Schacht v Otter and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 23 February 1855 |
| Date | 23 February 1855 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 255
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
See Phillimore, Inter. Law, vol. 3, 2nd ed. PP. 478, 649, 720, 757; and Prize Rules, Oct. 20, 1898 (Stat. R. and O. 1898, p. 905, No. 1063), and July 18, 1899 (ib. PP. 1124-1268, No. 570); and tit, Prize in Pulling's Index to Stat. R. and O., 3rd ed. 1899. On point as to Damages and Costs on Restitution, followed in The Aline v. Fanny, 1856, 10 Moo. P.C. 491.
[150] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF -1 ENGLAND. THEODOR HEINRICH GUSTAF SCHACHT,-Appellant; HENRY CHARLES OTTER and FRANCIS HART DYKE,-Respondents * [Feb. 19 and 23, 1855]. the " ostsee." Restitution of a ship seized as a prize may be attended, according to the circumstances of the case, with any one of the following consequences [9 Moo. 156, 157]: First. The claimants may be ordered to pay to the captors their costs and expenses. Second. The restitution may be simple restitution, without costs, or expenses, or damages, to either party, or Third. The captors may be ordered to pay costs and damages to the claimant. General principles applicable to condemnation of captors in costs and damages [9 Moo. P.C. 157]. Costs and damages, when decreed against the captors, are not inflicted as a punishment on the captors, but as affording compensation to the injured party [9 Moo. P.C. 163]. In order to exempt captors from costs and damages in case of restitution, there must be some circumstances connected with the ship or cargo affording reasonable ground for belief that the ship or cargo might prove a lawful prize [9 Moo. P.C. 162]. What amounts to such a probable cause as to justify a capture incapable of definition, and is to be regulated by the peculiar circumstances of each case [9 Moo. P.C. 162]. It is not necessary to prove vexatious conduct on the part of the captors to subject them to condemnation in costs and damages [9 Moo. P.C. 163]. Neither will honest mistake, though occasioned by an act of Government, relieve the captors from liability to compensate a neutral for damage which the captors by their conduct have caused the neutral to sustain [9 Moo P C 163, 164, 168]. A neutral ship was captured in the Gulf of Finland by one of Her Majesty's ships of war, for breach of the blockade of Cronstadt, when no such blockade existed, and sent to England for adjudication as a prize: Held (reversin - the sentence of the Admiralty Court), that the owners of such ship and cargo were entitled to restitution, with costs and damages, as the seizure was made without probable or reasonable cause. * Present: The Lord President of the Council (Earl Granville), the Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Patteson, and the Right Hon. Sir John Dodson. 255 IX MOORE, 151 SCHACHT V. OTTER-OSTSEE (THE) [1855J The question raised by this appeal was, whether the owners of the Ostsee anc cargo on board, [151] were entitled, upon the sentence of the High Court of Admiralty decreeing restitution of the ship and cargo captured as a prize, for a breach of the blockade of Cronstadt, by Her Majesty's ship Alban, to costs and damages from the captors. The seizure and detention being admitted to be without sufficient grounds for condemnation, the captor consented to the restitution of the ship and cargo. The sentence of the Admiralty Court was founded upon that consent. The facts of the case were these: - The Ostsee, under Mecklenburg colours, took on board at Cronstadt, in the mouth of May, 1854, a cargo of wheat, and sailed therefrom on the 28th of the same month, bound to Elsinore for orders, and, in the prosecution of such voyage, was captured on the 1st of June, in the Gulf of Finland, about twenty-four miles from Dagerort, by Her Majesty's ship Alban, Henry Charles Otter, Commander, as for a breach of the blockade of Cronstadt, and sent to England for adjudication as a prize. Proceedings were instituted in July, 1854, against the ship and cargo, in the High Court of Admiralty, when a claim was put in by the Appellant on behalf of the owners of the ship and cargo. It appeared, however, that the blockade was not imposed upon Cronstadt until after the capture; and, consequently, the Queen's Proctor, on the 2nd of August, offered to consent to the restitution of the ship and cargo, on payment of the captor's expenses. No answer was given to this [152] offer, until the 10th of August, when the claimant rejected it. The cause came on for hearing in the Admiralty Court on the 19th of August, when the claimant prayed the restitution of the ship and cargo, and that the captors might be condemned in costs and damages. The captors consented to restitution of the ship and cargo, but submitted that it ought to be without costs and damages. The Judge of the Admiralty Court (the Eight Hon. Dr. Lushington) admitted the claim for the ship and cargo, and decreed the same to be restored to the claimant for the use of the owners, but without costs and damages. In giving judgment, the learned Judge observed, that " During the seventeen years that Lord Stowell presided in this Court, and administered the law of nations with regard to war, I believe that out of the many thousand ships and cargoes brought before him, he condemned the captors in costs and damages in only about ten or a dozen cases,-not one in a thousand, and Lord Stowell also, as I right well remember, laid it down, that he would not condemn the captors in costs and damages, upoi. evidence given before him, without giving them the opportunity of justifying ilieir conduct, and stating, if they thought fit, the grounds on which they made the capture. In my own recollection there are only three cases of restitution with costs and damages. I am well aware that where a seizure has been made without ostensible cause or reason, justice requires that the persons making the seizure should make good to the party the loss that may have been occasioned by the capture ; at the same time, I am of opinion, that this is the extremity of the law of nations, which ought not to be adopted except in cases which imperatively re-[153]-quire the Court so to do. Without venturing any opinion as to what may be the duty of the Court in cases that may come before it, looking at the confusion that has arisen respecting this blockade, and the difficulty Commanders of Her Majesty's vessels have in forming their own opinion, and seeing that consent has been given for the restitution of this ship and her cargo, I think I should be going too far in condemning the captors in costs and damages, and I decline so to do." From so much of this sentence as refused costs and damages to the claimant, the present appeal was brought, and the Appellant prayed that that portion of the sentence appealed from might be reversed, the principal cause retained, anc! that the damages and costs sustained by the owners of the Ostsee, and her cargo, by reason of her capture and detention, be pronounced for, and that the Respondent, Otter, the captor of the ship and cargo, might be condemned in the damages and costs, and also in the costs incurred by the Appellant, as well in the Appellate Court as in the Court below, by reason, that the seizure and detention of the Ostsee, for the presumed breach of a blockade, which was not imposed until nearly a month 256 SCHACHT V. OTTER OSTSEE (iHK) [1855] IX MOOEE, 164 after, were unjustifiable; and that the same were not occasioned by, and was not imputable to, any misconduct of any description on the part of the Ostsee. The appeal was argued by Dr. Addams and Dr. Twiss for the Appellant, and The Queen's Advocate (Sir John Harding) and Dr. Bayford for the Respondents. [154] For the Appellant it was contended, that the general principle recognised in Prize Courts, was to grant compensation to claimants upon restoration of the ship and cargo when wrong had been done; whether the original seizure was justifiable or not, if the captors were guilty of malfeazance or non-feazance, and they submitted, that as the seizure in this case was without probable cause, as it was not in dispute that the Ostsee was captured for a breach of a blockade, which had no existence until nearly a month after the seizure, the Appellant was entitled, ex debito justitiae, not only to simple restitution, but to restitution with costs and damages. The following authorities were referred to by them, as instances where costs and damages had been allowed on restitution, Story " On Prize Courts," pp. 35, 39, 112 (Pratt's Edition), The William (6 Rob. 316), The Washington (6 Rob. 275), The Acteon (2 Dod. 48), The Hend/rick and Jacob (cited in The Betsey, 1 Rob. 97), The Triton (4 Rob. 78), The Nemesis (Edwards, 50). The WUhelmsberg (5 Rob. 144), The Cornei Maritino (1 Rob. 287), The Driver (5 Rob. 145), The Anna (5 Rob. 373), The Neustra Senora de Los Doleres (Edwards, 60), The Saint Juan Baptistu (5 Rob. 33, 41), The Elise (1 Spinks, Adm. Pr. Cas. 88), Lindo v. Rodney (note to Lt Caux v. Eden, 1 Doug. 612), Le Caux v. Eden (1 Doug. 594), and they further submitted, that even if the captors had acted bona fide and been guilty of no misconduct, and the neutral had been wronged, he was still to be compensated by [155] the captors ; the payment of which was a question resting between the Government and the captors, The. San Juan Nepomuceno (1 Hagg. 265), The Zacheman (5 Rob. 152) : and that the fact of the Captain Otter, having acted under orders of his superior in command did not exonerate him from responsibility, The Mentor (1 Rob. 183), The Eleanor (2 Wheat. Amr. Rep. 346). The Respondent's counsel distinguished the cases cited by the Appellant, where costs and damages had been allowed, from the Ostsee, submitting that they were either cases of capture by privateers, or of improper conduct on the part of King's ships, and they...
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