representation of the service in which
such person is to be engaged, with the intent or in order that
such person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign state
at war with a friendly state:
Such master or owner shall be guilty of an offence against this Act, and
the following consequences shall ensue; that is to say,--
(1) The offender shall be punishable by fine and imprisonment, or
either of such punishments, at the discretion of the court before
which the offender is convicted; and imprisonment, if awarded, may
be either with or without hard labour: and
(2) Such ship shall be detained until the trial and conviction or
acquittal of the master or owner, and until all penalties
inflicted on the master or owner have been paid, or the master or
owner has given security for the payment of such penalties to the
satisfaction of two justices of the peace, or other magistrate or
magistrates having the authority of two justices of the peace: and
(3) All illegally enlisted persons shall immediately on the
discovery of the offence be taken on shore, and shall not be
allowed to return to the ship.
_Illegal Shipbuilding and Illegal Expeditions._
[Sidenote: Penalty on illegal Shipbuilding and illegal Expeditions.]
8. If any person within Her Majesty's dominions, without the license of
Her Majesty, does any of the following acts; that is to say,--
(1) Builds or agrees to build, or causes to be built any ship with
intent or knowledge, or having reasonable cause to believe that
the same shall or will be employed in the military or naval
service of any foreign state at war with any friendly state: or
(2) Issues or delivers any commission for any ship with intent or
knowledge, or having reasonable cause to believe that the same
shall or will be employed in the military or naval service of any
foreign state at war with any friendly state: or
(3) Equips any ship with intent or knowledge, or having reasonable
cause to believe that the same shall or will be employed in the
military or naval service of any foreign state at war with any
friendly state: or
(4) Despatches, or causes or allows to be despatched, any ship
with intent or knowledge, or having reasonable cause to believe
that the same shall or will be employed in the military or naval
service of any foreign state at war with any friendly state:
Such person shall be deemed to have committed an offence against this
Act, and the following consequences shall ensue:
(1) The offender shall be punishable by fine and imprisonment or
either of such punishments, at the discretion of the court before
which the offender is convicted; and imprisonment, if awarded, may
be either with or without hard labour.
(2) The ship in respect of which any such offence is committed,
and her equipment, shall be forfeited to Her Majesty.
Provided that a person building, causing to be built, or equipping a
ship in any of the cases aforesaid, in pursuance of a contract made
before the commencement of such war as aforesaid, shall not be liable to
any of the penalties imposed by this section in respect of such building
or equipping if he satisfies the conditions following; (that is to say,)
(1) If forthwith upon a proclamation of neutrality being issued by
Her Majesty he gives notice to the Secretary of State that he is
so building, causing to be built, or equipping such ship, and
furnishes such particulars of the contract and of any matters
relating to, or done, or to be done under the contract as may be
required by the Secretary of State:
(2) If he gives such security, and takes and permits to be taken
such other measures, if any, as the Secretary of State may
prescribe for ensuring that such ship shall not be despatched,
delivered, or removed without the license of Her Majesty until the
termination of such war as aforesaid.
[Sidenote: Presumption as to Evidence in case of Illegal Ship.]
9. Where any ship is built by order of or on behalf of any foreign state
when at war with a friendly state, or is delivered to or to the order of
such foreign state, or any person who to the knowledge of the person
building is an agent of such foreign state, or is paid for by such
foreign state or such agent, and is employed in the military or naval
service of such foreign state, such ship shall, until the contrary is
proved, be deemed to have been built with a view to being so employed,
and the burden shall lie on the builder of such ship of proving that he
did not know that the ship was intended to be so employed in the
military or naval service of such foreign state.
[Sidenote: Penalty on aiding the Warlike Equipment of Foreign ships.]
10. If any person within the dominions of Her Majesty, and without the
license of Her Majesty,--
By adding to the number of guns, or by changing those on board for other
guns, or by the addition of any equipment for war, increases or
augments, or procures to be increased or augmented, or is knowingly
concerned in increasing or augmenting the warlike force of any ship
which at the time of her being within the dominions of Her Majesty was a
ship in the military or naval service of any foreign state at war with
any friendly state,--
Such person shall be guilty of an offence against this Act, and
shall be punishable by fine and imprisonment, or either of such
punishments, at the discretion of the court before which the
offender is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
[Sidenote: Penalty on fitting out Naval or Military Expeditions without
License.]
11. If any person within the limits of Her Majesty's dominions, and
without the license of Her Majesty,--
Prepares or fits out any naval or military expedition to proceed against
the dominions of any friendly state, the following consequences shall
ensue:
(1) Every person engaged in such preparation or fitting out, or
assisting therein, or employed in any capacity in such expedition,
shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such
punishments, at the discretion of the court before which the
offender is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
(2) All ships, and their equipments, and all arms and munitions of
war, used in or forming part of such expedition, shall be
forfeited to Her Majesty.
[Sidenote: Punishment of Accessories.]
12. Any person who aids, abets, counsels, or procures the commission of
any offence against this Act shall be liable to be tried and punished as
a principal offender.
[Sidenote: Limitation of Term of Imprisonment.]
13. The term of imprisonment to be awarded in respect of any offence
against this Act shall not exceed two years.
_Illegal Prize._
[Sidenote: Illegal Prize brought into British Ports restored.]
14. If during the continuance of any war in which Her Majesty may be
neutral, any ship, goods, or merchandize captured as prize of war within
the territorial jurisdiction of Her Majesty, in violation of the
neutrality of this realm, or captured by any ship which may have been
built, equipped, commissioned, or despatched, or the force of which may
have been augmented, contrary to the provisions of this Act are brought
within the limits of Her Majesty's dominions by the captor, or any agent
of the captor, or by any person having come into possession thereof with
the knowledge that the same was prize of war so captured as aforesaid,
it shall be lawful for the original owner of such prize, or his agent,
or for any person authorised in that behalf by the Government of the
foreign state to which such owner belongs, to make application to the
Court of Admiralty for seizure and detention of such prize, and the
court shall, on due proof of the facts, order such prize to be restored.
Every such order shall be executed and carried into effect in the same
manner, and subject to the same right of appeal as in the case of any
order made in the exercise of the ordinary jurisdiction of such court;
and in the meantime and until a final order has been made on such
application the court shall have power to make all such provisional and
other orders as to the care or custody of such captured ship, goods, or
merchandize, and (if the same be of perishable nature, or incurring risk
of deterioration) for the sale thereof, and with respect to the deposit
or investment of the proceeds of any such sale, as may be made by such
court in the exercise of its ordinary jurisdiction.
_General Provision._
[Sidenote: License by Her Majesty, how granted.]
15. For the purpose of this Act, a license by Her Majesty shall be under
the sign manual of Her Majesty, or be signified by Order in Council or
by proclamation of Her Majesty.
_Legal Procedure._
[Sidenote: Jurisdiction in respect of Offences by Persons against Act.]
16. Any offence against this Act shall, for all purposes of and
incidental to the trial and punishment of any person guilty of any such
offence, be deemed to have been committed either in the place in which
the offence was wholly or partly committed, or in any place within Her
Majesty's dominions in which the person who committed such offence may
be.
[Sidenote: Venue in respect of Offences by Persons. 24 & 25 Vict. c.
97.]
17. Any offence against this Act may be described in any indictment or
other document relating to such offence, in cases where the mode of
trial requires such a description, as having been committed at the place
where it was wholly or partly committed, or it may be averred generally
to have been committed within Her Majesty's dominions, and the venue or
local description in the margin may be that of the county, city, or
place in which the trial is held.
[Sidenote: Power to remove Offenders for Trial.]
18. The following authorities, that is to say, in the United Kingdom any
judge of a superior court, in any other place within the jurisdiction of
any British court of justice, such court, or, if there are more courts
than one, the court having the highest criminal jurisdiction in that
place, may, by warrant or instrument in the nature of a warrant in this
section included in the term "warrant," direct that any offender charged
with an offence against this Act shall be removed to some other place in
Her Majesty's dominions for trial in cases where it appears to the
authority granting the warrant that the removal of such offender would
be conducive to the interests of justice, and any prisoner so removed
shall be triable at the place to which he is removed, in the same manner
as if his offence had been committed at such place.
Any warrant for the purposes of this section may be addressed to the
master of any ship or to any other person or persons, and the person or
persons to whom such warrant is addressed shall have power to convey the
prisoner therein named to any place or places named in such warrant, and
to deliver him, when arrived at such place or places, into the custody
of any authority designated by such warrant.
Every prisoner shall, during the time of his removal under any such
warrant as aforesaid, be deemed to be in the legal custody of the person
or persons empowered to remove him.
[Sidenote: Jurisdiction in respect of Forfeiture of Ships for Offences
against Act.]
19. All proceedings for the condemnation and forfeiture of a ship, or
ship and equipment, or arms and munitions of war, in pursuance of this
Act shall require the sanction of the Secretary of State or such chief
executive authority as is in this Act mentioned, and shall be had in the
Court of Admiralty, and not in any other court; and the Court of
Admiralty shall, in addition to any power given to the court by this
Act, have in respect of any ship or other matter brought before it in
pursuance of this Act all powers which it has in the case of a ship or
matter brought before it in the exercise of its ordinary jurisdiction.
[Sidenote: Regulations as to Proceedings against the Offender and the
Ship.]
20. Where any offence against this Act has been committed by any person
by reason whereof a ship, or ship and equipment, or arms and munitions
of war, has or have become liable to forfeiture, proceedings may be
instituted contemporaneously or not, as may be thought fit, against the
offender in any court having jurisdiction of the offence, and against
the ship, or ship and equipment, or arms and munitions of war, for the
forfeiture in the Court of Admiralty; but it shall not be necessary to
take proceedings against the offender because proceedings are instituted
for the forfeiture, or to take proceedings for the forfeiture because
proceedings are taken against the offender.
[Sidenote: Officer authorised to seize offending Ships.]
21. The following officers, that is to say,--
(1) Any officer of customs in the United Kingdom, subject
nevertheless to any special or general instructions from the
Commissioners of Customs or any officer of the Board of Trade,
subject nevertheless to any special or general instructions from
the Board of Trade;
(2) Any officer of customs or public officer in any British
possession, subject nevertheless to any special or general
instructions from the governor of such possession;
(3) Any commissioned officer on full pay in the military service
of the Crown, subject nevertheless to any special or general
instructions from his commanding officer;
(4) Any commissioned officer on full pay in the naval service of
the Crown, subject nevertheless to any special or general
instructions from the Admiralty or his superior officer, may seize
or detain any ship liable to be seized or detained in pursuance of
this Act, and such officers are in this Act referred to as the
"local authority"; but nothing in this Act contained shall
derogate from the power of the Court of Admiralty to direct any
ship to be seized or detained by any officer by whom such court
may have power under its ordinary jurisdiction to direct a ship to
be seized or detained.
[Sidenote: Powers of Officers authorised to seize Ships.]
22. Any officer authorised to seize or detain any ship in respect of any
offence against this Act may, for the purpose of enforcing such seizure
or detention, call to his aid any constable or officers of police, or
any officers of Her Majesty's army or navy or marines, or any excise
officer or officers of customs, or any harbour-master or dock-master, or
any officers having authority by law to make seizures of ships, and may
put on board any ship so seized or detained any one or more of such
officers to take charge of the same, and to enforce the provisions of
this Act, and any officer seizing or detaining any ship under this Act
may use force, if necessary, for the purpose of enforcing seizure or
detention, and if any person is killed or maimed by reason of his
resisting such officer in the execution of his duties, or any person
acting under his orders, such officer so seizing or detaining the ship,
or other person, shall be freely and fully indemnified as well against
the Queen's Majesty, Her heirs and successors, as against all persons so
killed, maimed, or hurt.
[Sidenote: Special Power of Secretary of State or Chief Executive
Authority to detain Ship.]
23. If the Secretary of State or the chief executive authority is
satisfied that there is a reasonable and probable cause for believing
that a ship within Her Majesty's dominions has been or is being built,
commissioned, or equipped contrary to this Act, and is about to be taken
beyond the limits of such dominions, or that a ship is about to be
despatched contrary to this Act, such Secretary of State or chief
executive authority shall have power to issue a warrant stating that
there is reasonable and probable cause for believing as aforesaid, and
upon such warrant the local authority shall have power to seize and
search such ship, and to detain the same until it has been either
condemned or released by process of law, or in manner herein-after
mentioned.
The owner of the ship so detained, or his agent, may apply to the Court
of Admiralty for its release, and the court shall as soon as possible
put the matter of such seizure and detention in course of trial between
the applicant and the Crown.
If the applicant establish to the satisfaction of the court that the
ship was not and is not being built, commissioned, or equipped or
intended to be despatched contrary to this Act, the ship shall be
released and restored.
If the applicant fail to establish to the satisfaction of the court that
the ship was not and is not being built, commissioned, or equipped, or
intended to be despatched contrary to this Act, then the ship shall be
detained till released by order of the Secretary of State or chief
executive authority.
The court may in cases where no proceedings are pending for its
condemnation release any ship detained under this section on the owner
giving security to the satisfaction of the court that the ship shall not
be employed contrary to this Act, notwithstanding that the applicant may
have failed to establish to the satisfaction of the court that the ship
was not and is not being built, commissioned, or intended to be
despatched contrary to this Act. The Secretary of State or the chief
executive authority may likewise release any ship detained under this
section on the owner giving security to the satisfaction of such
Secretary of State or chief executive authority that the ship shall not
be employed contrary to this Act, or may release the ship without such
security if the Secretary of State or chief executive authority think
fit so to release the same.
If the court be of opinion that there was not reasonable and probable
cause for the detention, and if no such cause appear in the course of
the proceedings, the court shall have power to declare that the owner is
to be indemnified by the payment of costs and damages in respect of the
detention, the amount thereof to be assessed by the court, and any
amount so assessed shall be payable by the Commissioners of the Treasury
out of any moneys legally applicable for that purpose. The Court of
Admiralty shall also have power to make a like order for the indemnity
of the owner, on the application of such owner to the court, in a
summary way, in cases where the ship is released by the order of the
Secretary of State or the chief executive authority, before any
application is made by the owner or his agent to the court for such
release.
Nothing in this section contained shall affect any proceedings
instituted or to be instituted for the condemnation of any ship detained
under this section where such ship is liable to forfeiture subject to
this provision, that if such ship is restored in pursuance of this
section all proceedings for such condemnation shall be stayed; and where
the court declares that the owner is to be indemnified by the payment of
costs and damages for the detainer, all costs, charges, and expenses
incurred by such owner in or about any proceedings for the condemnation
of such ship shall be added to the costs and damages payable to him in
respect of the detention of the ship.
Nothing in this section contained shall apply to any foreign
non-commissioned ship despatched from any part of Her Majesty's
dominions after having come within them under stress of weather or in
the course of a peaceful voyage, and upon which ship no fitting out or
equipping of a warlike character has taken place in this country.
[Sidenote: Special Power of Local Authority to detain Ship.]
24. Where it is represented to any local authority, as defined by this
Act, and such local authority believes the representation, that there is
a reasonable and probable cause for believing that a ship within Her
Majesty's dominions has been or is being built, commissioned, or
equipped contrary to this Act, and is about to be taken beyond the
limits of such dominions, or that a ship is about to be despatched
contrary to this Act, it shall be the duty of such local authority to
detain such ship, and forthwith to communicate the fact of such
detention to the Secretary of State or chief executive authority.
Upon the receipt of such communication the Secretary of State or chief
executive authority may order the ship to be released if he thinks there
is no cause for detaining her, but if satisfied that there is reasonable
and probable cause for believing that such ship was built, commissioned,
or equipped or intended to be despatched in contravention of this Act,
he shall issue his warrant stating that there is reasonable and probable
cause for believing as aforesaid, and upon such warrant being issued
further proceedings shall be had as in cases where the seizure or
detention has taken place on a warrant issued by the Secretary of State
without any communication from the local authority.
Where the Secretary of State or chief executive authority orders the
ship to be released on the receipt of a communication from the local
authority without issuing his warrant, the owner of the ship shall be
indemnified by the payment of costs and damages in respect of the
detention upon application to the Court of Admiralty in a summary way in
like manner as he is entitled to be indemnified where the Secretary of
State having issued his warrant under this Act releases the ship before
any application is made by the owner or his agent to the court for such
release.
[Sidenote: Power of Secretary of State or Executive Authority to grant
Search Warrant.]
25. The Secretary of State or the chief executive authority may, by
warrant, empower any person to enter any dockyard or other place within
Her Majesty's dominions and inquire as to the destination of any ship
which may appear to him to be intended to be employed in the naval or
military service of any foreign state at war with a friendly state, and
to search such ship.
[Sidenote: Exercise of Powers of Secretary of State or Chief Executive
Authority.]
26. Any powers or jurisdiction by this Act given to the Secretary of
State may be exercised by him throughout the dominions of Her Majesty,
and such powers and jurisdiction may also be exercised by any of the
following officers, in this Act referred to as the chief executive
authority, within their respective jurisdictions; that is to say,
(1) In Ireland by the Lord Lieutenant or other the chief governor
or governors of Ireland for the time being, or the chief
secretary to the Lord Lieutenant:
(2) In Jersey by the Lieutenant Governor:
(3) In Guernsey, Alderney, and Sark, and the dependent islands by
the Lieutenant Governor:
(4) In the Isle of Man by the Lieutenant Governor:
(5) In any British possession by the Governor:
A copy of any warrant issued by a Secretary of State or by any officer
authorised in pursuance of this Act to issue such warrant in Ireland,
the Channel Islands, or the Isle of Man shall be laid before Parliament.
[Sidenote: Appeal from Court of Admiralty.]
27. An appeal may be had from any decision of a Court of Admiralty under
this Act to the same tribunal and in the same manner to and in which an
appeal may be had in cases within the ordinary jurisdiction of the court
as a Court of Admiralty.
[Sidenote: Indemnity to Officers.]
28. Subject to the provisions of this Act providing for the award of
damages in certain cases in respect of the seizure or detention of a
ship by the Court of Admiralty no damages shall be payable, and no
officer or local authority shall be responsible, either civilly or
criminally, in respect of the seizure or detention of any ship in
pursuance of this Act.
[Sidenote: Indemnity to Secretary of State or Chief Executive
Authority.]
29. The Secretary of State shall not, nor shall the chief executive
authority, be responsible in any action or other legal proceedings
whatsoever for any warrant issued by him in pursuance of this Act, or be
examinable as a witness, except at his own request, in any court of
justice in respect of the circumstances which led to the issue of the
warrant.
_Interpretation Clause._
[Sidenote: Interpretation of Terms.]
30. In this Act, if not inconsistent with the context, the following
terms have the meanings herein-after respectively assigned to them; that
is to say,
[Sidenote: "Foreign State:"]
"Foreign state" includes any foreign prince, colony, province, or
part of any province or people, or any person or persons
exercising or assuming to exercise the powers of government in or
over any foreign country, colony, province, or part of any
province or people:
[Sidenote: "Military Service:"]
"Military service" shall include military telegraphy and any other
employment whatever, in or in connection with any military
operation:
[Sidenote: "Naval Service:"]
"Naval service" shall, as respects a person, include service as a
marine, employment as a pilot in piloting or directing the course
of a ship of war or other ship when such ship of war or other ship
is being used in any military or naval operation, and any
employment whatever on board a ship of war, transport, store ship,
privateer or ship under letters of marque; and as respects a ship,
include any user of a ship as a transport, store ship, privateer
or ship under letters of marque:
[Sidenote: "United Kingdom:"]
"United Kingdom" includes the Isle of Man, the Channel Islands,
and other adjacent islands:
[Sidenote: "British Possessions:"]
"British possession" means any territory, colony, or place being
part of Her Majesty's dominions, and not part of the United
Kingdom, as defined by this Act:
[Sidenote: "The Secretary of State:"]
"The Secretary of State" shall mean any one of Her Majesty's
Principal Secretaries of State:
[Sidenote: "Governor:"]
"The Governor" shall as respects India mean the Governor General
or the Governor of any presidency, and where a British possession
consists of several constituent colonies, mean the Governor
General of the whole possession or the Governor of any of the
constituent colonies, and as respects any other British possession
it shall mean the officer for the time being administering the
government of such possession; also any person acting for or in
the capacity of a governor shall be included under the term
"Governor":
[Sidenote: "Court of Admiralty:"]
"Court of Admiralty" shall mean the High Court of Admiralty of
England or Ireland, the Court of Session of Scotland, or any
Vice-Admiralty Court within Her Majesty's dominions:
[Sidenote: "Ship:"]
"Ship" shall include any description of boat, vessel, floating
battery, or floating craft; also any description of boat, vessel,
or other craft or battery, made to move either on the surface of
or under water, or sometimes on the surface of and sometimes under
water:
[Sidenote: "Building:"]
"Building" in relation to a ship shall include the doing any act
towards or incidental to the construction of a ship, and all words
having relation to building shall be construed accordingly:
[Sidenote: "Equipping:"]
"Equipping" in relation to a ship shall include the furnishing a
ship with any tackle, apparel, furniture, provisions, arms,
munitions, or stores, or any other thing which is used in or about
a ship for the purpose of fitting or adapting her for the sea or
for naval service, and all words relating to equipping shall be
construed accordingly:
[Sidenote: "Ship and Equipment:"]
"Ship and equipment" shall include a ship and everything in or
belonging to a ship:
[Sidenote: "Master:"]
"Master" shall include any person having the charge or command of
a ship.
_Repeal of Acts, and Saving Clauses._
[Sidenote: Repeal of Foreign Enlistment Act. 59 G. 3, c. 69.]
31. From and after the commencement of this Act, an Act passed in the
fifty-ninth year of the reign of His late Majesty King George the Third,
chapter sixty-nine, intituled "An Act to prevent the enlisting or
engagement of His Majesty's subjects to serve in foreign service, and
the fitting out or equipping, in His Majesty's dominions, vessels for
warlike purposes, without His Majesty's license," shall be repealed:
Provided that such repeal shall not affect any penalty, forfeiture, or
other punishment incurred or to be incurred in respect of any offence
committed before this Act comes into operation, nor the institution of
any investigation or legal proceeding, or any other remedy for enforcing
any such penalty, forfeiture, or punishment as aforesaid.
[Sidenote: Saving as to Commissioned Foreign Ships.]
32. Nothing in this Act contained shall subject to forfeiture any
commissioned ship of any foreign state, or give to any British court
over or in respect of any ship entitled to recognition as a commissioned
ship of any foreign state any jurisdiction which it would not have had
if this Act had not passed.
[Sidenote: Penalties not to extend to Persons entering into Military
Service in Asia. 59 G. 3, c. 69, s. 12.]
33. Nothing in this Act contained shall extend or be construed to extend
to subject to any penalty any person who enters into the military
service of any prince, state, or potentate in Asia, with such leave or
license as is for the time being required by law in the case of subjects
of Her Majesty entering into the military services of princes, states,
or potentates of Asia.
APPENDIX X
THE NAVAL PRIZE ACT, 1864
27 & 28 VICT., CHAPTER 25
An Act for regulating Naval Prize of War.
[_23rd June 1864._]
Whereas it is expedient to enact permanently, with Amendments, such
Provisions concerning Naval Prize, and Matters connected therewith, as
have heretofore been usually passed at the Beginning of a War:
Be it therefore enacted by the Queen's most Excellent Majesty, by and
with the Advice and Consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows:
_Preliminary._
[Sidenote: Short Title.]
1. This Act may be cited as the Naval Prize Act, 1864.
2. In this Act--
[Sidenote: Interpretation of Terms.]
The Term "the Lords of the Admiralty" means the Lord High Admiral
of the United Kingdom, or the Commissioners for executing the
Office of Lord High Admiral:
The Term "the High Court of Admiralty" means the High Court of
Admiralty of _England_:
The Term "any of Her Majesty's Ships of War" includes any of Her
Majesty's Vessels of War, and any hired armed Ship or Vessel in
Her Majesty's Service:
The Term "Officers and Crew" includes Flag Officers, Commanders,
and other Officers, Engineers, Seamen, Marines, Soldiers, and
others on board any of Her Majesty's Ships of War:
The Term "Ship" includes Vessel and Boat, with the Tackle,
Furniture, and Apparel of the Ship, Vessel, or Boat:
The Term "Ship Papers" includes all Books, Passes, Sea Briefs,
Charter Parties, Bills of Lading, Cockets, Letters, and other
Documents and Writings delivered up or found on board a captured
Ship:
The Term "Goods" includes all such Things as are by the Course of
Admiralty and Law of Nations the Subject of Adjudication as Prize
(other than Ships).
I.--Prize Courts.
[Sidenote: High Court of Admiralty and other Courts to be Prize Courts
for Purposes of Act.]
3. The High Court of Admiralty, and every Court of Admiralty or of
Vice-Admiralty, or other Court exercising Admiralty Jurisdiction in Her
Majesty's Dominions, for the Time being authorised to take cognizance of
and judicially proceed in Matters of Prize, shall be a Prize Court
within the Meaning of this Act.
Every such Court, other than the High Court of Admiralty, is comprised
in the Term "Vice-Admiralty Prize Court," when hereafter used in this
Act.
_High Court of Admiralty._
[Sidenote: Jurisdiction of High Court of Admiralty.]
4. The High Court of Admiralty shall have Jurisdiction throughout Her
Majesty's Dominions as a Prize Court.
The High Court of Admiralty as a Prize Court shall have Power to enforce
any Order or Decree of a Vice-Admiralty Prize Court, and any Order or
Decree of the Judicial Committee of the Privy Council in a Prize Appeal.
_Appeal; Judicial Committee._
[Sidenote: Appeal to Queen in Council, in what Cases.]
5. An Appeal shall lie to Her Majesty in Council from any Order or
Decree of a Prize Court, as of Right in case of a Final Decree, and in
other Cases with the Leave of the Court making the Order or Decree.
Every Appeal shall be made in such Manner and Form and subject to such
Regulations (including Regulations as to Fees, Costs, Charges, and
Expenses) as may for the Time being be directed by Order in Council, and
in the Absence of any such Order, or so far as any such Order does not
extend, then in such Manner and Form and subject to such Regulations as
are for the Time being prescribed or in force respecting Maritime Causes
of Appeal.
[Sidenote: Jurisdiction of Judicial Committee in Prize Appeals.]
6. The Judicial Committee of the Privy Council shall have Jurisdiction
to hear and report on any such Appeal, and may therein exercise all such
Powers as for the Time being appertain to them in respect of Appeals
from any Court of Admiralty Jurisdiction, and all such Powers as are
under this Act vested in the High Court of Admiralty, and all such
Powers as were wont to be exercised by the Commissioners of Appeal in
Prize Causes.
[Sidenote: Custody of Processes, Papers, &c.]
7. All Processes and Documents required for the Purposes of any such
Appeal shall be transmitted to and shall remain in the Custody of the
Registrar of Her Majesty in Prize Appeals.
[Sidenote: Limit of Time for Appeal.]
8. In every such Appeal the usual Inhibition shall be extracted from the
Registry of Her Majesty in Prize Appeals within Three Months after the
Date of the Order or Decree appealed from if the Appeal be from the High
Court of Admiralty, and within Six Months after that Date if it be from
a Vice-Admiralty Prize Court.
The Judicial Committee may, nevertheless, on sufficient Cause shown,
allow the Inhibition to be extracted and the Appeal to be prosecuted
after the Expiration of the respective Periods aforesaid.
_Vice-Admiralty Prize Courts._
[Sidenote: Enforcement of Orders of High Court, &c.]
9. Every Vice-Admiralty Prize Court shall enforce within its
Jurisdiction all Orders and Decrees of the Judicial Committee in Prize
Appeals and of the High Court of Admiralty in Prize Causes.
[Sidenote: Salaries of Judges of Vice-Admiralty Prize Courts.]
10. Her Majesty in Council may grant to the Judge of any Vice-Admiralty
Prize Court a Salary not exceeding Five Hundred Pounds a Year, payable
out of Money provided by Parliament, subject to such Regulations as seem
meet.
A Judge to whom a Salary is so granted shall not be entitled to any
further Emolument, arising from Fees or otherwise, in respect of Prize
Business transacted in his Court.
An Account of all such Fees shall be kept by the Registrar of the Court,
and the Amount thereof shall be carried to and form Part of the
Consolidated Fund of the United Kingdom.
[Sidenote: Retiring Pensions of Judges, as in 22 & 23 Vict. c. 26.]
11. In accordance, as far as Circumstances admit, with the Principles
and Regulations laid down in the Superannuation Act, 1859, Her Majesty
in Council may grant to the Judge of any Vice-Admiralty Prize Court an
annual or other Allowance, to take effect on the Termination of his
Service, and to be payable out of Money provided by Parliament.
[Sidenote: Returns from Vice-Admiralty Prize Courts.]
12. The Registrar of every Vice-Admiralty Prize Court shall, on the
First Day of _January_ and First Day of _July_ in every year, make out a
Return (in such Form as the Lords of the Admiralty from Time to Time
direct) of all cases adjudged in the Court since the last half-yearly
Return, and shall with all convenient Speed send the same to the
Registrar of the High Court of Admiralty, who shall keep the same in the
Registry of that Court, and who shall, as soon as conveniently may be,
send a Copy of the Returns of each Half Year to the Lords of the
Admiralty, who shall lay the same before both Houses of Parliament.
_General._
[Sidenote: General Orders for Prize Courts.]
13. The Judicial Committee of the Privy Council, with the Judge of the
High Court of Admiralty, may from Time to Time frame General Orders for
regulating (subject to the Provisions of this Act) the Procedure and
Practice of Prize Courts, and the Duties and Conduct of the Officers
thereof and of the Practitioners therein, and for regulating the Fees to
be taken by the Officers of the Courts, and the Costs, Charges, and
Expenses to be allowed to the Practitioners therein.
Any such General Orders shall have full Effect, if and when approved by
Her Majesty in Council, but not sooner or otherwise.
Every Order in Council made under this Section shall be laid before both
Houses of Parliament.
Every such Order in Council shall be kept exhibited in a conspicuous
Place in each Court to which it relates.
[Sidenote: Prohibition of Officer of Prize Court acting as Proctor, &c.]
14. It shall not be lawful for any Registrar, Marshal, or other Officer
of any Prize Court, or for the Registrar of Her Majesty in Prize
Appeals, directly or indirectly to act or be in any manner concerned as
Advocate, Proctor, Solicitor, or Agent, or otherwise, in any Prize Cause
or Appeal, on pain of Dismissal or Suspension from Office, by Order of
the Court or of the Judicial Committee (as the Case may require).
[Sidenote: Prohibition of Proctors being concerned for adverse Parties
in a Cause.]
15. It shall not be lawful for any Proctor or Solicitor, or Person
practising as a Proctor or Solicitor, being employed by a Party in a
Prize Cause or Appeal, to be employed or concerned, by himself or his
Partner, or by any other Person, directly or indirectly by or on behalf
of any adverse Party in that Cause or Appeal, on pain of Exclusion or
Suspension from Practice in Prize Matters, by Order of the Court or of
the Judicial Committee (as the Case may require).
II.--PROCEDURE IN PRIZE CAUSES.
_Proceedings by Captors._
[Sidenote: Custody of Prize Ship.]
16. Every Ship taken as Prize, and brought into Port within the
Jurisdiction of a Prize Court, shall forthwith and without Bulk broken,
be delivered up to the Marshal of the Court.
If there is no such Marshal, then the Ship shall be in like Manner
delivered up to the Principal Officer of Customs at the Port.
The Ship shall remain in the Custody of the Marshal, or of such Officer,
subject to the Orders of the Court.
[Sidenote: Bringing in of Ship Papers.]
17. The Captors shall, with all practicable Speed after the Ship is
brought into Port, bring the Ship Papers into the Registry of the Court.
The Officer in Command, or One of the Chief Officers of the Capturing
Ship, or some other Person who was present at the Capture, and saw the
Ship Papers delivered up or found on board, shall make Oath that they
are brought in as they were taken, without Fraud, Addition, Subduction,
or Alteration, or else shall account on Oath to the Satisfaction of the
Court for the Absence or altered Condition of the Ship Papers or any of
them.
Where no Ship Papers are delivered up or found on board the captured
Ship, the Officer in Command, or One of the Chief Officers of the
capturing Ship, or some other Person who was present at the Capture,
shall make Oath to that Effect.
[Sidenote: Issue of Monition.]
18. As soon as the Affidavit as to Ship Papers is filed, a Monition
shall issue, returnable within Twenty Days from the Service thereof,
citing all Persons in general to show Cause why the captured Ship should
not be condemned.
[Sidenote: Examinations on Standing Interrogatories.]
19. The Captors shall, with all practicable Speed after the captured
Ship is brought into Port, bring Three or Four of the Principal Persons
belonging to the captured Ship before the Judge of the Court or some
Person authorised in this behalf, by whom they shall be examined on Oath
on the Standing Interrogatories.
The Preparatory Examinations on the Standing Interrogatories shall, if
possible, be concluded within Five Days from the Commencement thereof.
[Sidenote: Adjudication by Court.]
20. After the Return of the Monition, the Court shall, on Production of
the Preparatory Examinations and Ship Papers, proceed with all
convenient Speed either to condemn or to release the captured Ship.
[Sidenote: Further Proof.]
21. Where, on Production of the Preparatory Examinations and Ship
Papers, it appears to the Court doubtful whether the captured Ship is
good Prize or not, the Court may direct further Proof to be adduced,
either by Affidavit or by Examination of Witnesses, with or without
Pleadings, or by Production of further Documents; and on such further
Proof being adduced the Court shall with all convenient Speed proceed to
Adjudication.
[Sidenote: Custody, &c. of Ships of War.]
22. The foregoing Provisions, as far as they relate to the Custody of
the Ship, and to Examination on the Standing Interrogatories, shall not
apply to Ships of War taken as Prize.
_Claim._
[Sidenote: Entry of Claim; Security for Costs.]
23. At any Time before Final Decree made in the Cause, any Person
claiming an Interest in the Ship may enter in the Registry of the Court
a Claim, verified on Oath.
Within Five Days after entering the Claim, the Claimant shall give
Security for Costs in the Sum of Sixty Pounds; but the Court shall have
Power to enlarge the Time for giving Security, or to direct Security to
be given in a larger Sum, if the Circumstances appear to require it.
_Appraisement._
[Sidenote: Power to Court to direct Appraisement.]
24. The Court may, if it thinks fit, at any Time direct that the
captured Ship be appraised.
Every Appraisement shall be made by competent Persons sworn to make the
same according to the best of their Skill and Knowledge.
_Delivery on Bail._
[Sidenote: Power to Court to direct Delivery to Claimant on Bail.]
25. After Appraisement, the Court may, if it thinks fit, direct that the
captured Ship be delivered up to the Claimant, on his giving Security to
the Satisfaction of the Court to pay to the Captors the appraised Value
thereof in case of Condemnation.
_Sale._
[Sidenote: Power to Court to order Sale.]
26. The Court may at any Time, if it thinks fit, on account of the
Condition of the captured Ship, or on the Application of a Claimant,
order that the captured Ship be appraised as aforesaid (if not already
appraised), and be sold.
[Sidenote: Sale on Condemnation.]
27. On or after Condemnation the Court may, if it thinks fit, order that
the Ship be appraised as aforesaid (if not already appraised), and be
sold.
[Sidenote: How Sales to be made.]
28. Every Sale shall be made by or under the Superintendence of the
Marshal of the Court or of the Officer having the Custody of the
captured Ship.
[Sidenote: Payment of Proceeds to Paymaster General or Official
Accountant.]
29. The Proceeds of any Sale, made either before or after Condemnation,
and after Condemnation the appraised Value of the captured Ship, in case
she has been delivered up to a Claimant on Bail, shall be paid under an
Order of the Court either into the Bank of _England_ to the Credit of
Her Majesty's Paymaster General, or into the Hands of an Official
Accountant (belonging to the Commissariat or some other Department)
appointed for this Purpose by the Commissioners of Her Majesty's
Treasury or by the Lords of the Admiralty, subject in either case to
such Regulations as may from Time to Time be made, by order in Council,
as to the Custody and Disposal of Money so paid.
_Small armed Ships._
[Sidenote: One Adjudication as to several small Ships.]
30. The Captors may include in One Adjudication any Number, not
exceeding Six, of armed Ships not exceeding One hundred Tons each, taken
within Three Months next before Institution of Proceedings.
_Goods._
[Sidenote: Application of foregoing Provisions to Prize Goods.]
31. The foregoing Provisions relating to Ships shall extend and apply,
_mutatis mutandis_, to goods taken as Prize on board Ship; and the Court
may direct such goods to be unladen, inventoried, and warehoused.
_Monition to Captors to proceed._
[Sidenote: Power to Court to call on Captors to proceed to
Adjudication.]
32. If the Captors fail to institute or to prosecute with Effect
Proceedings for Adjudication, a Monition shall, on the Application of a
Claimant, issue against the Captors, returnable within Six Days from the
Service thereof, citing them to appear and proceed to Adjudication; and
on the Return thereof the Court shall either forthwith proceed to
Adjudication or direct further Proof to be adduced as aforesaid and then
proceed to Adjudication.
_Claim on Appeal._
[Sidenote: Person intervening on Appeal to enter Claim.]
33. Where any Person, not an original Party in the Cause, intervenes on
Appeal, he shall enter a Claim, verified on Oath, and shall give
Security for Costs.
III.--SPECIAL CASES OF CAPTURE.
_Land Expeditions._
[Sidenote: Jurisdiction of Prize Court in case of Capture in Land
Expedition.]
34. Where, in an Expedition of any of Her Majesty's Naval or Naval and
Military Forces against a Fortress or Possession on Land, Goods
belonging to the State of the Enemy or to a Public Trading Company of
the Enemy exercising Powers of Government are taken in the Fortress or
Possession, or a Ship is taken in Waters defended by or belonging to the
Fortress or Possession, a Prize Court shall have Jurisdiction as to the
Goods or Ship so taken, and any Goods taken on board the Ship as in case
of Prize.
_Conjunct Capture with Ally._
[Sidenote: Jurisdiction of Prize Court in case of Expedition with Ally.]
35. Where any Ship or Goods is or are taken by any of Her Majesty's
Naval or Naval and Military Forces while acting in conjunction with any
Forces of any of Her Majesty's Allies, a Prize Court shall have
Jurisdiction as to the same as in the case of Prize, and shall have
Power, after Condemnation, to apportion the due share of the Proceeds to
Her Majesty's Ally, the proportionate Amount and the Disposition of
which Share shall be such as may from Time to Time be agreed between Her
Majesty and Her Majesty's Ally.
_Joint Capture._
[Sidenote: Restriction on Petitions by asserted joint Captors.]
36. Before Condemnation, a Petition on behalf of asserted joint Captors
shall not (except by special Leave of the Court) be admitted, unless and
until they give Security to the Satisfaction of the Court to contribute
to the actual Captors a just Proportion of any Costs, Charges, and
Expenses or Damages that may be incurred by or awarded against the
actual Captors on account of the Capture and Detention of the Prize.
After Condemnation, such a Petition shall not (except by special Leave
of the Court) be admitted unless and until the asserted joint Captors
pay to the actual Captors a just Proportion of the Costs, Charges, and
Expenses incurred by the actual Captors in the Case, and give such
Security as aforesaid, and show sufficient Cause to the Court why their
Petition was not presented before Condemnation.
Provided, that nothing in the present Section shall extend to the
asserted Interest of a Flag Officer claiming to share by virtue of his
Flag.
_Offences against Law of Prize._
[Sidenote: In case of Offence by Captors, Prize to be reserved for
Crown.]
37. A Prize Court, on Proof of any Offence against the Law of Nations,
or against this Act, or any Act relating to Naval Discipline, or against
any Order in Council or Royal Proclamation, or of any Breach of Her
Majesty's Instructions relating to Prize, or of any Act of Disobedience
to the Orders of the Lords of the Admiralty, or to the Command of a
Superior Officer, committed by the Captors in relation to any Ship or
Goods taken as Prize, or in relation to any Person on Board any such
Ship, may, on Condemnation, reserve the Prize to Her Majesty's Disposal,
notwithstanding any Grant that may have been made by Her Majesty in
favour of Captors.
_Pre-emption._
[Sidenote: Purchase by Admiralty for Public Service of Stores on board
Foreign Ships.]
38. Where a Ship of a Foreign Nation passing the Seas laden with Naval
or Victualling Stores intended to be carried to a Port of any Enemy of
Her Majesty is taken and brought into a Port of the United Kingdom, and
the Purchase for the Service of Her Majesty of the Stores on board the
Ship appears to the Lords of the Admiralty expedient without the
Condemnation thereof in a Prize Court, in that Case the Lords of the
Admiralty may purchase, on the Account or for the Service of Her
Majesty, all or any of the Stores on board the Ship; and the
Commissioners of Customs may permit the Stores purchased to be entered
and landed within any Port.
_Capture by Ship other than a Ship of War._
[Sidenote: Prizes taken by Ships other than Ships of War to be Droits of
Admiralty.]
39. Any Ship or Goods taken as Prize by any of the Officers and Crew of
a Ship other than a Ship of War of Her Majesty shall, on Condemnation,
belong to Her Majesty in Her Office of Admiralty.
IV.--PRIZE SALVAGE.
[Sidenote: Salvage to Re-captors of British Ship or Goods from Enemy.]
40. Where any Ship or Goods belonging to any of Her Majesty's Subjects,
after being taken as Prize by the Enemy, is or are retaken from the
Enemy by any of Her Majesty's Ships of War, the same shall be restored
by Decree of a Prize Court to the Owner, on his paying as Prize Salvage
One Eighth Part of the Value of the Prize to be decreed and ascertained
by the Court, or such Sum not exceeding One Eighth Part of the estimated
Value of the Prize as may be agreed on between the Owner and the
Re-captors, and approved by Order of the Court; Provided, that where the
Re-capture is made under circumstances of Special Difficulty or Danger,
the Prize Court may, if it thinks fit, award to the Re-captors as Prize
Salvage a larger Part than One Eighth Part, but not exceeding in any
Case One Fourth Part, of the Value of the Prize.
Provided also, that where a Ship after being so taken is set forth or
used by any of Her Majesty's Enemies as a Ship of War, this Provision
for Restitution shall not apply, and the Ship shall be adjudicated on as
in other Cases of Prize.
[Sidenote: Permission to re-captured Ship to proceed on Voyage.]
41. Where a Ship belonging to any of Her Majesty's Subjects, after being
taken as Prize by the Enemy, is retaken from the Enemy by any of Her
Majesty's Ships of War, she may, with the Consent of the Re-captors,
prosecute her Voyage, and it shall not be necessary for the Re-captors
to proceed to Adjudication till her Return to a Port of the United
Kingdom.
The Master or Owner, or his Agent, may, with the Consent of the
Re-captors, unload and dispose of the Goods on board the Ship before
Adjudication.
In case the Ship does not, within Six Months, return to a Port of the
United Kingdom, the Re-captors may nevertheless institute Proceedings
against the Ship or Goods in the High Court of Admiralty, and the Court
may thereupon award Prize Salvage as aforesaid to the Re-captors, and
may enforce Payment thereof, either by Warrant of Arrest against the
Ship or Goods, or by Monition and Attachment against the Owner.
V.--PRIZE BOUNTY.
[Sidenote: Prize Bounty to Officers and Crew present at Engagement with
an Enemy.]
42. If, in relation to any War, Her Majesty is pleased to declare, by
Proclamation or Order in Council, Her Intention to grant Prize Bounty to
the Officers and Crews of Her Ships of War, then such of the Officers
and Crew of any of Her Majesty's Ships of War as are actually present at
the taking or destroying of any armed Ship of any of Her Majesty's
Enemies shall be entitled to have distributed among them as Prize Bounty
a Sum calculated at the Rate of Five Pounds for each Person on board the
Enemy's Ship at the Beginning of the Engagement.
[Sidenote: Ascertainment of Amount of Prize Bounty by Decree of Prize
Court.]
43. The Number of the Persons so on board the Enemy's Ship shall be
proved in a Prize Court, either by the Examinations on Oath of the
Survivors of them, or of any Three or more of the Survivors, or if there
is no Survivor by the Papers of the Enemy's Ship, or by the Examinations
on Oath of Three or more of the Officers and Crew of Her Majesty's Ship,
or by such other Evidence as may seem to the Court sufficient in the
Circumstances.
The Court shall make a Decree declaring the Title of the Officers and
Crew of Her Majesty's Ship to the Prize Bounty, and stating the Amount
thereof.
The Decree shall be subject to Appeal as other Decrees of the Court.
[Sidenote: Payment of Prize Bounty awarded.]
44. On Production of an official Copy of the Decree the Commissioners of
Her Majesty's Treasury shall, out of Money provided by Parliament, pay
the Amount of Prize Bounty decreed, in such Manner as any Order in
Council may from Time to Time direct.
VI.--MISCELLANEOUS PROVISIONS.
_Ransom._
[Sidenote: Power for regulating Ransom by Order in Council.]
45. Her Majesty in Council may from Time to Time, in relation to any
War, make such Orders as may seem expedient, according to Circumstances,
for prohibiting or allowing, wholly or in certain Cases, or subject to
any Conditions or Regulations or otherwise, as may from Time to Time
seem meet, the ransoming or the entering into any contract or Agreement
for the ransoming of any Ship or Goods belonging to any of Her Majesty's
Subjects, and taken as Prize by any of Her Majesty's Enemies.
Any Contract or Agreement entered into, and any Bill, Bond, or other
Security given for Ransom of any Ship or Goods, shall be under the
exclusive Jurisdiction of the High Court of Admiralty as a Prize Court
(subject to Appeal to the Judicial Committee of the Privy Council), and
if entered into or given in contravention of any such Order in Council
shall be deemed to have been entered into or given for an illegal
Consideration.
If any Person ransoms or enters into any Contract or Agreement for
Ransoming any Ship or Goods, in contravention of any such Order in
Council, he shall for every such Offence be liable to be proceeded
against in the High Court of Admiralty at the Suit of Her Majesty in Her
Office of Admiralty, and on Conviction to be fined, in the Discretion of
the Court, any Sum not exceeding Five hundred Pounds.
_Convoy._
[Sidenote: Punishment of Masters of Merchant Vessels under Convoy
disobeying Orders or deserting Convoy.]
46. If the Master or other Person having the Command of any Ship of any
of Her Majesty's Subjects, under the Convoy of any of Her Majesty's
Ships of War, wilfully disobeys any lawful Signal, Instruction, or
Command of the Commander of the Convoy, or without Leave deserts the
Convoy, he shall be liable to be proceeded against in the High Court of
Admiralty at the Suit of Her Majesty in Her Office of Admiralty, and
upon Conviction to be fined, in the Discretion of the Court, any Sum not
exceeding Five hundred Pounds, and to suffer Imprisonment for such Time,
not exceeding One Year, as the Court may adjudge.
_Customs Duties and Regulations._
[Sidenote: Prize Ships and Goods liable to Duties and Forfeiture.]
47. All Ships and Goods taken as Prize and brought into a Port of the
United Kingdom shall be liable to and be charged with the same Rates and
Charges and Duties of Customs as under any Act relating to the Customs
may be chargeable on other Ships and Goods of the like Description; and
All Goods brought in as Prize which would on the voluntary Importation
thereof be liable to Forfeiture or subject to any Restriction under the
Laws relating to the Customs, shall be deemed to be so liable and
subject, unless the Commissioners of Customs see fit to authorise the
Sale or Delivery thereof for Home Use or Exportation, unconditionally or
subject to such Conditions and Regulations as they may direct.
[Sidenote: Regulations of Customs to be observed as to Prize Ships and
Goods.]
48. Where any Ship or Goods taken as Prize is or are brought into a Port
of the United Kingdom, the Master or other Person in charge or command
of the Ship which has been taken or in which the Goods are brought
shall, on Arrival at such Port, bring to at the proper Place of
Discharge, and shall, when required by any Officer of Customs, deliver
an Account in Writing under his Hand concerning such Ship and Goods,
giving such Particulars relating thereto as may be in his Power, and
shall truly answer all Questions concerning such Ship or Goods asked by
any such Officer, and in default shall forfeit a Sum not exceeding One
hundred Pounds, such Forfeiture to be enforced as Forfeitures for
Offences against the Laws relating to the Customs are enforced, and
every such Ship shall be liable to such Searches as other Ships are
liable to, and the Officers of the Customs may freely go on board such
Ship and bring to the Queen's Warehouse any Goods on board the same,
subject, nevertheless, to such Regulations in respect of Ships of War
belonging to Her Majesty as shall from Time to Time be issued by the
Commissioners of Her Majesty's Treasury.
[Sidenote: Power for Treasury to remit Customs Duties in certain cases.]
49. Goods taken as Prize may be sold either for Home Consumption or for
Exportation; and if in the former Case the Proceeds thereof, after
payment of Duties of Customs, are insufficient to satisfy the just and
reasonable claims thereon, the Commissioners of Her Majesty's Treasury
may remit the whole or such Part of the said Duties as they see fit.
_Perjury._
[Sidenote: Punishment of Persons guilty of Perjury.]
50. If any Person wilfully and corruptly swears, declares, or affirms
falsely in any Prize Cause or Appeal, or in any Proceeding under this
Act, or in respect of any Matter required by this Act to be verified on
Oath, or suborns any other Person to do so, he shall be deemed guilty of
Perjury, or of Subornation of Perjury (as the Case may be), and shall be
liable to be punished accordingly.
_Limitation of Actions, &c._
[Sidenote: Actions against Persons executing Act not to be brought
without Notice, &c.]
51. Any Action or Proceeding shall not lie in any Part of Her Majesty's
Dominions against any Person acting under the Authority or in the
Execution or intended Execution or in pursuance of this Act for any
alleged Irregularity or Trespass, or other Act or Thing done or omitted
by him under this Act, unless Notice in Writing (specifying the Cause of
the Action or Proceeding) is given by the intending Plaintiff or
Prosecutor to the intended Defendant One Month at least before the
Commencement of the Action or Proceeding, nor unless the Action or
Proceeding is commenced within Six Months next after the Act or Thing
complained of is done or omitted, or, in case of a Continuation of
Damage, within Six Months next after the doing of such Damage has
ceased.
In any such action the Defendant may plead generally that the Act or
Thing complained of was done or omitted by him when acting under the
authority or in the Execution or intended Execution or in pursuance of
this Act, and may give all special Matter in Evidence; and the Plaintiff
shall not succeed if Tender of sufficient Amends is made by the
Defendant before the Commencement of the Action; and in case no Tender
has been made, the Defendant may, by Leave of the Court in which the
Action is brought, at any Time pay into Court such Sum of Money as he
thinks fit, whereupon such Proceeding and Order shall be had and made in
and by the Court as may be had and made on the Payment of Money into
Court in an ordinary Action; and if the Plaintiff does not succeed in
the Action, the Defendant shall receive such full and reasonable
Indemnity as to all Costs, Charges, and Expenses incurred in and about
the Action as may be taxed and allowed by the proper Officer, subject to
Review; and though a Verdict is given for the Plaintiff in the Action he
shall not have Costs against the Defendant, unless the Judge before whom
the Trial is had certifies his Approval of the Action.
Any such Action or Proceeding against any Person in Her Majesty's Naval
Service, or in the Employment of the Lords of the Admiralty, shall not
be brought or instituted elsewhere than in the United Kingdom.
_Petitions of Right._
[Sidenote: Jurisdiction of High Court of Admiralty on Petitions of Right
in certain Cases, as in 23 & 24 Vict. c. 34.]
52. A Petition of Right, under The Petitions of Right Act, 1860, may, if
the Suppliant thinks fit, be intituled in the High Court of Admiralty,
in case the Subject Matter of the Petition or any material part thereof
arises out of the Exercise of any Belligerent Right on behalf of the
Crown, or would be cognizable in a Prize Court within Her Majesty's
Dominions if the same were a Matter in dispute between private Persons.
Any Petition of Right under the last-mentioned Act, whether intituled in
the High Court of Admiralty or not, may be prosecuted in that Court, if
the Lord Chancellor thinks fit so to direct.
The Provisions of this Act relative to Appeal, and to the framing and
Approval of General Orders for regulating the Procedure and Practice of
the High Court of Admiralty, shall extend to the Case of any such
Petition of Right intituled or directed to be prosecuted in that Court;
and, subject thereto, all the Provisions of The Petitions of Right Act,
1860, shall apply, _mutatis mutandis_, in the Case of any such Petition
of Right; and for the Purposes of the present Section the Terms "Court"
and "Judge" in that Act shall respectively be understood to include and
to mean the High Court of Admiralty and the Judge thereof, and other
Terms shall have the respective Meanings given to them in that Act.
_Orders in Council._
[Sidenote: Power to make Orders in Council.]
53. Her Majesty in Council may from Time to Time make such Orders in
Council as seem meet for the better Execution of this Act.
[Sidenote: Order in Council to be gazetted, &c.]
54. Every Order in Council under this Act shall be published in the
_London Gazette_, and shall be laid before both Houses of Parliament
within Thirty Days after the making thereof, if Parliament is then
sitting, and, if not, then within Thirty Days after the next Meeting of
Parliament.
_Savings._
[Sidenote: Not to affect Rights of Crown; Effect of Treaties, &c.]
55. Nothing in this Act shall--
(1) give to the Officers and Crew of any of Her Majesty's Ships of
War any Right or Claim in or to any Ship or Goods taken as Prize
or the Proceeds thereof, it being the intent of this Act that such
Officers and Crews shall continue to take only such Interest (if
any) in the Proceeds of Prizes as may be from Time to Time granted
to them by the Crown; or
(2) affect the Operation of any existing Treaty or Convention with
any Foreign Power; or
(3) take away or abridge the Power of the Crown to enter into any
Treaty or Convention with any Foreign Power containing any
Stipulation that may seem meet concerning any Matter to which
this Act relates; or
(4) take away, abridge, or control, further or otherwise than as
expressly provided by this Act, any Right, Power, or Prerogative
of Her Majesty the Queen in right of Her Crown, or in right of Her
Office of Admiralty, or any Right or Power of the Lord High
Admiral of the United Kingdom, or of the Commissioners for
executing the Office of Lord High Admiral; or
(5) take away, abridge, or control, further or otherwise than as
expressly provided by this Act, the Jurisdiction or Authority of
a Prize Court to take cognizance of and judicially proceed upon
any Capture, Seizure, Prize, or Reprisal of any Ship or Goods, or
to hear and determine the same, and, according to the Course of
Admiralty and the Law of Nations, to adjudge and condemn any Ship
or Goods, or any other Jurisdiction or Authority of or
exerciseable by a Prize Court.
_Commencement._
[Sidenote: Commencement of Act.]
56. This Act shall commence on the Commencement of The Naval Agency and
Distribution Act, 1864.
APPENDIX XI
THE PRIZE COURTS ACTS, 1894
57 & 58 VICT., CHAPTER 39
An Act to make further provision for the establishment of
Prize Courts, and for other purposes connected therewith.
[_17th August 1894._]
Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the same, as
follows:
[Sidenote: Short Title.]
1. This Act may be cited as the Prize Courts Act, 1894.
[Sidenote: Constitution of Prize Courts in British Possessions.]
2.--(1) Any commission, warrant, or instructions from Her Majesty the
Queen or the Admiralty for the purpose of commissioning or regulating
the procedure of a prize court at any place in a British possession may,
notwithstanding the existence of peace, be issued at any time, with a
direction that the court shall act only upon such proclamation as
herein-after mentioned being made in the possession.
(2) Where any such commission, warrant, or instructions have been
issued, then, subject to instructions from Her Majesty, the Vice-Admiral
of such possession may, when satisfied, by information from a Secretary
of State or otherwise, that war has broken out between Her Majesty and
any foreign State, proclaim that war has so broken out, and thereupon
the said commission, warrant, and instructions shall take effect as if
the same had been issued after the breaking out of such war and such
foreign State were named therein.
[Sidenote: 53 & 54 Vict. c. 27.]
(3) The said commission and warrant may authorise either a
Vice-Admiralty Court or a Colonial Court of Admiralty, within the
meaning of the Colonial Courts of Admiralty Act, 1890, to act as a prize
court, and may establish a Vice-Admiralty Court for that purpose.
(4) Any such commission, warrant, or instructions may be revoked or
altered from time to time.
(5) A court duly authorised to act as a prize court during any war
shall after the conclusion of the war continue so to act in relation to,
and finally dispose of, all matters and things which arose during the
war, including all penalties and forfeitures incurred during the war.
[Sidenote: Rules of Court for and Fees in Prize Courts. 27 & 28 Vict. c.
25.]
3.--(1) Her Majesty the Queen in Council may make rules of court for
regulating, subject to the provisions of the Naval Prize Act, 1864, and
this Act, the procedure and practice of prize courts within the meaning
of that Act, and the duties and conduct of the officers thereof, and of
the practitioners therein, and for regulating the fees to be taken by
the officers of the courts, and the costs, charges, and expenses to be
allowed to the practitioners therein.
(2) Every rule so made shall, whenever made, take effect at the time
therein mentioned, and shall be laid before both Houses of Parliament,
and shall be kept exhibited in a conspicuous place in each court to
which it relates.
[Sidenote: 27 & 28 Vict. c. 25.]
(3) This section shall be substituted for section thirteen of the Naval
Prize Act, 1864, which section is hereby repealed.
[Sidenote: 53 & 54 Vict c. 27.]
(4) If any Colonial Court of Admiralty within the meaning of the
Colonial Courts of Admiralty Act, 1890, is authorised under this Act or
otherwise to act as a prize court, all fees arising in respect of prize
business transacted in the court shall be fixed, collected, and applied
in like manner as the fees arising in respect of the Admiralty business
of the court under the said Act.
[Sidenote: As to Vice-Admiralty Courts.]
4. Her Majesty the Queen in Council may make rules of court for
regulating the procedure and practice, including fees and costs, in a
Vice-Admiralty Court, whether under this Act or otherwise.
[Sidenote: Repeal of 39 & 40 Geo. 3, c. 79, s. 25.]
5. Section twenty-five of the Government of India Act, 1800, is hereby
repealed.
APPENDIX XII
NAVAL PRIZE BILL OF 1911
_Passed by the House of Commons, but thrown out by the House
of Lords_
A Bill to Consolidate, with Amendments, the Enactments
relating to Naval Prize of War.
Whereas at the Second Peace Conference held at The Hague in the year
nineteen hundred and seven a Convention, the English translation whereof
is set forth in the First Schedule to this Act, was drawn up, but it is
desirable that the same should not be ratified by His Majesty until such
amendments have been made in the law relating to naval prize of war as
will enable effect to be given to the Convention:
And whereas for the purpose aforesaid it is expedient to consolidate the
law relating to naval prize of war with such amendments as aforesaid and
with certain other minor amendments:
Be it therefore enacted by the King's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows:--
PART I.--COURTS AND OFFICERS.
_The Prize Court in England._
[Sidenote: The High Court. [54 & 55 Vict. c. 53, s. 4.]]
1.--(1) The High Court shall, without special warrant, be a prize court,
and shall, on the high seas, and throughout His Majesty's Dominions, and
in every place where His Majesty has jurisdiction, have all such
jurisdiction as the High Court of Admiralty possessed when acting as a
prize court, and generally have jurisdiction to determine all questions
as to the validity of the capture of a ship or goods, the legality of
the destruction of a captured ship or goods, and as to the payment of
compensation in respect of such a capture or destruction.
For the purposes of this Act the expression "capture" shall include
seizure for the purpose of the detention, requisition, or destruction of
any ship or goods which, but for any convention, would be liable to
condemnation, and the expressions "captured" and "taken as prize" shall
be construed accordingly, and where any ship or goods have been so
seized the court may make an order for the detention, requisition, or
destruction of the ship or goods and for the payment of compensation in
respect thereof.
(2) Subject to rules of court, all causes and matters within the
jurisdiction of the High Court as a prize court shall be assigned to the
Probate, Divorce, and Admiralty Division of the Court.
[Sidenote: Power of High Court to enforce decrees of other courts. [27 &
28 Vict. c. 25. s. 4.]]
2. The High Court as a prize court shall have power to enforce any order
or decree of a prize court in a British possession, and any order of the
Supreme Prize Court constituted under this Act in a prize appeal.
_Prize Courts in British Possessions._
[Sidenote: Prize courts in British possessions. [57 & 58 Vict. c. 39. s.
2 (1) and (3). 53 & 54 Vict. c. 27, s. 2 (3) and s. 9.] 53 & 54 Vict. c.
27.]
3. His Majesty may, by commission addressed to the Admiralty, empower
the Admiralty to authorise, and the Admiralty may thereupon by warrant
authorise, either a Vice-Admiralty court or a Colonial Court of
Admiralty, within the meaning of the Colonial Courts of Admiralty Act,
1890, to act as a prize court in a British possession, or may in like
manner establish a Vice-Admiralty court for the purpose of so acting;
and any court so authorised shall, subject to the terms of the warrant
from the Admiralty, have all such jurisdiction as is by this Act
conferred on the High Court as a prize court.
Commissions. [57 & 58 Vict. c. 39, s. 2 (1), (2).]
4.--(1) Any commission, warrant, or instructions from His Majesty the
King or the Admiralty for the purpose of commissioning a prize court at
any place in a British possession may, notwithstanding the existence of
peace, be issued at any time, with a direction that the court shall act
only upon such proclamation as herein-after mentioned being made in the
possession.
(2) Where any such commission, warrant, or instructions have been
issued, then, subject to instructions from His Majesty the Vice-Admiral
of such possession may, when satisfied by information from a Secretary
of State or otherwise that war has broken out between His Majesty and
any foreign State, proclaim that war has so broken out, and thereupon
the said commission, warrant, and instructions shall take effect as if
the same had been issued after the breaking out of such war and such
foreign State were named therein.
(3) Any such commission, warrant, or instructions may be revoked or
altered from time to time.
[Sidenote: Enforcement of orders.]
5. Every prize court in a British possession shall enforce within its
jurisdiction all orders and decrees of the High Court and of any other
prize court in a British possession in prize causes, and all orders of
the Supreme Prize Court constituted under this Act in prize appeals.
[Sidenote: Remuneration of certain judges of prize courts in a British
possession. [27 & 28 Vict. c. 25, ss. 10, 11.] 53 & 54 Vict. c. 27.]
6.--(1) His Majesty in Council may, with the concurrence of the
Treasury, grant to the judge of any prize court in a British possession,
other than a Colonial Court of Admiralty within the meaning of the
Colonial Courts of Admiralty Act, 1890, remuneration, at a rate not
exceeding five hundred pounds a year, payable out of money provided by
Parliament, subject to such regulations as seem meet.
(2) A judge to whom remuneration is so granted shall not be entitled to
any further emolument, arising from fees or otherwise, in respect of
prize business transacted in his court.
(3) An account of all such fees shall be kept by the registrar of the
court, and the amount thereof shall be carried to and form part of the
Consolidated Fund of the United Kingdom.
[Sidenote: Returns from prize courts in British possessions. [27 & 28
Vict. c. 25, s. 12.]]
7. The registrar of every prize court in a British possession shall, on
the first day of January and first day of July in every year, make out a
return (in such form as the Admiralty from time to time direct) of all
cases adjudged in the court since the last half-yearly return, and shall
with all convenient speed send the same to the Admiralty registrar of
the Probate, Divorce, and Admiralty Division of the High Court, who
shall keep the same in the Admiralty registry of that Division, and who
shall as soon as conveniently may be, send a copy of the returns of each
half year to the Admiralty, and the Admiralty shall lay the same before
both houses of Parliament.
[Sidenote: Fees. [57 & 58 Vict. c. 39 s. 3 (4).] 53 & 54 Vict. c. 27.]
8. If any Colonial Court of Admiralty within the meaning of the Colonial
Courts of Admiralty Act, 1890, is authorised under this Act or otherwise
to act as a prize court, all fees arising in respect of prize business
transacted in the court shall be fixed, collected, and applied in like
manner as the fees arising in respect of the Admiralty business of the
court under the first-mentioned Act.
_Appeals._
[Sidenote: Appeals to Supreme Prize Court. [54 & 55 Vict. c. 53, s. 4
(3).]]
9.--(1) Any appeal from the High Court when acting as a prize court, or
from a prize court in a British possession, shall lie only to a court
(to be called the Supreme Prize Court) consisting of such members for
the time being of the Judicial Committee of the Privy Council as may be
nominated by His Majesty for that purpose.
(2) The Supreme Prize Court shall be a court of record with power to
take evidence on oath, and the seal of the court shall be such as the
Lord Chancellor may from time to time direct.
(3) Every appeal to the Supreme Prize Court shall be heard before not
less than three members of the court sitting together.
(4) The registrar and other officers for the time being of the Judicial
Committee of the Privy Council shall be registrar and officers of the
Supreme Prize Court.
[Sidenote: Procedure on, and conditions of, appeals. [27 & 28 Vict. c.
25, s. 5.]]
10.--(1) An appeal shall lie to the Supreme Prize Court from any order
or decree of a prize court, as of right in case of a final decree, and
in other cases with the leave of the court making the order or decree or
of the Supreme Prize Court.
(2) Every appeal shall be made in such manner and form and subject to
such conditions and regulations (including regulations as to fees,
costs, charges, and expenses) as may for the time being be directed by
order in Council.
[Sidenote: Jurisdiction of the Supreme Prize Court in prize appeals. [27
& 28 Vict. c. 25, s. 6; 54 & 55 Vict. c. 53, s. 4 (3).]]
11. The Supreme Prize Court shall have jurisdiction to hear and
determine any such appeal, and may therein exercise all such powers as
are under this Act vested in the High Court, and all such powers as were
wont to be exercised by the Commissioners of Appeal or by the Judicial
Committee of the Privy Council in prize causes.
_Rules of Court._
[Sidenote: Rules of court. [57 & 58 Vict c. 39, s. 3.]]
12. His Majesty in Council may make rules of court for regulating,
subject to the provisions of this Act, the procedure and practice of the
Supreme Prize Court and of the Prize Courts within the meaning of this
Act, and the duties and conduct of the officers thereof, and of the
practitioners therein, and for regulating the fees to be taken by the
officers of the courts, and the costs, charges, and expenses to be
allowed to the practitioners therein.
_Officers of Prize Courts._
[Sidenote: Prohibition of officer of prize court acting as advocate, &c.
[27 & 28 Vict. c. 25, ss. 14, 15.]]
13. It shall not be lawful for any registrar, marshal, or other officer
of the Supreme Prize Court or of any other prize court, directly or
indirectly to act or be in any manner concerned as advocate, proctor,
solicitor, or agent, or otherwise, in any prize appeal or cause.
[Sidenote: Protection of persons acting in execution of Act. [27 & 28
Vict. c. 25, s. 51.]]
14. The Public Authorities Protection Act, 1893, shall apply to any
action, prosecution, or other proceeding against any person for any act
done in pursuance or execution or intended execution of this Act or in
respect of any alleged neglect or default in the execution of this Act
whether commenced in the United Kingdom or elsewhere within His
Majesty's dominions.
_Continuance of Proceedings._
[Sidenote: Continuance of proceedings after conclusion of war. [57 & 58
Vict. c. 39, s. 2 (5).]]
15. A court duly authorised to act as a prize court during any war shall
after the conclusion of the war continue so to act in relation to, and
finally dispose of, all matters and things which arose during the war,
including all penalties, liabilities and forfeitures incurred during the
war.
Part II.--PROCEDURE IN PRIZE CAUSES.
[Sidenote: Custody of ships taken as prize. [27 & 28 Vict. c. 25, s.
16.]]
16. Where a ship (not being a ship of war) is taken as prize, and is or
is brought within the jurisdiction of a prize court, she shall forthwith
be delivered up to the marshal of the court, or, if there is no such
marshal, to the principal officer of customs at the port, and shall
remain in his custody, subject to the orders of the court.
[Sidenote: Bringing in of ship papers. [27 & 28 Vict. c. 25, s. 17.]]
17.--(1) The captors shall in all cases, with all practicable speed,
bring the ship papers into the registry of the court.
(2) The officer in command, or one of the chief officers of the
capturing ship, or some other person who was present at the capture and
saw the ship papers delivered up or found on board, shall make oath that
they are brought in as they were taken, without fraud, addition,
subduction, or alteration, or else shall account on oath to the
satisfaction of the court for the absence or altered condition of the
ship papers or any of them.
(3) Where no ship papers are delivered up or found on board the captured
ship, the officer in command, or one of the chief officers of the
capturing ship, or some other person who was present at the capture,
shall make oath to that effect.
[Sidenote: Examination of persons from captured ship. [27 & 28 Vict. c.
25, s. 19.]]
18. The captors shall also, unless the court otherwise directs, with all
practicable speed after the captured ship is brought into port, bring a
convenient number of the principal persons belonging to the captured
ship before the judge of the court or some person authorised in this
behalf, by whom they shall be examined on oath.
[Sidenote: Delivery of ship on bail. [27 & 28 Vict. c. 25, s. 25.]]
19. The court may, if it thinks fit, at any time after a captured ship
has been appraised direct that the ship be delivered up to the claimant
on his giving security to the satisfaction of the court to pay to the
captors the appraised value thereof in case of condemnation.
[Sidenote: Power to order sale. [27 & 28 Vict. c. 25, ss. 26 & 27.]]
20. The court may at any time, if it thinks fit, on account of the
condition of the captured ship, or on the application of a claimant, or
on or after condemnation, order that the captured ship be appraised (if
not already appraised), and be sold.
[Sidenote: Power to award compensation notwithstanding release of ship.]
21. Where a ship has been taken as prize, a prize court may award
compensation in respect of the capture notwithstanding that the ship has
been released, whether before or after the institution of any
proceedings in the court in relation to the ship.
[Sidenote: Application and effect of Part II. [27 & 28 Vict. c. 25, s.
31.]]
22.--(1) The provisions of this Part of this Act relating to ships shall
extend and apply, with the necessary adaptations, to goods taken as
prize.
(2) The provisions of this Part of this Act shall have effect subject to
any rules of court dealing with the subject-matter thereof.
Part III.--INTERNATIONAL PRIZE COURT.
[Sidenote: Appointment of British judge and deputy judge of
International Court. [_See_ 39 & 40 Vict. c. 59, s. 6.]]
23.--(1) In the event of an International Prize Court being constituted
in accordance with the said Convention or with any Convention entered
into for the purpose of enabling any power to become a party to the said
Convention or for the purpose of amending the said Convention in matters
subsidiary or incidental thereto (hereinafter referred to as the
International Prize Court), it shall be lawful for His Majesty from time
to time to appoint a judge and deputy judge of the court.
(2) A person shall not be qualified to be appointed by His Majesty a
judge or deputy judge of the court unless he has been, at or before the
time of his appointment, the holder, for a period of not less than two
years, of some one or more of the offices described as high judicial
offices by the Appellate Jurisdiction Act, 1876, as amended by any
subsequent enactment.
[Sidenote: Payment of contribution towards expenses of International
Prize Court.]
24. Any sums required for the payment of any contribution towards the
general expenses of the International Prize Court payable by His Majesty
under the said Convention shall be charged on and paid out of the
Consolidated Fund and the growing proceeds thereof.
[Sidenote: Appeals to International Prize Court.]
25. In cases to which this Part of this Act applies an appeal from the
Supreme Prize Court shall lie to the International Prize Court.
[Sidenote: Transfer of cases to the International Prize Court.]
26. If in any case to which this Part of this Act applies final judgment
is not given by the prize court, or on appeal by the Supreme Prize
Court, within two years from the date of the capture, the case may be
transferred to the International Prize Court.
[Sidenote: Rules as to appeals and transfers to International Prize
Court.]
27. His Majesty in Council may make rules regulating the manner in which
appeals and transfers under this Part of this Act may be made and with
respect to all such matters (including fees, costs, charges, and
expenses) as appear to His Majesty to be necessary for the purpose of
such appeals and transfers, or to be incidental thereto or consequential
thereon.
[Sidenote: Enforcement of orders of International Prize Court.]
28. The High Court and every prize court in a British possession shall
enforce within its jurisdiction all orders and decrees of the
International Prize Court in appeals and cases transferred to the Court
under this Part of this Act.
[Sidenote: Application of Part III.]
29. This part of this Act shall apply only to such cases and during such
period as may for the time being be directed by Order in Council, and
His Majesty may by the same or any other Order in Council apply this
Part of this Act subject to such conditions, exceptions and
qualifications as may be deemed expedient.
Part IV.--PRIZE SALVAGE AND PRIZE BOUNTY.
_Prize Salvage._
[Sidenote: Salvage to re-captors of British ship or goods from enemy.]
30. Where any ship or goods belonging to any of His Majesty's subjects,
after being taken as prize by the enemy, is or are retaken from the
enemy by any of His Majesty's ships of war, the same shall be restored
by decree of a prize court to the owner.
[Sidenote: Permission to recaptured ship to proceed on voyage and
postponement of proceedings. [27 & 28 Vict. c. 25, s. 41.]]
31.--(1) Where a ship belonging to any of his Majesty's subjects, after
being taken as prize by the enemy, is retaken from the enemy by any of
His Majesty's ships of war, she may, with the consent of the
re-captors, prosecute her voyage, and it shall not be necessary for the
re-captors to proceed to adjudication till her return to a port of His
Majesty's dominions.
(2) The master or owner, or his agent, may, with the consent of the
re-captors, unload and dispose of the goods on board the ship before
adjudication.
(3) If the ship does not, within six months, return to a port of His
Majesty's dominions, the re-captors may nevertheless institute
proceedings against the ship or goods in the High Court, or in any prize
court in a British possession, and the court may thereupon award prize
salvage as aforesaid to the re-captors, and may enforce payment thereof,
either by warrant of arrest against the ship or goods, or in the same
manner as a judgment of the court in which the proceedings are
instituted may be enforced.
_Prize Bounty._
[Sidenote: Prize bounty to officers and crew present in case of capture
or destruction of enemy's ship. [27 & 28 Vict. c. 25, s. 42.]]
32. If, in relation to any war, His Majesty is pleased to declare, by
proclamation or Order in Council, his intention to grant prize bounty to
the officers and crews of his ships of war, then such of the officers
and crew of any of His Majesty's ships of war as are actually present at
the taking or destroying of any armed ship of any of His Majesty's
enemies shall be entitled to have distributed among them as prize bounty
a sum calculated at such rates and in such manner as may be specified in
the proclamation or Order in Council.
[Sidenote: Ascertainment of amount of prize bounty. [27 & 28 Vict. c.
25, s. 43.]]
33.--(1) A prize court shall make a decree declaring the title of the
officers and crew of His Majesty's ship to the prize bounty, and stating
the amount thereof.
(2) The decree shall be subject to appeal as other decrees of the court.
Part V.--SPECIAL CASES OF JURISDICTION.
[Sidenote: Jurisdiction in case of capture in land expedition. [27 & 28
Vict. c. 25, s. 34.]]
34. Where, in an expedition of any of His Majesty's naval or naval and
military forces against a fortress or possession on land goods belonging
to the state of the enemy, or to a public trading company of the enemy
exercising powers of government, are taken in the fortress or
possession, or a ship is taken in waters defended by or belonging to the
fortress or possession, a prize court shall have jurisdiction as to the
goods or ships so taken, and any goods taken on board the ship, as in
case of prize.
[Sidenote: Jurisdiction in case of prize taken in expedition with ally.
[27 & 28 Vict. c. 25, s. 35.]]
35. Where any ship or goods is or are taken by any of His Majesty's
naval or naval and military forces while acting in conjunction with any
forces of any of His Majesty's allies, a prize court shall have
jurisdiction as to the same as in case of prize, and shall have power,
after condemnation, to apportion the due share of the proceeds to His
Majesty's ally, the proportionate amount and the disposition of which
share shall be such as may from time to time be agreed between His
Majesty and His Majesty's ally.
[Sidenote: Jurisdiction of High Court on petitions of right as under 23
& 24 Vict. c. 34. [27 & 28 Vict. c. 25, s. 52.]]
36.--(1) In any case where a petition of right under the Petitions of
Right Act, 1860, is presented and the subject-matter of the petition or
any material part thereof arises out of the exercise of any belligerent
right on behalf of the Crown, or would be cognizable in a prize court
within His Majesty's dominions if the same were a matter in dispute
between private persons, the petition may, if the subject thinks fit, be
intituled in the High Court as a prize court.
(2) Any petition of right under the last-mentioned Act, whether
intituled in the High Court or not, may be prosecuted in that court if
the Lord Chancellor thinks fit so to direct.
(3) The provisions of this Act relative to appeal, and to the making of
orders for regulating the procedure and practice of the High Court as a
prize court, shall extend to the case of any such petition of right
intituled or directed to be prosecuted in that court; and, subject
thereto, all the provisions of the Petitions of Right Act, 1860, shall
apply with such adaptations as may be necessary in the case of any such
petition of right; and for the purposes of this section the terms
"court" and "judge" in that Act shall respectively be understood to
include the High Court as a prize court and the judges thereof, and
other terms shall have the respective meanings given to them in that
Act.
Part VI.--OFFENCES.
[Sidenote: Offences by captors. [27 & 28 Vict. c. 25, s. 37.]]
37. A prize court, on proof of any offence against the law of nations,
or against this Act, or any Act relating to naval discipline, or against
any Order in Council or royal proclamation, or of any breach of His
Majesty's instructions relating to prize, or of any act of disobedience
to the orders of the Admiralty, or to the command of a superior officer,
committed by the captors in relation to any ship or goods taken as
prize, or in relation to any person on board any such ship, may, on
condemnation, reserve the prize to His Majesty's disposal,
notwithstanding any grant that may have been made by His Majesty in
favour of captors.
[Sidenote: Perjury. [27 & 28 Vict. c. 25, s. 50.]]
38. If any person wilfully and corruptly swears, declares, or affirms
falsely in any prize cause or appeal, or in any proceeding under this
Act, or in respect of any matter required by this Act to be verified on
oath, or suborns any other person to do so, he shall be deemed guilty of
perjury, or of subornation of perjury (as the case may be), and shall be
liable to be punished accordingly.
[Sidenote: Disobedience to, or desertion of, convoy. [27 & 28 Vict. c.
25, s. 46.]]
39. If the master or other person having the command of any British ship
under the convoy of any of His Majesty's ships of war, wilfully disobeys
any lawful signal, instruction, or command of the commander of the
convoy, or without leave deserts the convoy, he shall be liable to be
proceeded against in the High Court at the suit of His Majesty in His
Office of Admiralty, and upon conviction to be fined, in the discretion
of the Court, any sum not exceeding five hundred pounds, and to suffer
imprisonment for such time, not exceeding one year, as the Court may
adjudge.
Part VII.--MISCELLANEOUS PROVISIONS.
_Ransom._
[Sidenote: Power for regulating ransom by Order in Council. [27 & 28
Vict. c. 25, s. 45.]]
40.--(1) His Majesty in Council may, in relation to any war, make such
orders as may seem expedient according to circumstances for prohibiting
or allowing, wholly or in certain cases or subject to any conditions or
regulations or otherwise as may from time to time seem meet, the
ransoming or the entering into any contract or agreement for the
ransoming of any ship or goods belonging to any of His Majesty's
subjects, and taken as prize by any of His Majesty's enemies.
(2) Any contract or agreement entered into, and any bill, bond, or other
security given for ransom of any ship or goods, shall be under the
exclusive jurisdiction of the High Court as a prize court (subject to
appeal to the Supreme Prize Court), and if entered into or given in
contravention of any such Order in Council shall be deemed to have been
entered into or given for an illegal consideration.
(3) If any person ransoms or enters into any contract or agreement for
ransoming any ship or goods, in contravention of any such Order in
Council, he shall for every such offence be liable to be proceeded
against in the High Court at the suit of His Majesty in His Office of
Admiralty, and on conviction to be fined, in the discretion of the
Court, any sum not exceeding five hundred pounds.
_Customs Duties and Regulations._
[Sidenote: Prize ships and goods liable to customs duties and
forfeiture. [27 & 28 Vict. c. 25, s. 47.]]
41.--(1) All ships and goods taken as prize and brought into a port of
His Majesty's dominions shall be liable to and be charged with the same
rates and charges and duties of customs as under any Act relating to the
customs in force at the port may be chargeable on other ships and goods
of the like description.
(2) All goods brought in as prize which would on the voluntary
importation thereof be liable to forfeiture, or subject to any
restriction, under the laws relating to the customs, shall be deemed to
be so liable and subject, unless the Customs authority see fit to
authorise the sale or delivery thereof for home use or exportation,
unconditionally or subject to such conditions and regulations as they
may direct.
[Sidenote: Regulations of customs as to prize ships and goods. [27 & 28
Vict. c. 25, s. 48.]]
42. Where any ship or goods taken as prize is or are brought into a port
of His Majesty's dominions, the master or other person in charge or
command of the ship which has been taken or in which the goods are
brought shall, on arrival at such port, bring to at the proper place of
discharge, and shall, when required by any officer of customs, deliver
an account in writing under his hand concerning such ship and goods,
giving such particulars relating thereto as may be in his power, and
shall truly answer all questions concerning such ship or goods asked by
any such officer, and in default shall forfeit a sum not exceeding one
hundred pounds, such forfeiture to be enforced as forfeitures for
offences against the laws relating to the customs in force at the port
are enforced, and every such ship shall be liable to such searches as
other ships are liable to, and the officers of the customs may freely go
on board such ship and bring to the King's or other warehouse any goods
on board the same, subject, nevertheless, to such regulations in respect
of ships of war belonging to His Majesty as shall from time to time be
issued by His Majesty.
[Sidenote: Sale of prize goods and power to remit customs duties. [27 &
28 Vict. c. 25, s. 49.]]
43. Goods taken as prize may be sold either for home consumption or for
exportation; and if in the former case the proceeds thereof, after
payment of duties of customs, are insufficient to satisfy the just and
reasonable claims thereon, the Customs authority may remit the whole or
such part of the said duties as they see fit.
_Capture by Ship other than a Ship of War._
[Sidenote: Prizes taken by Ships other than ships of war to be droits of
Admiralty. [27 & 28 Vict. c. 25, s. 39.]]
44. Any ship or goods taken as prize by any of the officers and crew of
a ship other than a ship of war of His Majesty shall, on condemnation,
belong to His Majesty in His office of Admiralty.
_Supplemental._
[Sidenote: Saving for rights of Crown; effect of treaties, &c. [27 & 28
Vict. c. 25, s. 55.]]
45. Nothing in this Act shall--
(1) give to the officers and crew of any of His Majesty's ships of
war any right or claim in or to any ship or goods taken as prize
or the proceeds thereof, it being the intent of this Act that such
officers and crews shall continue to take only such interest (if
any) in the proceeds of prizes as may be from time to time granted
to them by the Crown; or
(2) affect the operation of any existing treaty or convention with
any foreign power; or
(3) take away or abridge the power of the Crown to enter into any
treaty or convention with any foreign power containing any
stipulation that may seem meet concerning any matter to which this
Act relates; or
(4) take away, abridge, or control, further or otherwise than as
expressly provided by this Act, any right, power, or prerogative
of His Majesty the King in right of His Crown, or in right of His
office of Admiralty, or any right or power of the Admiralty; or
(5) take away, abridge, or control, further or otherwise than as
expressly provided by this Act, the jurisdiction or authority of a
prize court to take cognizance of and judicially proceed upon any
capture, seizure, prize, or reprisal of any ship or goods, and to
hear and determine the same, and, according to the course of
Admiralty and the law of nations, to adjudge and condemn any ship
or goods, or any other jurisdiction or authority of or
exerciseable by a prize court.
[Sidenote: Power to make Orders in Council. [27 & 28 Vict. c. 25, ss.
53, 54.]]
46.--(1) His Majesty in Council may from time to time make such Orders
in Council as seem meet for the better execution of this Act.