Order in council respecting fishing voyages from and to ports from which the British flag is excluded application of. JUDGMENT. SIR WILLIAM SCOTT. - This is the case of a Hamburg vessel which had sailed from that port on a fishing voyage, and was cap tured on her return. Now, clearly, by the present policy of this country, it is not permitted to a Hamburg ship to sail from that port on a whaling voyage, and to return again to Hamburg, because that is a voyage which is expressly prohibited by the order which his Majesty has recently issued. His Majesty is there pleased to direct 2 "that all vessels which have cleared out from any port so far under the control of France or her allies, as that British ships may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning, or destined to return, either to the port from whence they cleared, or to any other port or place to which the British flag may not freely trade, shall be captured, and condemned, together with their stores and cargoes, as prize to the captors." So that now, certainly, such a voyage, under such circumstances, would be illegal, though the ship were entirely Hamburg property, without any intermixture of other interests. But it appears by this same order, that before it was issued, this voyage was not illegal, and therefore an exception is made, directing that all vessels "which shall have sailed on their present voyage previous to notice of this order, or reasonable time for the notice thereof, shall be permitted to return to [276] their own port without molestation on account of any thing contained in this order, provided they shall not have continued on their fishery as aforesaid, more than twenty-one days after due warning of this order received at sea." And then it goes on to direct, that "the warning shall be indorsed on the ship's papers." In the present instance no such warning had been given, and therefore this is a vessel which, it is declared by the order itself, "shall 1 [Affirmed on appeal, but expenses of claimant of ship pronounced a charge on the cargo.] 2 See Appendix L. The Johan. Edw. Con be permitted to return to her own port without molestation." demnation has, however, been pressed against this vessel upon another ground; it has been suggested, that there is an appearance of Danish interest in the property, and the case has been assimilated to a class of vessels which came before the court some years ago, which were employed in the Dutch whale fishery. But in those cases the ships continued under the management of the former Dutch owners; they were fitted out in the same ports, and employed in the same occupation as before; there was nothing, in short, to distinguish them from the aspect they originally bore, except a formal piece of parchment which had passed between the parties. The court, therefore, held, that the Dutch character still attached to them, whatever might be the national character of the persons to whom they had been transferred. In this case, on the contrary, there is not any ground for the suggested connection with Denmark, except what arises from the contiguity of Hamburg to Altona; but if this, in all its circumstances, appears to be fair Hamburg traffic, in which the merchants of that place were as likely to embark themselves, on their own account, as the merchants of Denmark, I cannot infer Danish interests from mere contiguity. I cannot, on account of any such suspicion, permit the whole commerce of that unfor- [* 277 ] tunate city to be interrupted and destroyed. Show me a case in which Danish interests are really interwoven in the property, and there the ostensible Hamburg character shall not protect the vessel; but in this case I do not see any thing on which I can build such a presumption. There were two papers on board this vessel, which have also been made the foundation of an argument. One is a certificate, or Danish pass, purporting that there are no Danish subjects on board. It may be the policy of Denmark, when her own sailors are wanted for the public service, to require that they shall not navigate foreign vessels; but a Hamburg vessel does not become a Danish vessel merely because she accepts a certificate to that effect. The other paper is of more consequence, as it is a permission from the Danish embassy at Hamburg for the ship, to this effect, that "the voyage is undertaken with the permission of the proper authorities, as well as of the imperial French authorities; and that no objection exists to her going out of the Elbe." Now it has been said that this incorporates the vessel in the policy of Denmark, and gives her a Danish character; but to me it does not appear to operate to any such effect. What is the purport of it? That the ship is perfectly neutral, and that the voyage does not interfere with the policy of Denmark or of France, with respect to the commerce of other states. It no more constitutes this a Danish vessel than this order 17 EDW. The Johan. Edw. in council, if it had been on board, would have constituted her an English vessel. Then, what are the other objections? The master states, that, "on this voyage he had not sailed to any port or place except Greenland;" and it is argued that, as Greenland is [* 278] a Danish settlement, *if he went there to trade, it would be a trading between Hamburg and Denmark, which is prohibited. But the whales which compose the cargo of this vessel were not taken from the shore; they were caught at sea, on the fishery; and every one knows that, in popular language, a voyage to Greenland is a voyage to the Greenland seas, and not to any place that can be considered as a port of trade. I think it is extremely questionable whether the Danes have any establishment there at all; if they have, it is not likely to consist of any thing more than a few store-houses for the use of vessels employed in the fishery. Then again it is said, that this vessel was proceeding to Heligoland, on her return, in violation of the order in council, prohibiting the entrance of foreign vessels into that port. But the ship, it is perfectly clear, was not going there with any intention of entering " the port or harbor;" her object was merely to touch there, in order, as the master states, "to obtain information whether he might proceed direct to Hamburg without touching at a port in England." The parties appear to have been extremely anxious throughout to conform to the regulations of this country. With this clear proof of a destination to Hamburg, it cannot be supposed that any part of her cargo was to be deposited at Heligoland, or that there was any intention of violating the order in council. If the fact be that there is danger of an intermixture of Danish interests in this trade, it must be prohibited by a specific regulation, and that is now done by the order of the 9th May;1 but as this vessel sailed from Hamburg before that order in council was issued, the voyage was open to her, and I shall, therefore, restore the ship and cargo, allowing the captors their expenses. 1 See Appendix M. SIR WILLIAM SCOTT. This is the case of a Spanish ship, which was recaptured, after being more than twenty-four hours in possession of the enemy. An extract from the Cadiz Commercial Gazette,1 dated 5th September, 1809, has been produced by the claimants, referring to an article of a treaty between that country and the English Government, by which it would appear that the vessels of the respective countries were, in future, to be restored on salvage, although the treaty itself has not yet been promulged. I can have no doubt, from the manner in which the fact is announced in the official gazette of Spain, that the article was to take effect from that time. I shall, therefore, in this case, decree restitution to the Spanish claimants, on payment of a salvage of one eighth, and shall apply the same rule in the other cases, if they come within the same limit of time, unless the captors are able to procure evidence sufficient to repel the presumption arising upon what is here furnished by the claimants. LA GLOIRE, and three others. [*280 ] April 4, 1810. Head-money limited to the actual captors. JUDGMENT. SIR WILLIAM SCOTT. The present question arises on the admissibility of this allegation, which is offered to the court on behalf of several ships composing a part of the squadron by which these French. frigates were captured, and claiming, upon the principle of associated service, to share in the head-money. I shall not repeat the complaint 1 See Appendix N. La Gloire, and three others. Edw. which I have already had occasion to make, that this suit has been long depending, although it is of a nature which, in a peculiar degree, requires to be brought to its termination with the greatest expedition. Head-money, according to the principle which is recognized in this and the superior court, is the peculiar and appropriate reward of immediate personal exertion, and, consequently, wherever any claim to participate in a bounty so appropriated has been advanced, it has always been considered in a more rigid manner by the courts than those which arise out of the general interests of prize. There are some very ancient cases in which the question has been decided ;1 in the case of The Suberbe; in the case of The Duchess Anne; and also in the case of The Toulouse, in which it appears by a note of that judgment, communicated to me by a very eminent person of great experience, and of the longest practice in these courts, that the prize was condemned to one man of war, as actual captor, and to two others as assisting at the capture: but the bounty-money was ordered to be paid only to the actual captor, the others not [281] being actually engaged with the prize. This is the invari able rule which, for more than a century, has been applied to cases of this description, and, therefore, the circumstances must be of a very peculiar nature to induce the court to recede from a practice so long and so universally established. As to three of the ships, The Achille, The Windsor Castle, and The Polyphemus, I need only read the sixth article, which recites the grounds of their respective claims, in order to dispose of them. It says, "that during the general chase the enemy's ships, L'Infatigable, L'Armide, and La Minerve, ran a distance of eighty-eight miles, and La Gloire a distance of about one hundred and eight miles, before they were captured; and The Centaur, Mars, Monarch, and Revenge, by outsailing the other ships of the squadron, were enabled to effect the captures in question. without any direct aid of any of the rest of the squadron, consisting of The Windsor Castle, Polyphemus, and L'Achille, neither of them being within gunshot of any of the enemy's ships, either before or when they struck. But they were all in sight and in chase: every exertion was used to get up with the enemy; the chase was a general one; the said captures were the result of a joint coöperation of an associated fleet, the whole of whom assisted in exchanging the pri soners, and afterwards in bringing the said prizes safe into port.” Now it is clear that all these circumstances, taken separately or collectively are not such as will bring these ships within the established 1 Superbe, June 26, 1710; Duchess Anne, July 6, 1710; Toulouse, June 13, 1715. |