The Nassau
71 U.S. 634

Annotate this Case

U.S. Supreme Court

The Nassau, 71 U.S. 4 Wall. 634 634 (1866)

The Nassau

71 U.S. (4 Wall.) 634

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

1. The jurisdiction of a court of admiralty over a vessel captured jure belli is determined by the fact of capture. The filing of a libel is not necessary to create it.

2. When, under the Act of Congress of the 25th March, 1862, for the better administration of the law of prize, 12 Stat. at Large 374, the prize commissioners authorized by the act certify to a district court that a prize vessel has arrived in their district and has been delivered into their hands, this is sufficient evidence to the court that the vessel is claimed as a prize of war and in its jurisdiction as a prize court.

3. Demands against property captured as prize of war must be adjusted in a prize court. The property arrested as prize is not attachable at the suit of private parties. If such parties have claims which, in their view, override the rights of captors, they must present them to the prize court for settlement.

4. Whether a maritime lien for work and materials alleged to have been furnished to a vessel prior to her capture jure belli is lost by such capture is a proper subject for investigation and decision by the prize court before which the captured vessel is brought for adjudication, and which the parties setting up such lien can, on presentation of their claim to that tribunal properly have decided.

Page 71 U. S. 635

5. But if such parties do not so present and ask to have it decided, the question is not properly before this Court for review, in a case where the district court has only dismissed the libel as improperly filed on its instance side.

On the 17th of June, 1862, Harlan, Hollingsworth & Co., a mercantile firm doing business at Wilmington, Delaware, filed a libel in admiralty on the instance side of the District Court for the Southern District of New York, against the steamship Nassau, then in the port of New York, for repairs done to and materials furnished for the said vessel in June, 1860. On the same day, in obedience to a monition properly issued, the marshal attached the vessel and made return that she was at the time in the custody of the prize commissioners. Afterwards, on the 27th day of June, the prize commissioners certified that the steamer, an alleged prize of war, arrived at the port of New York on the 2d day of June, and was delivered into their hands and was then in their custody. These commissioners, it may be here stated, were officers acting under the authority of an act of Congress [Footnote 1] which directs that when any property captured as prize is brought into any district of the United States for adjudication, it shall be the duty of the prize commissioners to receive and keep it until by proper process of the court it shall be placed in the custody of the marshal.

A motion having been made by the district attorney, intervening for the United States, to dismiss the libel -- on the ground that a vessel under arrest as prize of war was within the cognizance of the prize court, and could not be attached in a private action, and that all legal and equitable demands against her must be adjudicated in the prize court -- the district court sustained the motion and dismissed the libel, and the circuit court, on appeal, affirmed the decree. The case was now brought here to review that decision, the libellants insisting that the order of dismissal was without authority of law.

Page 71 U. S. 640

MR. JUSTICE DAVIS delivered the opinion of the Court.

It is the practice with civilized nations when a vessel is

Page 71 U. S. 641

captured at sea as a prize of war to bring her into some convenient port of the government of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home in order that a judicial inquiry may be instituted to determine whether the capture was lawful, and if so to settle all intervening claims of property. Until there is a sentence of condemnation or restitution, the capture is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it.

But it is argued that the libel in this case was sustainable because no libel in prize had been filed, and until this was done, anyone had the right to proceed against the vessel for a meritorious claim. If this were so, it would greatly lessen, with captors, the stimulus to activity so necessary in time of war, for they could never tell how many private actions they would have to defend before they could reap the fruits of their enterprise and valor. Sound policy as well as the law of prize therefore requires that all demands against captured property must be adjusted in a prize court, and that the property arrested as prize shall not be attachable at the suit of private parties. If such parties have claims which in their view override the rights of captors, they must present them to the prize court for settlement.

The fact of capture determines the jurisdiction, and not the filing of a libel. When captured as prize of war, the property is in the custody of the law and remains there to await the decision of a prize court, and, if condemned, all claims to the property are by it adjusted. Any other rule would work great hardship to captors and tend to cripple the operations of government during time of war. Under the provisions of the act of Congress for the better administration of the law of prize, [Footnote 2] it is directed that whenever any property captured as a prize is brought into any district of the United States for adjudication, it shall be the duty of the prize commissioners to receive it and keep it until by

Page 71 U. S. 642

the proper process of the court, it shall be placed in the custody of the marshal of the district.

When, therefore, in this case the prize commissioners certified to the court below that the prize steamer Nassau had arrived in the District of New York and was delivered into their hands, there was sufficient evidence before the court that the vessel was claimed as prize of war and in the jurisdiction of a prize court, and the motion to dismiss this libel, filed by private parties, was properly entertained and decided.

Whether a maritime lien like the one in this case is lost when the property is captured jure belli would have been a proper question for investigation and decision by the prize court that condemned the Nassau and which the libellants, on presentation to that tribunal, could have had decided.

Not having done so, the question is not before this Court for review.

The decree of the circuit court is affirmed.

[Footnote 1]

Act of 25 March, 1862, 12 Stat. at Large 374.

[Footnote 2]

12 Stat. at Large 374.

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