Prize (law) - AbsoluteAstronomy.com

Prize is a term used in admiralty law

Admiralty law

Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...

to refer to equipment, vehicles, vessels, and cargo

Cargo

Cargo is goods or produce transported, generally for commercial gain, by ship, aircraft, train, van or truck. In modern times, containers are used in most intermodal long-haul cargo transport.-Marine:...

captured during armed conflict. The most common use of prize in this sense is the capture of an enemy ship

Ship

Since the end of the age of sail a ship has been any large buoyant marine vessel. Ships are generally distinguished from boats based on size and cargo or passenger capacity. Ships are used on lakes, seas, and rivers for a variety of activities, such as the transport of people or goods, fishing,...

and its cargo

Cargo

as a prize of war

Prize of war

A prize of war is a piece of military property seized by the victorious party after a war or battle, typically at sea. This term was used nearly exclusively in terms of a captured ship during the 18th and 19th centuries....

. In the past, it was common that the capturing force would be allotted a share of the worth

Prize money

Prize money has a distinct meaning in warfare, especially naval warfare, where it was a monetary reward paid out to the crew of a ship for capturing an enemy vessel...

of the captured prize. Nations often granted letters of marque which would entitle private parties to capture enemy property

Property

Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...

, usually ships. Once the ship was secured on friendly territory, it would be made the subject of a prize case, an in rem
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action in rem...

proceeding in which the court determined the status of the condemned property and the manner in which it was to be disposed of.

History and sources of prize law

In his book The Prize Game, Donald Petrie writes, "[a]t the outset, prize taking was all smash and grab, like breaking a jeweler's window, but by the fifteenth century a body of guiding rules, the maritime law of nations, had begun to evolve and achieve international recognition." Grotius's seminal treatise on international law published in 1604 called De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty) (of which Chapter 12, "Mare Liberum" inter alia founded the doctrine of freedom of the seas) was an advocate's brief justifying Dutch seizures of Spanish and Portuguese shipping. In defending the practice of taking prizes as not merely traditional or customary but on examination, just, Grotius's Commentary points out that the etymology of the name of the Greek war god Ares was the verb "to seize" and that the law of nations had deemed looting enemy property legal since the beginning of Western recorded history in Homeric times.

Prize law reached its fullest development in the period from the Seven Years War of 1756-63 to the American Civil War

American Civil War

The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

of 1861-65, which largely coincides with the last century of fighting sail and includes the Napoleonic Wars

Napoleonic Wars

The Napoleonic Wars were a series of wars declared against Napoleon's French Empire by opposing coalitions that ran from 1803 to 1815. As a continuation of the wars sparked by the French Revolution of 1789, they revolutionised European armies and played out on an unprecedented scale, mainly due to...

, the American

American Revolution

The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...

and French Revolution

French Revolution

The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...

s, and America's Quasi-War

Quasi-War

The Quasi-War was an undeclared war fought mostly at sea between the United States and French Republic from 1798 to 1800. In the United States, the conflict was sometimes also referred to as the Franco-American War, the Pirate Wars, or the Half-War.-Background:The Kingdom of France had been a...

with France of the late 1790s. Much of Anglo-American prize law derives from 18th Century British precedents, in particular a compilation called the 1753 Report of the Law Officers authored by William Murray, 1st Earl of Mansfield

William Murray, 1st Earl of Mansfield

William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...

(1705–93) said to be the most important exposition of prize law published in English, and the subsequent High Court of Admiralty decisions of William Scott, Lord Stowell (1743–1836). American Justice Joseph Story

Joseph Story

Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...

, the leading United States judicial authority on prize law, drew heavily on the 1753 report and Lord Stowell's decisions, as did Francis Upton, who wrote the last major American treatise on prize law, his Maritime Warfare and Prize. While the Anglo-American common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

case precedents are the most accessible description of Prize Law, it is important to bear in mind that in prize cases courts construe and apply international customs and usages, the Law of Nations, and not the laws or precedents of any one country.

Fortunes in prize money were to be made at sea as vividly depicted in the novels of C. S. Forester

C. S. Forester

Cecil Scott "C.S." Forester was the pen name of Cecil Louis Troughton Smith , an English novelist who rose to fame with tales of naval warfare. His most notable works were the 11-book Horatio Hornblower series, depicting a Royal Navy officer during the Napoleonic era, and The African Queen...

and Patrick O'Brian

Patrick O'Brian

Patrick O'Brian, CBE , born Richard Patrick Russ, was an English novelist and translator, best known for his Aubrey–Maturin series of novels set in the Royal Navy during the Napoleonic Wars and centred on the friendship of English Naval Captain Jack Aubrey and the Irish–Catalan physician Stephen...

. During the American Revolution the combined American naval and privateering prizes totaled nearly $24 million; in the War of 1812, $45 million. This at a time when $200 was a generous year's wages for a sailor; his share of a single prize could fetch ten or twenty times his yearly pay, and taking five or six prizes in one voyage was common. With so much at stake prize law attracted some of the greatest legal talent of the age, including John Adams

John Adams

John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...

, Joseph Story

Joseph Story

, Daniel Webster

Daniel Webster

Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...

and Richard Henry Dana, Jr.

Richard Henry Dana, Jr.

Richard Henry Dana Jr. was an American lawyer and politician from Massachusetts, a descendant of an eminent colonial family who gained renown as the author of the American classic, the memoir Two Years Before the Mast...

author of Two Years Before the Mast
Two Years Before the Mast
Two Years Before the Mast is a book by the American author Richard Henry Dana, Jr., published in 1840, having been written after a two-year sea voyage starting in 1834. A film adaptation under the same name was released in 1946.- Background :...

.

Prize cases were among the most complex of the time, as the disposition of vast sums turned on the fluid Law of Nations, and difficult questions of jurisdiction and precedent. One of the earliest U.S. cases for instance, that of the Active, took fully 30 years to resolve "who's in charge?" jurisdictional disputes between state and federal authorities. A captured American privateer captain, 20-year-old Gideon Olmsted, shipped aboard the British sloop Active in Jamaica as an ordinary hand in an effort to get home. Olmsted organized a mutiny, commandeered the sloop, but on its way to America a Pennsylvania privateer took the Active. Olmsted and the privateer disputed ownership of the prize, and in November 1778 a Philadelphia prize court jury came to a split verdict awarding each a share. Olmsted with the assistance of then American General Benedict Arnold

Benedict Arnold

Benedict Arnold V was a general during the American Revolutionary War. He began the war in the Continental Army but later defected to the British Army. While a general on the American side, he obtained command of the fort at West Point, New York, and plotted to surrender it to the British forces...

appealed to the Continental Congress

Continental Congress

The Continental Congress was a convention of delegates called together from the Thirteen Colonies that became the governing body of the United States during the American Revolution....

Prize Committee, which reversed the Philadelphia jury verdict and awarded the whole prize to Olmsted. But Pennsylvania authorities refused to enforce the decision, asserting the Continental Congress could not intrude on a state prize court jury verdict. Olmsted doggedly pursued the case for decades until he won, in a U.S. Supreme Court case in 1809 which Justice Stanley Matthews later called "the first case in which the supremacy of the Constitution was enforced by judicial tribunals against the assertion of state authority."

Commission

Although Letters of Marque and Reprisal

Letter of marque

In the days of fighting sail, a Letter of Marque and Reprisal was a government licence authorizing a person to attack and capture enemy vessels, and bring them before admiralty courts for condemnation and sale...

sometimes issued before a formal declaration of war, as happened during the American Revolution when the rebelling colonies of Massachusetts, Maryland, Virginia, and Pennsylvania all commenced granting Letters of Marque months before the Continental Congress's official Declaration of Independence

Declaration of independence

A declaration of independence is an assertion of the independence of an aspiring state or states. Such places are usually declared from part or all of the territory of another nation or failed nation, or are breakaway territories from within the larger state...

of July 1776, by the turn of the 19th century it was generally accepted that a sovereign government first had to declare war. The "existence of war between nations terminates all legal commercial intercourse between their citizens or subjects," wrote Francis Upton in Maritime Warfare and Prize, since "[t]rade and commerce presuppose the existence of civil contracts . . . and recourse to judicial tribunals; and this is necessarily incompatible with a state of war." Indeed each citizen of a nation "is at war with every citizen of the enemy," which imposes a "duty, on every citizen, to attack the enemy and seize his property, though by established custom, this right is restricted to such only, as are the commissioned instruments of the government. . . . "

The formal commission bestowed upon a naval vessel, and the Letter of Marque and Reprisal granted to private merchant vessels converting them into naval auxiliaries, qualified them to take enemy property as the armed hands of their sovereign, and to share in the proceeds.

Capturing a prize

When a privateer or naval vessel spotted a tempting vessel—whatever flag she flew or often enough flying none at all—they gave chase. Sailing under false colors was a common ruse, both for predator and prey. The convention was a vessel must hoist her true colors before firing the first cannon. Firing under a false flag could cost dearly in prize court proceedings, even result in restitution to the captured vessel's owner.

Often a single cannon shot across the bow was enough to persuade the prey to heave-to, but sometimes brutal hours and even days of cannonading ensued, along with boarding and hand-to-hand fighting with cutlasses, pistols, and boarding pikes. No matter how furious and bloody the battle, once it was over the victors had to collect themselves, put aside anger and exercise forbearance, treating captives with courtesy and civility to the degree prudence allowed. Officers restrained the crew to prevent pillaging defeated adversaries, or pilfering the cargo known as breaking bulk. Francis Upton's treatise on Maritime Warfare cautioned:

Embezzlements of the cargo seized, or acts personally violent, or injuries perpetrated upon the captured crew, or improperly separating them from the prize-vessel, or not producing them for examination before the prize-court, or other torts injurious to the rights and health of the prisoners, may render the arrest of the vessel or cargo, as prize, defeasible, and also subject the tort feasor for damages therefore.

Taking the prize before a prize court might be impractical for any number of reasons like bad weather, shortage of prize crew, dwindling water and provisions, or the proximity of an overpowering enemy force, in which case a vessel might be ransomed. That is, instead of destroying her on the spot as was their prerogative, the privateer or naval officer would accept an I.O.U. for an agreed sum as ransom from the ship's master. On land this would be extortion

Extortion

Extortion is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person, entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime...

and the promise to pay unenforceable in court, but at sea it was accepted practice and the I.O.U.'s negotiable instruments.

On occasion a seized vessel would be released to ferry home prisoners, a practice which Lord Stowell said "in the consideration of humanity and policy" Admiralty Courts must protect with the utmost attention. While on her mission as a cartel ship she was immune to recapture so long as she proceeded directly on her errand, promptly returned, and did not engage in trading in the meantime.

Usually, however, the captor put aboard a prize crew to sail a captured vessel to the nearest port of their own or an allied country, where a prize court could adjudicate the prize. If while sailing en route a friendly vessel re-captured the prize, called a rescue, the right of postliminium declared title to the rescued prize restored to its prior owners. That is, the ship did not become a prize of the recapturing vessel. However, the rescuers were entitled to compensation for salvage

Marine salvage

Marine salvage is the process of rescuing a ship, its cargo, or other property from peril. Salvage encompasses rescue towing, refloating a sunken or grounded vessel, or patching or repairing a ship...

, just as if they had rescued a crippled vessel from sinking at sea.

Admiralty Court process

The prize that made it back to the capturing vessel's country or that of an ally which had authorized prize proceedings would be sued in Admiralty Court in rem meaning "against the thing," against the vessel itself. For this reason decisions in prize cases bear the name of the vessel, such as The Rapid (a U.S. Supreme Court case holding goods bought before hostilities commenced nonetheless become contraband after war is declared) or The Elsebe (Lord Stowell holding that Prize Courts enforce rights under the Law of Nations rather than merely the law of their home country). A proper prize court condemnation was absolutely requisite to convey clear title to a vessel and its cargo to the new owners and settle the matter. "Even after four years' possession, and the performance of several voyages, the title to the property is not changed without sentence of condemnation," says Upton's treatise.

The agent of the privateer or naval officer brought a libel, accusing the captured vessel of belonging to the enemy, or carrying enemy cargo, or running a blockade. Prize commissioners took custody of the vessel and its cargo, and gathered the ship's papers, charts, and other documents. They had a special duty to notify the prize court of perishable property, to be sold promptly to prevent spoilage and the proceeds held for whoever prevailed in the prize proceeding.

The commissioners took testimony from witnesses on standard form written interrogatories

Interrogatories

In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...

. Admiralty Courts rarely heard live testimony. The commissioners' interrogatories sought to establish the relative size, speed, and force of the vessels, what signals were exchanged and what fighting ensued, the location of the capture, the state of the weather and "the degree of light or darkness," and what other vessels were in sight. That was because naval prize law gave assisting vessels, defined as those that were "in signal distance" at the time, a share of the proceeds. The written interrogatories and ship's papers established the nationality of the prize and her crew, and the origin and destination of the cargo: the vessel was said to be "confiscated out of her own mouth."

One considerable difference between prize law and ordinary Anglo-American criminal law is the reversal of the normal onus probandi or burden of proof. While in criminal courts a defendant is innocent until proven guilty, in prize court a vessel is guilty unless proven innocent. Prize captors need show only "reasonable suspicion" that the property is subject to condemnation; the owner bears the burden of proving the contrary.

If all is in order, the prize court orders the vessel and its cargo condemned and sold at auction. But the court's decision becomes vastly more complicated in the case of neutral vessels, or a neutral nation's cargo carried on an enemy vessel. Different countries treated these situations differently. By the close of the 18th century, Russia, Scandinavia, France, and the United States had taken the position that "free ships make free goods": that is, cargo on a neutral ship could not be condemned as a prize. But Britain asserted the opposite, that an enemy's goods on a neutral vessel, or neutral goods on an enemy vessel, may be taken, a position which has prevailed in modern practice. Donald Petrie observed in The Prize Game: "The ingenuity of belligerents in evading the penalties of the law of nations through pretended neutrality, false papers, quick title transfers, and a myriad of other devices, make up the principal business of the prize courts during the last century of fighting sail."

Neutral vessels could be subject to capture, if they ran a blockade. The blockade had to be effective to be cognizable in a prize court, that is, not merely declared but actually enforced. Neutrals had to be warned of it. If so then any ships running the blockade of whatever flag were subject to capture and condemnation. However passengers and crew aboard the blockade runners were not to be treated as prisoners of war, as Upton's Maritime Warfare and Prize enjoins: "the penalty, and the sole penalty . . . is the forfeiture of the property employed in [blockade running]." Persons aboard blockade runners could only be temporarily detained as witnesses, and after testifying, immediately released.

The legitimacy of an adjudication depended on regular and just proceedings, and departures from internationally accepted standards of fairness risked ongoing litigation by disgruntled shipowners and their insurers, often protracted for decades. For example, during America's Quasi-War

Quasi-War

with France of the 1790s, corrupt French Caribbean prize courts (often sharing in the proceeds) resorted to pretexts and subterfuges to justify condemning neutral American vessels. They condemned one for carrying alleged English contraband because the compass in the binnacle showed an English brand; another because the pots and pans in the galley were of English manufacture. Outraged U.S. shipowners and their descendants continually challenged these French colonial kangaroo court

Kangaroo court

A kangaroo court is "a mock court in which the principles of law and justice are disregarded or perverted".The outcome of a trial by kangaroo court is essentially determined in advance, usually for the purpose of ensuring conviction, either by going through the motions of manipulated procedure or...

decisions of the 1790s, litigation called the French Spoliation Cases which lasted well over a century, until 1915. Together with Indian tribal claims for 18th century treaty breaches, the French Spoliation Cases enjoy the dubious distinction of figuring among the longest-litigated claims in U.S. history.

End of privateering and the decline of naval prizes

Privateering came to an end in the mid-19th Century, when signatories to the Paris Declaration Respecting Maritime Law of 1856 at the conclusion of the Crimean War

Crimean War

The Crimean War was a conflict fought between the Russian Empire and an alliance of the French Empire, the British Empire, the Ottoman Empire, and the Kingdom of Sardinia. The war was part of a long-running contest between the major European powers for influence over territories of the declining...

renounced granting Letters of Marque. The United States however, was not a signatory. During the American Civil War

American Civil War

, Confederate privateer

Confederate privateer

The Confederate privateers were privately owned ships that were authorized by the government of the Confederate States of America to attack the shipping of the United States...

s cruised against Union merchant shipping. Likewise the Union (though refusing to recognize the legitimacy of Confederate Letters of Marque) allowed its Navy to take Confederate vessels as prizes. Under US Constitution Article 1 Section 8, it is still theoretically possible for Congress to authorize Letters of Marque, but in the last 150 years it has not done so.

Commerce raiding by private vessels ended with the American Civil War, but Navy officers remained eligible for prize money a little while longer. The United States continued paying prizes to naval officers in the Spanish-American War

Spanish-American War

The Spanish–American War was a conflict in 1898 between Spain and the United States, effectively the result of American intervention in the ongoing Cuban War of Independence...

, and only abjured the practice by statute during World War I. The U.S. prize courts adjudicated no cases resulting from its own takings in either World War I or World War II (although the Supreme Court did rule on a German prize - the Appam - that was brought to and held at Hampton Roads). Likewise Russia, Portugal, Germany, Japan, China, Romania, and France followed the United States in World War I, declaring they would no longer pay prize money to naval officers. On November 9, 1914, the British and French governments signed an agreement establishing government jurisdiction over prizes captured by either of them. The Russian government acceded to this agreement on March 5, 1915, and the Italian government followed suit on January 15, 1917.

Shortly before World War II France passed a law which allowed for taking prizes, as did Holland and Norway, a prospect to which the Nazi invasion quickly put an end. Britain formally ended the eligibility of naval officers to share in prize money in 1948.

Under contemporary international law and treaties, nations may still bring enemy vessels before their prize courts, to be condemned and sold. But no nation now offers a share to the officers or crew who risked their lives in the capture. Petrie's book The Prize Game observes:

Self-interest was the driving force that compelled men of the sea to accept the international law of prize . . . [including merchants] because it brought a valuable element of certainty to their dealings. If the rules were clear and universal, they could ship their goods abroad in wartime, after first buying insurance against known risks. . . . On the other side of the table, those purchasing vessels and cargoes from prize courts had the comfort of knowing that what they bought was really theirs. The doctrine and practice of maritime prize was widely adhered to for four centuries, among a multitude of sovereign nations, because adhering to it was in the material interest of their navies, their privateersmen, their merchants and bankers, and their sovereigns. Diplomats and international lawyers who struggle in this world to achieve a universal rule of law may well ponder on this lesson. --Donald A. Petrie, The Prize Game, p. 145-46.

History and sources of prize law

Commission

Capturing a prize

Admiralty Court process

End of privateering and the decline of naval prizes

See also