CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS, OCTOBER TERM, 1818, AT BOSTON. BEFORE [Continued from the first volume.] Hon. JOSEPH STORY, Associate Justice of the Supreme Court. THE DESPATCH and cargo, Bancroft, Master, Coolidge, &c. CLAIMANTS. In cases of joint capture by privateers, they share in proportion to the number of men composing their respective crews. STORY, J. The brig Despatch and cargo were captured by the privateer Castigator in company with the privateer Fame, and, upon the whole evidence in the cause, it appears to be a clear case of joint capture. By consent of the parties, a decree pro forma in favour of the captors has been rendered against the claimants, upon which an appeal is to be interposed, and the only question, remaining for the consideration of the Court, is the relative proportion, in which the privateers shall respectively share. The Castigator had one gun of 6 lbs. and 19 men, and the Fame two guns of 4 lbs. and 18 men. As between public ships of the United States this point is settled by the 7th article of the rules for the distribution of prizes, in the act of April 23d, 1800, (5 vol. U. S. laws, 108,) Despatch and Cargo. which provides, that in cases of joint capture, the capturing ships shall share" according to the number of men and guns on board each ship in sight." But as to private armed ships, no regulation has been adopted, and of course the distribution must be governed by the general rules of the prize jurisdiction. Upon general principles, it would seem reasonable, in cases of joint capture, that the distribution should be made according to the relative strength of the capturing ships. In that proportion the intimidation of the enemy, which would lead to a surrender, would ordinarily be supposed to exist, where no battle should be actually fought; and in cases of actual battle, the degree of injury done to the enemy would be estimated in the same manner. And, in a middle class of cases, where one ship was actually engaged, and the other only in general cooperation, the ultimate surrender might be well attributed, as much to the despair of escape from the combined force, as the immediate injury from the engaging force. And, indeed, to attempt a discrimination founded upon different degrees of exertion, would be very difficult, if not wholly impossible, in practice. Bynkershoek, therefore, and he alone is a great authority, lays down the rule, that the parties shall, in joint captures, share in proportion to their respective strength.' And this I apprehend to be the rule adopted in the Prize Courts of England and France; and perhaps it forms the basis of the distribution among the other maritime powers of Europe.* In the manner of estimating the relative strength a great diversity of regulation exists. Valin in his treatise of prizes, states that in France the mode varies in three classes of Bynk. Q. Pub. Juris: chap 18. Per Dup. 164. 2 Vide Duckworth v. Tucker, 2 Taunt. Rep. 7. 3 Des prises chap. 19. |