§ 21
equitable application by the Alien Prop-
erty Custodian of vested property to pay-
ment of an alien debtor's debts, and for
pro rata payment if the available money
is insufficient for satisfaction of all
claims, 17 indicates an intention to deprive
attachment liens of any priority. 18
§ 22 Return or recovery of property
or proceeds
Research References
West's Key Number Digest, War and National
Emergency e=>1043, 1051, 1053
The Trading with the Enemy Act grants to
certain persons judicial and administrative
remedies for return of property of foreign
nationals seized under the Act.
In providing for the seizure of property
of aliens under the Trading with the
Enemy Act, 1 Congress did not intend to
confiscate the property of citizens or alien
17
50 App. U.S.C.A. § 34(a), (d), (f).
18
U.S.-Orvis v. McGrath, 198 F.2d 708 (2d
Cir. 1952), judgment affd, 345 U.S. 183, 73 S. Ct.
596, 97 L. Ed. 938 (1953).
[Section 22]
1 when such laws were abrogated, are permitted by
50 App. U.S.C.A. §§ 1 to 44.
2
U.S.-Becker Steel Co. of America v.
Cummings, 296 U.S. 74, 56 S. Ct. 15, 80 L. Ed. 54
(1935).
As to the seizure of enemy property under
the Trading with the Enemy Act, generally, see
§ 19.
3
50 App. U.S.C.A. § 9.
4 Hungarian, and Rumanian nationals, see § 17.
U.S.-Societe Internationale Pour Participa-
tions Industrielles Et Commerciales, S. A. v.
Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d
1255 (1958); McGrath v. Zander, 177 F.2d 649 (D.C.
Cir. 1949).
5
U.S.-Dames & Moore v. Regan, 453 U.S.
654, 101 S. Ct. 2972,69 L. Ed. 2d 918 (1981); Unidyne
Corp. v. Government of Iran (Islamic Republic of
Iran) By and Through Imperial Iranian Navy (Navy
of the Islamic Republic of Iran), 512 F. Supp. 705
(E.D. Va. 1981); Gmo. Niehaus & Co. v. U. S., 179
Ct. Cl. 232, 373 F.2d 944 (1967).
Under International Claims Settlement
Act
Notwithstanding any provision of the Trading
38
friends. 2 A provision of the Ace
makes available to a person who is not
enemy or an ally of an enemy
judicial and administrative remedies
the return of property erroneously ·
Enemy aliens have also been p
by statute to recover some or all of
property following the termination of
war. 5 The provision of the Trading
the Enemy Act allowing for the return
property to nonenemy aliens 6 and the
vision of the Act permitting the return
property to certain "technical ene ·
and others deemed worthy of ou.,cu.u.•.u~
return of property 7 are mu
exclusive. 8 However, no return may
made pursuant to either statute unless
notice of claim is filed within the time
in the manner specified by statute. 9
The extent of the recovery is limited
that provided by the Trading with
Enemy Act. 10 Thus, a successful vU'-'C.L°CLU.OCL.t\1;
is entitled to recover the property oc;L.c.v~t·••
with the Enemy Act or the International
Settlement Act, certain former nationals of
garia, Hungary, and Rumania, who did not
full rights of citizenship as a consequence
discriminating against political, racial, or
groups between December 7, 1941, and the
provision of the International Claims '-":""~"'""""~
Act to seek the return of property vested in the
ficial or agency designated by the President of
United States under the latter Act or under
Trading with the Enemy Act.
22 U.S.C.A. § 1631o(a).
As to vesting of the property of KniP"F1ru1n,
6
50 App. U.S.C.A. § 9(a).
7
50 App. U.S.C.A. § 32(a).
Certain government(s) and their Iut.utJ•u~.
als not eligible to seek return
The goverments of Germany, Japan,
Hungary, and Rumania, as well as their H<:t'cluJ.l<:tli~,:
generally are not eligible to seek a return of
erty under the Trading with the Enemy Act.
50 App. U.S.C.A. § 32(a)(2).
8 rroneous standard of review is used
U.S.-Legerlotz v. Rogers, 266 F.2d 457
Cir. 1959).
50 A~U.S.C.A. § 33.
9
10
U.S.-Kelberine v. Societe
·oeteects derived from a sale thereof
11
1stElai:au, together with all ac-
or interest actually received
However, the recovery may not
13 or interest on cash held in
and administrative reme-
by the Trading with the
et for the return of seized prop-
tt;;L.lvLJL.U"""15 are independent and
of each other. 16 The powers with
to return of seized property are
the Alien Property Custodian. 17
exercise of those powers
and thus is subject to
review only under an arbitrary
· standard. 18
from the administrative remedy,
authorizes certain persons to
F.2d 989 (D.C. Cir. 1966); Rashap v.
145 F. Supp. 774 (E.D. N.Y. 1956),
d, 250 F.2d 794 (2d Cir. 1957).
-IJtltliPCJ'<>t" v. U.S., 121 F.2d 732 (App.
Hennig v. Rogers, 187 F. Supp.
), judgment affd, 296 F.2d 420
Halbach v. Markham, 106 F. Supp.
1952), order affd, 207 F.2d 503 (3d Cir.
::.H·"'"''l"" v. Brownell, 215 F.2d 36 (D.C.
v. McGrath, 89 F. Supp. 339 (S.D.
of review used to review admin-
a district court decision reviewing
Alien Property Custodian.
"u.<<:t~Jtull<:tl Silk Guild v. Rogers, 262
Cir. 1958).
§ 22
institute a suit in equity in specified
federal district courts against the Alien
Property Custodian or the Treasurer of
the United States, depending upon which
has custody of the property. Such a suit
may be brought to establish any interest,
right, or title which the claimant has in
money or property held by the Custodian
or the Treasurer. If the claim is estab-
lished, the court will order the payment,
conveyance, transfer, assignment, or
delivery of the money or property so held
to the claimant. 19 Such a suit provides an
exclusive judicial remedy for a person
claiming a right, title, or interest in the
vested property20 and is to be liberally
construed. 21 The administrative remedy
need not be exhausted before suit may be
19
50 App. U.S.C.A. § 9(a).
Provision inapplicable to surcharge pro-
gram on imports
U.S.-Alcan Sales, Div. of Alcan Aluminum
Corp. v. U.S., 1 Fed. Cir. (T) 11, 693 F.2d 1089
(1982).
2
0U.S.-La Due & Co. v. Rogers, 259 F.2d 905
(7th Cir. 1958); Bank Voor Handel en Scheepvaart,
N. V. v. Kennedy, 288 F.2d 375 (D.C. Cir. 1961).
Cal.-In re Hagemann's Estate, 63 Cal. 2d
131, 45 Cal. Rptr. 149, 403 P.2d 405 (1965).
Suits against subsequent transferees not
permitted
Under the Trading with the Enemy Act, the
sole remedy available under the Act to an enemy
alien is an action against the government on the
ground that the vesting order was improper.
U.S.-Schmieder v. Hall, 421 F. Supp. 1208
(S.D. N.Y. 1976), judgment affd, 545 F.2d 768 (2d
Cir. 1976).
Declaratory judgments embraced in Act
The provision of the Trading with the Enemy
Act stating that the judicial remedy provided
thereby is the sole relief available to a person seek-
ing the return of property embraces declaratory
relief. Thus, the Declaratory Judgment Act did not
give a German national a right to judicial review of
an adverse determination of his property claim.
U.S.-Schilling v. Rogers, 363 U.S. 666, 80 S.
Ct. 1288, 4 L. Ed. 2d 1478 (1960).
21
U.S.-Becker Steel Co. of America v.
Cummings, 296 U.S. 74, 56 S. Ct. 15, 80 L. Ed. 54
(1935); Brownell v. Ketcham Wire & Mfg. Co., 211
39
§ 22
brought, 22 but the filing of a notice of claim
for the return of property vested in the
Custodian is a condition precedent to
maintenance of the action. 23
§ 23 Unblocking of assets
Research References
West's Key Number Digest, War and National
Emergency <:e::=>1052
Procedures are set forth in the regulations
for the unblocking of funds and other assets
that have been frozen or blocked in the man-
ner allowed by the applicable statutes and the
regulations promulgated pursuant thereto.
A person may seek to obtain a license
from the United States Treasury to un-
block assets that have been frozen under
regulations issued pursuant to the Trad-
ing With the Enemy Act, 1 such as the
Cuban Assets Control Regulations. 2 The
person seeking an unblocking order has
the burden of showing that he or she es-
sentially is an innocent recipient of prop-
erty rights. 3 Thus, when a transaction
results in the blocking of funds at a
financial institution, pursuant to the ap-
plicable regulations pertaining to the
Department of the Treasury and the Trad-
ing with the Enemy Act, 4 and a party to
the transaction believes that the funds
F.2d 121 (9th Cir. 1954).
Wide latitude of construction required
U.S.-Guessefeldt v. McGrath, 342 U.S. 308,
72 S. Ct. 338, 96 L. Ed. 342 (1952).
22
U.S.-F a R Liquidating Corp v. Brownell,
130 F. Supp. 691 (D. Del. 1955).
Action to contest seizure allowed without
administrative challenge
Although the Trading with the Enemy Act
permits an action to be brought against the United
States to contest a seizure without first challenging
the action in an administrative proceeding, the Act
does not provide an independent cause of action for
the unblocking of assets.
U.S.-Can v. U.S., 820 F. Supp. 106 (S.D. N.Y.
1993), affd, 14 F.3d 160 (2d Cir. 1994).
23U. s .-Ladue & Co. v. Brownell, 220 F.2d 468
(7th Cir. 1955); Agajan v. Clark, 381 F.2d 937 (D.C.
Cir. 1967); Taterka v. Brownell, 143 F. Supp. 57
(S.D. N.Y. 1956).
40
CoRPUS JuRIS SEcUNDUM
have been blocked due to mistaken iden-
tity, that party may seek to have such
funds unblocked pursuant to the adminis-
trative procedures set forth by regulation. 5
Under the Cuban Assets Control Regu-
lations, specific licenses are issued to
unblocking partnerships established un-
der the laws of Cuba. Such a license may
be issued, for example, where all of the
general partners, as well as any limited
partners, have emigrated from Cuba and
have established residence in the United
States or in a country in an authorized
trade territory. 6
Exhaustion of administrative remedies
required.
The federal courts do not have subject-
matter jurisdiction over an action against
the United States under the Trading with
the Enemy Act, seeking to recover assets
which were blocked under the Act, where
the claimant fails to exhaust administra-
tive remedies by first applying to the Of-
fice of Foreign Assets Control for a license
[Section 23]
1
50 App. U.S.C.A. §§ 1 to 44.
2 Cir. 1977).
31 C.F.R. §§ 515.101 to 515.901.
Regulation consistent with Trading with
the Enemy Act
A provision of the Cuban Assets Control Regu-
lations that no transfer to any person by intestate
succession is deemed to terminate the interest of
the decedent in the property transferred, if the
decedent was a designated national, is consistent
with the Trading with the Enemy Act.
U.S.-Richardson v. Simon, 560 F.2d 500 (2d
Cir. 1977).
3
U.S.-Tagle v. Regan, 643 F.2d 1058 (5th
Cir. 1981).
4 U.S.-The Adeline, 13 U.S. 244, 3 L. Ed. 719,
31 C.F.R. §§ 501.101 et seq.
5
31 C.F.~§ 501.806.
6 1
31 C.F.R. § 515.557.
AND NATIONAL DEFENSE
review of denial of unblocking
review of a denial of an un-
license is available under the
8
+ .... ..,.+nra Procedure Act, but such
cannot be had under the section of
Trading with the Enemy Act provid-
a means through which eligible per- prescriptive and established modes by
may seek recovery of property seized which the law of nations, as applicable to
•-nuf<=,.,. that Act.
9
E. CAPTURE AT SEA AND
PRIZE
Research References
A.L.R. Library
A.L.R. Index, War
West's A.L.R. Digest, Admiralty <:e::=>24; War
and National Emergency <:e::=>1059 to 1068, constitute a capture.
1070 to 1081
1. In General
Generally
West's Key Number Digest, War and National or maritime capture of ships and cargoes
7
U.S.-Can v. U.S., 820 F. Supp. 106 (S.D.
N.Y. 1993), affd, 14 F.3d 160 (2d Cir. 1994).
Court will not order transfer in absence
of Treasury license authorizing such
U.S.-Richardson v. Simon, 420 F. Supp. 916
(E.D. N.Y. 1976), judgment affd, 560 F.2d 500 (2d
8
5 U.S.C.A. §§ 701 to 706.
Issue cannot be raised for first time in
court
On review of a decision of the Secretary of
Treasury to deny an application for a license to
unblock certain funds which had been blocked pur-
suant to the Trading with the Enemy Act, an issue
that was not raised before the Secretary could not
be raised for the first time before the district court
or on appeal.
U.S.-Tran Qui Than v. Regan, 658 F.2d 1296
(9th Cir. 1981).
~.S.-Tran Qui Than v. Regan, 658 F.2d
1296 (9th Cir. 1981).
[Section 24]
U.S.-The Betsy, 30 F. Cas. 7, No. 17750
§ 24
Emergency <:e::=>1059
In admiralty law, the term "prize" is used
to signify any goods which are the subject of
marine capture, meaning property taken at sea
from an enemy under the law of war. The title
of the captor or the captor's government is in-
choate and incomplete in that it does not vest
until condemnation by a prize court.
Capture and condemnation are the
maritime warfare, is enforced. 1 In order to
constitute a complete capture, it is neces-
sary and sufficient that there be such
conduct as to indicate on the one side a
submission or forced compliance with the
other's will and on the other side an inten-
tion to take possession of the prize. 2 No
particular form of conduct is necessary to
3
In admiralty law, the term "prize" is
used to signify any goods that are the
subject of a marine capture, 4 meaning
property taken at sea from an enemy
under the law ofwar. 5 The term is techni-
cal in nature, expressing a legal capture6
(D.S.C. 1795).
2
U.S.-Republic of China v. National Union
Fire Ins. Co. of Pittsburgh, 151 F. Supp. 211 (D.
Md. 1957), affd in part, rev'd in part on other
grounds, 254 F.2d 177 (4th Cir. 1958).
Capture not intended
U.S.-Ling v. 1,689 Tons of Coal Lying Aboard
S. S. Wilhelmina in Harbor of Seattle, 78 F. Supp.
57 (W.D. Wash. 1942).
3
U.S.-The Alexander, 12 U.S. 169, 3 L. Ed.
524, 1814 WL 2412 (1814).
4
S.C.-Groning v. The Union Ins. Co., 10
S.C.L. 537, 1 Nott & McC. 537, 1819 WL 1815
(Gonst. Ct. App. 1819).
5
U.S.-Bas v. Tingy, 4 U.S. 37, 4 Dall. 37, 4
Dall. 378, 1 L. Ed. 731, 1800 WL 3163 (1800).
Prize goods are goods taken from the
enemy on the high seas by right under the law
of war
1815 WL 1495 (1815).
SU.S.-The Resolution, 2 U.S. 1, 2 Dall. 1, 1
L. Ed. 263, 1781 WL 39 (Fed. Ct. App. 1781).
41
§ 24
effected by maritime force only. 7 Recap-
tures also are cases of prize. 8
Title of captor.
Under maritime law, capture of an
enemy's vessel confers title and owner-
ship upon the captor. 9 The captor succeeds
to the rights of the owners of both the hull
and cargo. 10 The title of the captor or of
the captor's government is inchoate 11 and
incomplete, 12 however, in that it does not
vest until condemnation by a prize court. 13
On condemnation, the transfer of title is
complete14 and relates back to the time of
capture. 15
§ 25 Property subject to capture
Research References
West's Key Number Digest, War and National
Emergency e=>1062 to 1064, 1066
Unless a recognized exemption is applicable,
an enemy vessel and cargo are subject to cap-
ture and condemnation as a maritime prize.
However, neutral property is not liable to
capture and condemnation except in well-
recognized cases.
As a general rule, an enemy vessel1 and
7
U.S.-The Siren, 80 U.S. 389, 20 L. Ed. 505,
1871 WL 14769 (1871).
SU.S.-The Adeline, 13 U.S. 244, 3 L. Ed. 719,
1815 WL 1495 (1815).
As to recaptures, see§ 34.
SU.S.-U.S. v. Steinmetz, 763 F. Supp. 1293
(D.N.J. 1991), judgment aff'd, 973 F.2d 212 (3d Cir.
1992).
10U.S.-The Appam, 243 F. 230 (S.D. N.Y.
1917).
11
U.S.-The Appam, 243 F. 230 (S.D. N.Y.
1917).
12U.S.-Oakes v. U.S., 174 U.S. 778, 19 S. Ct.
864, 43 L. Ed. 1169 (1899).
13U.S.-U.S. v. Dewey, 188 U.S. 254, 23 S. Ct.
415, 47 L. Ed. 463 (1903).
As to prize courts and procedure therein, see
§§ 30 to 46.
14U.S.-The Fair Columbian, 49 Ct. Cl. 133,
1913 WL 1301 (1913).
15U.S.-U.S. v. Dewey, 188 U.S. 254, 23 S. Ct.
415, 47 L. Ed. 463 (1903).
42
CoRPUS JuRIS SECUNDUM
cargo 2 are subject to capture and condem-
nation as maritime prize. In addition, the
vessel of a loyal citizen is subject to
capture and condemnation where it is
employed in trade with the enemy. 3 Where
a state of war does not exist, statutory
provisions with respect to prize are not
applicable. 4
Effect of place of capture.
A capture of an enemy ship within the
territorial waters of a neutral nation is
wrongful as to the neutral nation5 but not
as to the enemy. 6 Property seized or taken
upon the inland waters of the United
States by its naval forces is not a mari-
time prize. 7
Flag and documents.
The flag is the superficial evidence of
the nationality of a vessel, 8 but it is not
conclusive. A country that seizes a ship
flying a neutral flag may prove that true
ownership of the vessel was in an enemy. 9
On the other hand, under international
law, a ship flying an enemy flag will not
be permitted to show in a prize court that
[Section 25]
1 10U.S.-American Transatlantic Co. v. U. S.,
U.S.-The Appam, 243 F. 230 (S.D. N.Y.
1917); American Transatlantic Co. v. U. S., 113 Ct.
Cl. 484, 83 F. Supp. 832 (1949).
2
U.S.-The Appam, 243 F. 230 (S.D. N.Y.
1917).
3 Ct. 1158, 17 L. Ed. 568 (1864).
U.S.-The Shark, 21 F. Cas. 1167, No. 12708
(S.D. N.Y. 1862).
4
U.S.-The Omaha, 71 F. Supp. 314 (D.P.R.
1947), order aff'd in part, 168 F.2d 47 (C.C.A. 1st
Cir. 1948).
5
U.S.-The Florida, 101 U.S. 37, 25 L. Ed.
898, 1879 WL 16704 (1879); The Sir William Peel,
72 U.S. 517, 18 L. Ed. 696, 1866 WL 9402 (1866).
6
U.S.-The Adela, 73 U.S. 266, 18 L. Ed. 821,
1867 WL 11230 (1867); The Sir William Peel, 72
U.S. 517, 18 L. Ed. 696, 1866 WL 9402 (1866).
7 WL 1419 (1914).
10 U.S.C.A. § 7651(c).
SU.S.-U.S. v. El Telegrafo, 25 F. Cas. 1008,
No. 15049 (E.D. La. 1846).
SU.S.-A"iirerican Transatlantic Co. v. U. S.,
113 Ct. Cl. 484, 83 F. Supp. 832 (1949).
WAR AND NATIONAL DEFENSE § 26
its true ownership was neutral. 10 country. 21 A person who has a commercial
The absence 11 or irregularity1 2 ofpapers, domicile in an enemy country by reason of
their defacement 13 or destruction, 14 or the owning or having an interest in a house
carrying of false papers 15 justifies the of business there is within the rule. 22
capture and condemnation of the ship.
Transfer of property in anticipation of, or
Likewise, the condemnation of a cargo is
legal where the cargo was not properly
during, war.
Sales of belligerent merchant vessels or
documented. 16
cargoes to neutrals, in anticipation of or
Difference in nationality of ship and during war, are valid where a bona fide
cargo. sale for a valuable consideration is
shown. 23 There is a presumption against
A neutral cargo on an enemy vessel is
the validity of such transfers, however,
not liable to condemnation as prize. 17
However, it is presumed that property
which presumption is conclusive where,
shipped on an enemy vessel is enemy
after the alleged transfer, the former
owner retains an interest in the ship, or it
property, 18 especially where it is shipped
remains under the same management and
to an enemy port or consigned to a person
in the same course of trade as before. 24
in an enemy country. 19
Likewise, a valid transfer cannot be made
of an enemy vessel in an enemy jurisdic-
Domicile of owner.
tion,25 of a public vessel belonging to a bel-
The domicile of the owner of property ligerent nation, 26 or of an enemy vessel or
has an important bearing on its liability goods in transit. 27
to capture and condemnation. 20 The prop-
erty or interest of a person who is domi- § 26 Property subject to capture-
ciled in an enemy country is liable to
Exempt property
capture at sea notwithstanding the fact
that he or she is a subject or citizen of a Research References
neutral country or of the other belligerent West's Key Number Digest, War and National
1
SU.S.-The Buena Ventura v. U.S., 175 U.S.
113 Ct. Cl. 484, 83 F. Supp. 832 (1949). 384, 20 S. Ct. 148, 44 L. Ed. 206 (1899).
As to prize court proceedings, see §§ 30 to 20U.S.-The Flying Scud, 73 U.S. 263, 18 L.
46. Ed. 755, 1867 WL 11171 (1867).
11
21 U.S.-The Venus, 12 U.S. 253, 3 L. Ed. 553,
U.S.-U.S. v. Hallock, 154 U.S. 537, 14 S.
1814 WL 2421 (1814).
22
12 U.S.-The Cheshire, 70 U.S. 231, 18 L. Ed.
U.S.-The Water Witch, 29 F. Cas. 418, No. 175, 1865 WL 10741 (1865).
17268 (S.D. N.Y. 1862). 23U.S.-U.S. v. the Lilla, 26 F. Cas. 938, No.
13U.S.-The Circassian, 69 U.S. 135, 17 L. Ed. 15600 (C.C.D. Mass. 1863); The Mersey, 17 F. Cas.
796, 1864 WL 6633 (1864). 159, No. 9490 (C.C.S.D. N.Y. 1863).
14U.S.-The Wave, 29 F. Cas. 462, No. 17298 24
U.S.-The Benito Estenger, 176 U.S. 568, 20
(S.D. N.Y. 1862). S. Ct. 489, 44 L. Ed. 592 (1900).
15U.S.-The Scotia, 21 F. Cas. 797, No. 12514 25U.S.-The Hart, 70 U.S. 559, 18 L. Ed. 220,
(S.D. N.Y. 1862). 1865 WL 10777 (1865).
16 26U.S.-The Georgia, 10 F. Cas. 239, No. 5349
U.S.-The Sea Flower, 49 Ct. Cl. 211, 1914
(D. Mass. 1866), aff'd, 74 U.S. 32, 19 L. Ed. 122,
1868 WL 11142 (1868); The Etta, 25 F. Cas. 1025,
17
U.S.-The Atalanta, 16 U.S. 409, 4 L. Ed. No. 15060 (D.N.J. 1864).
422, 1818 WL 2416 (1818). 27
U.S.-Stohr v. Wallace, 269 F. 827 (S.D. N.Y.
18U.S.-The London Packet, 18 U.S. 132, 5 L. 1920), aff'd, 255 U.S. 239, 41 S. Ct. 293, 65 L. Ed.
Ed. 52, 1820 WL 2140 (1820). 604 (1921).
43
 § 26 CoRPus JuRIS SEcUNDUM WAR AND NATIONAL DEFENSE § 28

Emergency e:->1067 a reasonable number of days of grace. 7 enemy dispatches or other services that was clearly illegal and without reasonable or
However, some nations did not assent to distinctly identify the neutral with the probable cause. Captors have the right and
Under international law, certain classes of duty to carry their prizes to a proper and con-
vessels are exempt from capture. the Hague Convention or certain parts hostilities,.4 also may be subject to
5 venient port for adjudication.
thereof. Thus, there is no imperative and eondemnat IOn.
Under international law, certain classes well-settled rule of international law
The question of whether particular Liability for the capture of a vessel or
of vessels such as military hospital ships, 1
when delivery coastal fishing vessels innocently em- which prevents a belligerent nation, in the property is enemy or neutral in character cargo by a belligerent exists when, 1 and
completed, 2
absence of convention, from pursuing and therefore is or is not subject to capture only when, 2 the capture was clearly illegal
the commanders ployed, and other small coastal vessels whatever policy it deems best concerning and condemnation may depend on its ori-
of "war vessels" employed in local trade 3 are exempt from and without reasonable or probable cause.
(attorneys, the seizure and confiscation of enemy gin/' situs/ destination, 8 ownership, 9 prob- There are rules authorizing the destruc-
police, etc ...) capture. The President of the United ships that are in its harbors when war able use, 10 or other attendant tion of the property under certain circum-
will be noticed States also has power, as Commander-in- occurs. 8 Furthermore, even when recog-
and now any Chief of the Navy, to exempt certain ves- nized or accorded as a privilege, a vessel circumstances. 11 Likewise, whether or not stances, 3 and the captors or custodians are
attempt at
sels or cargoes by general instructions; 4 which does not leave within the time al- goods are liable to seizure as contraband not answerable for the safety of the prop-
capture / seziure / usually is determined by their destina-
arrest is now however, such instructions must be ~own lowed is liable to capture and erty in all events. 4 They are liable, how-
forbidden tion12 and their intended use. 13 ever, for loss or damage arising from their
to the commanders of vessels of war m or- confiscation. 9
der to invalidate a capture thereby negligence or willful wrongdoing. 5
§ 28 Duties and liabilities of captors
forbidden. 5 Moreover, neither a consul nor § 27 Property subject to capture- Captors generally have the right and
the commander of an American vessel of Neutral property Research References duty to carry their prizes to a proper and
this is why one war has authority, by virtue of his or her
MUST contact West's Key Number Digest, War and National convenient port for adjudication6 although
thru "proper" official station, to grant any license or Research References Emergency e:->1068, 1070 there may be circumstances where the
and "established"permit which could have the legal effect of West's Key Number Digest, War and National
channels for Liability for the capture of a vessel or cargo
communication exempting the vessel of6 an enemy from Emergency e:->1065, 1066 by a belligerent exists only when the capture
capture and confiscation. Neutral property is subject to capture and
condemnation in certain circumstances, such 12
Vessel in port of belligerent at outbreak of as where the goods are contraband of war. military supplies, equipment, instruments, or arms. U.S.-The Hart, 70 U.S. 559, 18 L. Ed. 220,
hostilities. Furthermore, a neutral vessel that engages in U.S.-The Rensalaer, 49 Ct. Cl. 1, 1913 WL 1865 WL 10777 (1865); U.S. v. Six Boxes of Arms,
unneutral service may be subject to 1297 (1913). 27 F. Cas. 1087, No. 16295 (S.D. Ohio 1861).
A convention adopted at the Hague 13U.S.-The Peterhoff, 72 U.S. 28, 18 L. Ed.
condemnation. 4
U.S.-The Ariadne, 15 U.S. 143, 4 L. Ed. 205,
Conference of 1907 recites that it is desir- 564, 1866 WL 9366 (1866).
1817 WL 2004 (1817).
able to allow a merchant ship of one bel- Neutral property is not liable to capture 5
ligerent which is in an enemy port at the and condemnation1 except in certain cases, U.S.-The Erstern, 2 U.S. 34, 2 Dall. 34, 1 L. [Section 28]
Ed. 277, 1782 WL 42 (Fed. Ct. App. 1782).
such as resistance to search. 2 In addition,
1
commencement of hostilities or which U.S.-U.S. v. The Paquete Habana, 189 U.S.
6
U.S.-Thirty Hogsheads of Sugar v. Boyle, 453, 23 S. Ct. 593, 47 L. Ed. 900 (1903).
thereafter, while in ignorance of the com- neutral goods may be subject to capture 13 U.S. 191, 3 L. Ed. 701, 1815 WL 1472 (1815). 2
mencement of hostilities, enters such port when they are contraband of war. 3 Fur- U.S.-The Sir William Peel, 72 U.S. 517, 18
7
U.S.-The Joseph, 12 U.S. 451, 3 L. Ed. 621, L. Ed. 696, 1866 WL 9402 (1866).
or is encountered on the high seas, to thermore, a neutral vessel employed in 1814 WL 2394 (1814). 3
depart freely, either immediately or after unneutral service, such as carriage of U.S.-The Santo Domingo, 119 F. 386 (E.D.
8
U.S.-The London Packet, 18 U.S. 132, 5 L. N.Y. 1903).
Ed. 52, 1820 WL 2140 (1820). 4
U.S.-The Amiable Nancy, 16 U.S. 546, 4 L.
[Section 26] SU.S.-L. Littlejohn & Co. v. U.S., 270 U.S. Continuous voyage Ed. 456, 1818 WL 2445 (1818).
Where the ostensible destination of the vessel 5
1
Hague Coventions of 1907, Convention X. 215, 46 S. Ct. 244, 70 L. Ed. 553 (1926). U.S.-The Anna Maria, 15 U.S. 327, 4 L. Ed.
2 SU.S.-The Amy Warwick, 67 U.S. 635, 17 L. is a neutral port, but she is in reality intended, af- 252, 1817 WL 2038 (1817).
U.S.-The Paquete Habana, 175 U.S. 677, ter touching there, to proceed with the same cargo
20 S. Ct. 290, 44 L. Ed. 320 (1900). Ed. 459, 1862 WL 6725 (1862). SU.S.-The Lively, 15 F. Cas. 631, No. 8403
to an enemy port, the voyage may be viewed as (C.C.D. Mass. 1812).
3
U.S.-U.S. v. Dewey, 188 U.S. 254, 23 S. Ct. [Section 27] "continuous" so as to make the destination hostile
415, 47 L. Ed. 463 (1903). 1 throughout. Proper port
U.S.-The Bee, 49 Ct. Cl. 630, 1914 WL 1386
It is the duty of the captor to bring the prop-
~.S.-The Mary, 13 U.S. 126, 3 L. Ed. 678, (1914). U.S.-The Pearl, 72 U.S. 574, 18 L. Ed. 677,
2 1866 WL 9364 (1866). erty within the jurisdiction of a prize court of the
1815 WL 1480 (1815). § 29. nation to which he or she belongs.
SU.S.-The Mary and Susan, 14 U.S. 46, 4 L. 3
U.S.-The Peterhoff, 72 U.S. 28, 18 L. Ed. ~.S.-American Transatlantic Co. v. U. S., U.S.--Jecker v. Montgomery, 54 U.S. 498, 13
Ed. 32, 1816 WL 1748 (1816). 564, 1866 WL 9366 (1866). 113 Ct. Cl. 484, 83 F. Supp. 832 (1949). How. 498, 14 L. Ed. 240, 1851 WL 6690 (1851).
6 1
U.S.-The Amado, 20 F. Cas. 1107, No. Meaning of "contraband" 0U.S.-Oakes v. U.S., 174 U.S. 778, 19 S. Ct. As to prize proceedings and adjudications, see
12005 (E.D. La. 1847). As used in international law governing mari- 864, 43 L. Ed. 1169 (1899). §§ 30 to 46.
7
Second Hague Peace Conference 1907, Con- time warfare, 'C<tntraband consists of trade wit~ a 11 U.S.-The Pedro, 175 U.S. 354, 20 S. Ct. 138, As to the duties imposed by statute on the com-
vention VI. belligerent intended to provide the latter with 44 L. Ed. 195 (1899). manding officer of the capturing vessel, see § 35.

44 45
 CoRPUS JuRIS SEcUNDUM WAR AND NATIONAL DEFENSE § 30
§ 28

captor is excused from this duty. 7 The warship with the authority to hail and ted to proceed. 16 tion of the United States district courts
prize should be brought into port in as board an unidentified vessel to ascertain provides that those courts will have origi-
2. Prize Courts and Procedure nal jurisdiction, exclusive of the courts of
good condition as possible, 8 and except its nationality. If suspicions as to nation- Therein
under special circumstances, the cargo ality persist, the inquiring nation may the states, of any prize brought into the
a. In General United States and all proceedings for the
should not be disturbed until the ship is board the vessel and search for registra- condemnation of property taken as a
brought into port. 9 Where vessels or goods tion papers or other identification in order § 30 Generally; jurisdiction prize. 5 More specifically, the statute gov-
are requisitioned for public use before to verify the vessel's nationality. 5 erning prize court proceedings 6 confers
adjudication by a prize court, they should Research References
Force may be used in assertion of the original jurisdiction upon the United
be properly appraised and accounted for. 10 West's Key Number Digest, Admiralty e::->24;
States district courts of each prize and
right to visit and search a vessel, if neces- War and National Emergency e::->1072, 1073
sary,6 and any injury thereby caused to each proceeding for the condemnation of
§ 29 Visit and search of neutral A prize court is not instituted to determine property taken as a prize if the prize is
vessels in maritime war the vessel detained does not give rise to a civil and private rights but rather to try judi- brought into the United States, the com-
cause of action for damages. 7 The pre- cially the lawfulness of captures at sea, to
Research References monwealths, or possessions. That statute
sumption is in favor of the legality of the redress wrongful captures, and to justify the
also confers jurisdiction upon the district
West's Key Number Digest, War and National search, 8 and the burden of proof to show rightful acts of the captors in the eyes of other
Emergency e::->1060 nations. courts if the prize is brought into the ter-
illegal exercise of the right rests on the ritorial waters of a cobelligerent or into a
Belligerents have the right to visit and search owners of the vessel detained. 9 A prize court is not instituted to deter- locality in the temporary or permanent
neutral vessels, for the purpose of ascertaining mine civil and private rights but for the possession of, or occupied by, the armed
whether the vessel and cargo are subject to
The vessel visited and searched is liable
to seizure as a result of the exercise of the purpose of trying judicially the lawfulness forces of the United States or if the prize
capture.
right10 where its papers are not in proper of captures at sea. 1 A prize court proceed- is appropriated for the use of the United
The right to visit and search neutral 11 12 ing has the additional objective of redress- States. 7 Those courts also have original
vessels is a war right, 1 the exercise of form or where it resists search, 13at- ing wrongful captures and justifying the jurisdiction, exclusive of the state courts,
which is for the purpose of ascertaining tempts to elude visitation and search or
14 or is under belligerent rightful acts of captors in the eyes of other of a prize cause in which the prize prop-
the nationality of the vesseP and the to escape,
15 nations. 2 Prize jurisdiction is invested by erty is lost or entirely destroyed or cannot
nature of its cargo, 3 with a view to deter- convoy . Where a vessel and cargo prove statute in the federal courts of the United be brought in for adjudication because of
mining whether the vessel and cargo are to be neutral, however, the rights of the States solely to determine title to or pay- its condition. 8
subject to capture. 4 The "right of ap- belligerent are in no way transgressed by ment of items captured during times of The statute governing prize court pro-
proach" is a doctrine of international mar- any resistance. The right of search is belligerency. 3 The jurisdiction of a prize ceedings9 is intended for use either by
itime common law that bestows a nation's exhausted, and the vessel must be permit- court attaches in every case in which armed forces of the United States or by
there has been a seizure in prize, that is, persons or entities acting on behalf of the
7
U.S.-Jecker v. Montgomery, 54 U.S. 498, 13
6
U.S.-The Sea Nymph, 36 Ct. Cl. 369, 1900 where there is an actual taking of posses- United States. 10 That statute applies, by
How. 498, 14 L. Ed. 240, 1851 WL 6690 (1851). WL 1416 (1901). sion or capture of a vessel. 4 its terms, to all captures of vessels as
7
8
U.S.-Del Col v. Arnold, 3 U.S. 333, 3 Dall. U.S.-The Eleanor, 15 U.S. 345,4 L. Ed. 257, The statute setting forth the jurisdic- prize property during war by authority of
333, 1 L. Ed. 624, 1796 WL 872 (1796). 1817 WL 2002 (1817).
8
9
U.S._:.The Arabella, 1 F. Cas. 1077, No. 501 U.S.-The Hiram, 41 Ct. Cl. 12, 1905 WL 916 16U.S.-The Endeavor, 44 Ct. Cl. 242, 1908 WL 7
(1905). 10 U.S.C.A. § 7652(a).
(C.C.D. Mass. 1815).
10
9
U.S.-The Fair American, 39 Ct. Cl. 184, 747 (1909). Consent of cobelligerent required
U.S.-U.S. v. The Nuestra Senora De Regla, The jurisdiction of the United States district
108 U.S. 92, 2 S. Ct. 287, 27 L. Ed. 662 (1883). 1903 WL 809 (1904). [Section 30]
10 1
courts over prizes brought into the territorial
U.S.-The Nancy, 37 Ct. Cl. 401, 1900 WL U.S.-Cushing v. Laird, 107 U.S. 69, 2 S. Ct. waters of a cobelligerent may not be exercised, nor
[Section 29] 1519 (1902). 196, 27 L. Ed. 391 (1883). may such prizes be appropriated for the use of the
1
U.S.-The Marianna Flora, 24 U.S. 1, 6 L. 11
U.S.-The Pizarro, 15 U.S. 227, 4 L. Ed. 226, 2 United States within those territorial waters, un-
U.S.-Cushing v. Laird, 107 U.S. 69, 2 S. Ct.
Ed. 405, 1825 WL 3124 (1825). 1817 WL 2015 (1817). less the government having jurisdiction over those
196, 27 L. Ed. 391 (1883).
2
U.S.-The Resolution, 2 U.S. 19, 2 Dall. 19, 12
U.S.-The Peterhoff, 72 U.S. 28, 18 L. Ed. waters consents to the exercise of the jurisdiction
SU.S.-Lloyd's Syndicate 609 v. U.S., 780 F. or to the appropriation.
1 L. Ed. 271, 1781 WL 45 (Fed. Ct. App. 1781). 564, 1866 WL 9366 (1866). Supp. 998 (S.D. N.Y. 1991).
3
U.S.-The Jane, 37 Ct. Cl. 24, 1900 WL 1436 13U.S.-The Baigorry, 69 U.S. 474, 17 L. Ed. 4
10 U.S.C.A. § 7652(c).
U.S.-Lloyd's Syndicate 609 v. U.S., 780 F. 8
10 U.S.C.A. § 7652(b).
(1901). 880, 1864 WL 6605 (1864). Supp. 998 (S.D. N.Y. 1991). 9
4
U.S.-The Nereide, 13 U.S. 388, 3 L. Ed. 769, 14U. S. For. Rel. (1898) p 781, Instructions to 10 U.S.C.A. §§ 7651 to 7681.
"Vessel" includes aircraft 1
1815 WL 1481 (1815); The Jane, 37 Ct. Cl. 24, 1900 U. S. Blockading Vessels and Cruisers, General 0U.S.-Lloyd's Syndicate 609 v. U.S., 780 F.
10 U.S.C.A. § 7651(b)(1). Supp: 998 (S.D. N.Y. 1991).
WL 1436 (1901). Orders, No. 49~.June 20, 1898. 5
5
U.S.-U.S. v. Romero-Galue, 757 F.2d 1147
15U.S.-The Sea Nymph, 36 Ct. Cl. 369, 1900 28 U.S.C.A. § 1333(2). ''Vessel" includes aircraft
6
(11th Cir. 1985). WL 1416 (1901). 10 U.S.C.A. §§ 7651 to 7681. 10 U.S.C.A. § 7651(b)(1).

47
46
§ 30 CoRPUS JuRIS SEcUNDUM WAR AND NATIONAL DEFENSE § 34

the United States or adopted and ratified propriated for the use of the United States prize. 2 The monition issued in either case the duties prescribed for prize
by the President. 11 However, the statute before proceedings are started, the venue must be served on the United States At- commissioners. 6 Such commissioners may
does not affect the right of the United of the proceedings for adjudication of the torney for the district, on the Secretary of be appointed in connection with any prize
States Army or Air Force, while engaged cause will be in the judicial district se- the Navy, and on such other persons as cause in which proceedings are brought
in hostilities, to capture enemy property lected by the Attorney General of the are designated by order of the court. 3 under the statutory provision, 7 governing
or neutral property used or transported in United States or his or her designee,3 for prizes brought into the territorial waters
violation of the obligations of neutrals the convenience ofthe United States. § 33 Appointment of prize of a cobelligerent or into a locality pos-
under international law, wherever such If the prize property is lost or entirely commissioners
sessed or occupied by the armed forces of
property is found. 12
destroyed, or if no part of it has been or Research References the United States. 8 The court may deter-
can be sent in for adjudication because of
West's Key Number Digest, War and National mine the number and qualifications of the
§ 31 Court in which proceedings its condition, proceedings for adjudication Emergency e:::>1072
of the cause may be brought in any district special prize commissioners it appoints,
brought; venue
designated by the Secretary of the Navy. 4 Prize commissioners and special prize com- but there must be at least one naval
Research References missioners may be appointed for service in any special prize commissioner in each cause
In such a case, the proceeds of anything prize cause in which proceedings are brought.
West's Key Number Digest, Admiralty e:::>24; sold must be deposited with the Treasurer to protect the interests of the Department
War and National Emergency e:::>1072, 1073 In each judicial district, there may be ofthe Navy. 9
of the United States or public depositary
Proceedings for the adjudication of the prize in or nearest the district designated by not more than three prize commissioners,
cause must be brought in the district in which the Secretary, subject to the orders of the one of whom is the naval prize § 34 Recapture and restoration
the port is located, if a prize is brought into a commissioner. 1 The prize commissioners
port of the United States, or its territories, com- court for that district. 5
are appointed for service in any prize Research References
monwealths, or possessions. Otherwise, proper
venue is in the court selected by the Attorney § 32 Effect of failure to start cause in which proceedings are brought West's Key Number Digest, War and National
General of the United States or, in the case of under the statutory provision, 2 governing Emergency e:::>1071
proceedings
lost or destroyed prize property, by the Secre- prizes brought into a port of the United A vessel or property that is recaptured may
tary of the Navy. Research References States or under the provision, 3 governing be restored to the original owners. The recap-
If a prize is brought into a port of the West's Key Number Digest, War and National proceedings for lost or destroyed prize ture of a vessel before condemnation by a prize
United States, or the commonwealths or Emergency e:::>1072, 1074, 1075 property. 4 court deprives the original captor of any inter-
possessions, proceedings for the adjudica- est in it.
Any party claiming the captured property The naval prize commissioner must be
tion of the prize cause must be brought in may move for a monition to show cause why an officer of the Navy whose appointment
such proceedings should not be started or bring
Where the capture was made in viola-
the district in which the port is located. 1 an original suit for restitution if prize proceed-
is approved by the Secretary of the Navy. tion of neutral rights, 1 or where there is
In the absence of instructions from higher ings are not initiated within a reasonable time. At least one of the other commissioners doubt as to the legality of the capture/
authority as to the port to which the prize must be a member of the bar of the court, the property should be restored to the
will be sent for adjudication, the com- If a vessel is captured as a prize and no of not less than three years' standing, who
proceedings for adjudication are started original owners. However, the property
manding officer of the capturing vessel is experienced in taking depositions. 5 may be released or sold after appraisal,
will select the port that the officer consid- within a reasonable time, any party claim-
ing the captured property may move for a A district court may appoint special before adjudication, or while an appeal is
ers most convenient in view of the inter- prize commissioners to perform abroad pending under some circumstances, 3 such
ests of probable claimants. 2 monition to show cause why such proceed-
ings should not be started or bring an
If the prize is brought into the territo- original suit for restitution. 1 Such a mo- 7
U.S.-Hunt v. Paco Tankers, Inc., 226 F. Supp. 10 U.S.C.A. § 7653(b).
rial waters of a cobelligerent, or is brought tion or suit must be filed or brought in a 279 (S.D. Tex. 1964) 8
into a locality temporarily or permanently United States district court as a court of 2
10 U.S.C.A. § 7655(b).
10 U.S.C.A. § 7654. As to proceedings for prizes brought into the
possessed or occupied by the armed forces 3
territorial waters of a cobelligerent or territory oc-
10 U.S.C.A. § 7654.
of the United States, or if the prize is ap- cupied by the armed forces of the United States,
[Section 33)
1
see§ 31.
5
10 U.S.C.A. § 7655(a). 9
10 U.S.C.A. § 7655(b).
11
10 U.S.C.A. § 7651(a). 10 U.S.C.A. § 7653(c). 2
As to the sale of prize property, see § 43. 10 U.S.C.A. § 7653(a). [Section 34]
12
10 U.S.C.A. § 7651(a). 3
10 U.S.C.A. § 7653(c). 1
[Section 31) [Section 32] 4 U.S.-The Fanny, 22 U.S. 658, 6 L. Ed. 184,
1 10 U.S.C.A. § 7655(a). 1824 WL 2685 (1824).
1 10 U.S.C.A. § 7654. 5
10 U.S.C.A. § 7653(a). 10 U.S.C.A. § 7655(a). 2
2
"Monition" distinguished from "citation" U.S.-The Sir William Peel, 72 U.S. 517, 18
§ 35. 6
In admir~ law, process in rem is called .a 10 U.S.C.A. § 7655(b). L. Ed. 696, 1866 WL 9402 (1866).
3 3
10 U.S.C.A. § 7653(b). "monition" whereas process in personam usually IS As to the duties of prize commissioners, see U.S.-The Sunbeam, 23 F. Cas. 406, No.
4
10 U.S.C.A. § 7653(c). called a "citation." § 39. 13614 (C.C.S.D. N.Y. 1863).

48 49
§ 34
as where bail is given, 4 or the prize IS
perishable or deteriorating. 5
In the case of valid and successive
captures or recaptures of the same vessel,
it may be considered as the prize of the
last captor6 but not where the first capture
was illegal, 7 or the first captor was im-
properly induced to release possession. 8
The recapture of a vessel before condem-
nation by a prize court deprives the origi-
nal captor of any interest in it9 and divests
the courts of his or her country of any ju-
risdiction over it. 10
Under the statutes governing prize
proceedings, if a vessel or other property
that has been captured by a force hostile
to the United States is recaptured, and if
the court believes that the property has
not been condemned as prize by competent
authority before its recapture, the court
will award an appropriate sum as
salvage. 11 If the recaptured property
belongs to the United States, it will be
restored to the United States, and the
costs and expenses ordered by the court
to be paid will be paid from the United
States Treasury. 12 Similarly, if the recap-
tured property belongs to any person
residing within or under the protection of
the United States, the court will restore
the property to its owner, upon his or her
claim and on payment of such sum as the
court may award as salvage, costs, and
expenses. 13
If the recaptured property belonged to
any person permanently residing within
4
U.S.-The Lynchburg, 15 F. Cas. 1175, No.
8638 (S.D. N.Y. 1861).
5 11
U.S.--Jennings v. Carson, 8 U.S. 2, 2 L. Ed.
531, 1807 WL 1252 (1807).
6
U.S.-The Astrea, 14 U.S. 125, 4 L. Ed. 52,
1816 WL 1776 (1816); The Adeline, 13 U.S. 244, 3
L. Ed. 719, 1815 WL 1495 (1815).
7 As to appointment of the prize master by the
U.S.-Oakes v. U.S., 174 U.S. 778, 19 S. Ct.
864, 43 L. Ed. 1169 (1899).
8 [Section 35]
U.S.-The Mary, 15 U.S. 123, 4 L. Ed. 200,
1817 WL 2013 (1817).
9
U.S.-The Astrea, 14 U.S. 125, 4 L. Ed. 52,
1816 WL 1776 (1816).
50
CoRPUS JuRIS SECUNDUM
the territory and under the protection of
any foreign government in amity with the
United States, and under the law or us-
age of that government the property of a
citizen of the United States would be
restored under like circumstances of
recapture, the court will restore the prop-
14
erty to the owner, upon his or her claim.
The restoration will be made under such
terms as the law or usage of the owner's
government would require of a citizen of
the United States under like
circumstances. If no such law or usage is
known, the property will be restored upon
the payment of such salvage, costs, and
expenses as the court orders. 15
b. Duties of Officers and
Public Officials
§ 35 Commanding officer of
capturing vessel
Research References
West's Key Number Digest, War and National
Emergency <S:::>1068, 1072, 1074, 1075
Various duties are imposed upon the com-
manding officer of the capturing vessel by
statute.
The commanding officer of a vessel mak-
ing a capture must secure the documents
of the captured vessel, including the log,
the documents of cargo, and all other
documents and papers found on board. 1
The commanding officer must inventory
10
U.S.-Hudson v. Guestier, 8 U.S. 293, 2 L.
Ed. 625, 1808 WL 1896 (1808).
10 U.S.C.A. § 7672(a).
12
10 U.S.C.A. § 7672(b).
13
10 U.S.C.A. § 7672(c).
14
10 U.S.C.A. § 7672(d).
15
10 U.S.C.A. § 7672(d).
1
10 U.S.C.A. § 7657(a)(l).
As to t~ duties and liabilities of captors,
generally, see § 28.
WAR AND NATIONAL DEFENSE
and seal all of the documents and papers 2
and send them to the court in which
proceedings are to be conducted, along
with a written statement containing the
information concerning the completeness
and condition of the documents that is
required by statute. 3
The commanding officer of the captur-
ing vessel is required by statute to send
as witnesses to the prize court any of the
specified officers, as well as other persons
on board, whom the commanding officer
believes to be interested in or to know the
title, national character, or destination of
the prize. 4 If any of the usual witnesses
cannot be sent, the commanding officer
must send the reasons therefor to the
court. 5
The commanding officer of the captur-
ing vessel must place a competent prize
master and a prize crew on board the
prize and send the prize, the witnesses,
and all documents and papers, under
charge of the prize master, into the port
of adjudication. 6 In the absence of instruc-
tions from higher authority as to the port
to which the prize will be sent for adjudi-
cation, the commanding officer of the
capturing vessel will select the port that
the officer considers most convenient in
view of the interests of probable
claimants. 7
If the captured vessel, or any part of
the captured property, is not in condition
to be sent in for adjudication, the com-
manding officer of the capturing vessel
must have a survey and appraisal made
by competent and impartial persons and
must send the reports of the survey and
2
10 U.S.C.A. § 7657(a)(2).
3
10 U.S.C.A. § 7657(a)(3).
4
10 U.S.C.A. § 7657(a)(4).
5
10 U.S.C.A. § 7657(a)(4).
6
10 U.S.C.A. § 7657(a)(5).
7 2
10 U.S.C.A. § 7657(b).
8
10 U.S.C.A. § 7657(c).
9
10 U.S.C.A. § 7657(c).
As to the sale of prize property by order of
§ 36
appraisal to the court in which proceed-
ings are to be conducted. 8 Property that is
so su~veyed and appraised, unless ap-
propnated for the use of the United
States, is required by statute to be sold
under the authority of the commanding
officer who is present. As is true in the
case of the sale of prize property more
generally, the proceeds of the sale must
be deposited with the Treasurer of the
United States or in the public depositary
most accessible to the court in which the
proceedings are to be had, subject to the
court's order in the cause. 9
§ 36 Prize master; delivery of vessel
and documents
Research References
West's Key Number Digest, War and National
Emergency <S:::>1072, 1074 to 1076
Various duties are imposed upon the prize
master by statute, including the duty to take
the captured vessel, along with its documents
and papers, to the port selected for
adjudication.
The prize master is required to take the
captured vessel to the port selected for
adjud~cation. Upon arrival in that port,
1
the pnze master must deliver immediately
to a prize commissioner the documents
and papers of the captured vessel and the
inventory thereof. 2 The prize master also
must make an affidavit stating that the
documents, papers, and inventory, as well
as the prize property, are the same and in
the same condition as delivered to the
prize master or explaining any loss, ab-
sence, or change in their condition. 3
In addition, the prize master must
the court, see § 43.
[Section 36]
1
10 U.S.C.A. § 7658.
commanding officer of the capturing vessel, see§ 35.
10 U.S.C.A. § 7658(1).
As to the duties of the prize commissioner,
see§ 39.
3
10 U.S.C.A. § 7658(2).
51
§ 36 CoRPUS JuRIS SECUNDUM wAR AND NATIONAL DEFENSE § 40

report all information respecting the prize Upon receiving the report that the prize under warrant from the coure and to documents and papers of the captured
and her capture to the United States at- master is directed by statute 3 to make submit to the Secretary of the Navy, at vessel and the inventory thereof and
torney4 and must deliver the persons sent respecting the prize and the capture, the such times as the Secretary designates, a must take the affidavit that the prize
as witnesses to the custody of the United United States attorney for the district full statement of the condition of the prize master is required by statute to give. 2 The
States marshal. 5 The prize master is must promptly file a libel against the and the disposal made thereof. 3 prize commissioner or commissioners also
required to retain the prize in his or her prize property. 4 The United States at- The United States marshal is required must examine and inventory the prize
custody, until it is taken therefrom by pro- torney also must obtain a warrant from to report to the court any cargo or other property, 3 applying to the court for an or-
cess from the prize court. 6 the court directing the marshal to take property that the marshal thinks should der to the marshal to unload the cargo if
custody of the prize property5 and must necessary to that examination and
proceed to obtain a condemnation against be unloaded and stored or sold. 4 The
§ 37 United States attorney; filing of marshal also must insure the prize prop- inventory. 4
libel the property. 6
erty if, in the marshal's judgment, it is in The commissioner or commissioners
In connection with the condemnation
Research References proceedings, the United States attorney the interest of all concerned to do so. 5 If a must report to the court and notify the
West's Key Number Digest, War and National must insure that the prize commissioners sale is ordered, the marshal will have United States attorney whether any of the
Emergency e::->1072, 1074, 1075 charge of the sale of the prize property prize property requires immediate sale in
take proper preparatory evidence and that
The United States attorney for the judicial they take depositions de bene esse of the and be responsible for the conduct of the the interest of all parties. 5 They also must
district in which the cause is adjudicated is
prize crew and of other transient persons sale in the manner ordered by the court, report to the court any matter relating to
charged by statute with the duty of protecting and must collect the gross proceeds for the condition, custody, or disposal of the
the interests of the United States in prize who know any facts bearing on the
immediate deposit with the Treasurer of prize property requiring action by the
proceedings. Upon receiving a report concern- condemnation. 7
ing a prize and its capture, the United States the United States or the public depositary court6 and are required to report to the
attorney must file a libel against the prize § 38 United States marshal; custody nearest the place of sale, subject to the or- Secretary of the Navy if, in their judg-
property.
of property and witnesses der of the court in the cause. 6 ment, any of the prize property is useful
The interest of the United States in a to the United States in the prosecution of
prize cause are represented by the United Research References § 39 Prize commissioners; war. 7
States attorney for the judicial district in West's Key Number Digest, War and National examination of property and The prize commissioner or commission-
which the cause is adjudicated. The Emergency e::->1068, 1072, 1074 report to court ers must return to the court, sealed and
United States attorney is charged with Various duties are imposed upon the United secured from inspection, the documents
Research References
the duty of protecting the interests of the States marshal by the statutes governing prize and papers received, duly scheduled and
proceedings. West's Key Number Digest, War and National numbered. They also are required to
United States and must examine all fees, Emergency e::->1072, 1075
costs, and expenses sought to be charged The United States marshal is required return to the court the preparatory evi-
against the prize fund. 1 In a judicial by statute to keep in his or her custody In addition to receiving the documents and dence, the evidence taken de bene esse,
district where one or more prize causes all persons found on board a prize and papers of the captured vessel and the prize and their inventory of the prize property. 8
are pending, the United States attorney is sent in as witnesses, until they are re- master's affidavit, the prize commissioner or
commissioners must examine and inventory the c. Procedure
required to send to the Secretary of the leased by the prize commissioners or the prize property and report to the court concern-
Navy, at least once every three months, a court. 1 The marshal also is required to ing its condition. § 40 Pleadings
statement of all such causes. The state- keep safely in custody all prize property
ment must be in the form and covering One or more of the prize commissioners Research References
the particulars required by the Secretary. 2 must receive from the prize master the West's Key Number Digest, War and National

2 2
4
10 U.S.C.A. § 7658(3).
4
10 U.S.C.A. § 7659(a)(1). 10 U.S.C.A. § 7662(2). 10 U.S.C.A. § 7660(2).
5 3 As to the statutory duties of the prize master,
As to the duties of the United States at- 10 U.S.C.A. § 7659(a)(2). 10 U.S.C.A. § 7662(6). see§ 36.
torney, see§ 37. As to the duties of the United States marshal, 4
10 U.S.C.A. § 7662(3). As to the examination of witnesses by the
5
10 U.S.C.A. § 7658(4). see§ 38. As to the sale of prize property, see § 43. prize commissioners, see § 41.
As to the duties of the United States marshal, 6 3
10 U.S.C.A. § 7659(a)(3). 5 10 U.S.C.A. § 7660(5).
see§ 38. 7
10 U.S.C.A. § 7662(4). 4
10 U.S.C.A. § 7659(b). 6 10 U.S.C.A. § 7660(6).
6
10 U.S.C.A. § 7658(5). 10 U.S.C.A. § 7662(5). 5
[Section 38] 10 U.S.C.A. § 7660(7).
[Section 37] 1
[Section 39] As to the sale of prize property, see § 43.
1
10 U.S.C.A. § 7662(1). 1 610 U.S.C.A. § 7660(8).
10 U.S.C.A. § 7656(a). As to t~duty of the commanding officer of 10 U.S.C.A. § 7660(1).
7
2
10 U.S.C.A. § 7656(b). the capturing vessel to send witnesses to the prize As to the appointment of prize commission- 10 U.S.C.A. § 7660(10).
8
3
10 U.S.C.A. § 7658. court, see§ 35. ers, see § 33. 10 U.S.C.A. § 7660(9).

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