The "Gauntlet."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 20 February 1872 |
| Date | 20 February 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 373
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY.
Mews' Dig. tit. War; 2. Foreign Enlistment, a.; 3. Prize of War; a. Rights as to. S.C. L.R. 4 P.C. 184; 41 L.J. Adm. 65; 26 L.T. 45; 20 W.R. 497; and below, L.R. 3 Ad. and E. 381. See Palmer v. Hutchinson, 1881, 6 App. Cas. 625.
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. FRANCIS HART DYKE, esq., Her Majesty's Procurator-General, on behalf of Our Sovereign Lady the Queen-Appellant; HENRY WILLIAM ELLIOTT, and the Owners of the Steam-Tug or Vessel " Gauntlet,"-Respondents * [Feb. 8 and 9, 1872]. the " gauntlet." A French Ship of War captured in the English Channel a Prussian Ship as prize of war. A prize crew under a French naval Officer was put on board. The prize Ship being driven by stress of weather into the Downs, anchored within British waters, and, after lying there two days, the French Consul at Dover engaged an English Steam-tug, then lying in the Downs, to tow the captured Ship from British waters to a port of the Captors, and under such agreement the Tug towed the prize to Dunkirk Roads. In a suit instituted on behalf of the Crown for condemnation of the Tug for violation of the Foreign Enlistment Act of 1870 (33rd and 34th Viet. c. 90), the Judge of the Court of Admiralty held, that no offence had been committed under that Statute, as the Steam-tug was not employed in the military or naval service of France, as declared by the 8th section of the Act, and dismissed the suit, condemning the Crown in costs. On appeal, held, by the Judicial Committee (reversing such decree), that the engagement by the Owners of the Tug for the express purpose of towing the detached prize crew, its Prisoners and prize Vessel, speedily and safely to French waters, where the Prisoners and prize would be taken charge of by the French authorities, and the prize crew set free, was despatching a Ship, within the meaning of Sect. 8 of the Foreign Enlistment Act of 1870, for the purpose of taking part in the naval service of a belligerent, and condemned the Tug as a forfeiture to the Crown. Whether a Court of Admiralty has power, under the Foreign Enlistment Act, 1870, to condemn the Crown in costs, Quaere, The appeal in this case was brought from a decree of the High Court of Admiralty in a cause instituted [429] under the provisions of the Foreign Enlistment Act, 1870, by the Appellant against the British Steam-tug the Gauntlet, her tackle, apparel, and furniture, and against all persons in general having any right, title, or interest in the Steam-tug, her tackle, apparel, and furniture. The Gauntlet had been previously arrested at the instance of the Crown, and released on bail. The Appellant, by his petition, alleged that on the 24th of November, 1870, the Prussian Ship Lord Brougham, of the port of Hamburg, having been then lately * Present:-Sir James William Colvile, the Lord Justice James, the Lord Justice Mellish, and Sir Montague Edward Smith. 373 VIII MOORE N.S., 430 DYKE V. ELLIOTT-GAUNTLET (the) [1872] captured and taken on the high Seas by a French Vessel of war, as a prize of war, arrived and was anchored in the Downs, within three marine miles of the coast of England, being in the possession of the Government of France, and in charge of a French prize crew. That on the same day an agreement was entered into between Mumford, one of the Respondents, and M. Le Sauret, the French Consul at Folkestone, whereby in. consideration of a sum of money to be paid by the French, Consul-[430]-General in London, on behalf of the French Government, to the Owners of the Gauntlet, Mumford agreed to despatch the Steam-tug Gauntlet, in order, or with the intent, that the Steam-tug, with knowledge, or with reasonable cause to believe, that she would be employed in the naval service of France, in towing the Lord Brougham from the place where she then was in charge of a French prize crew as such prize of war to the port of Dunkirk, in France. That on the 26th of November, and following days, Mumford did, in pursuance of such agreement, and without the license of Her Majesty, despatch, or cause, or allow to be despatched, the Steam-tug Gauntlet with the intent hereinbefore alleged; and that the Steam-tug Gauntlet, then being in charge of the servants of the Eespondents, without the license of Her Majesty was employed in the naval service of France in towing, and did tow, the Ship Lord Brougham, then being in charge of a prize crew, as a prize of war, from within three marine miles of the shore of England to the port of Dunkirk. That during the times aforesaid France was a State at War with Prussia, and Prussia was a State at peace with Her Majesty, which latter facts were well known to the Respondents ; and it was submitted, that by reason of the premises the Steam-tug and her equipment had, under the provisions of the Foreign Enlistment Act, 1870, become forfeited to Her Majesty. The Respondents, by their answer, denied the truth of the averments contained in the petition, and alleged that the Gauntlet was a...
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