Questions of Public Law (1737)
Cornelius van Bynkershoek
To Whom Does a Prize Belong That Has Been Taken by a Vessel Not Regularly Commissioned as a Privateer
IF a ship not commissioned as a privateer should take a prize while defending itself from a hostile attack or in some other way, it is well to ask who acquires the prize. Some claim that the prize falls to the owner of the ship on the ground that he owned the ship and the arms which made the capture, and he employed the captain and sailors, so that it would appear that the prize was taken by his means. They argue also that it cannot fall to the captain and the sailors because these are employees and as such cannot claim anything but their wages; nor can it fall to the shipper, since he merely engaged the ship to transport his merchandise, and for no other purpose.
Others hold that the prize should belong to the captain and the sailors, since it was taken through their brave exertions. And these argue that it cannot fall to the owner of the ship or of the cargo since neither of these engaged the ship for making captures, that indeed the capture was wholly outside the scope of the contract.
Finally, some hold that the prize should belong to the shipper, since he engaged the ship, the arms, the sailors, and the right to their labour, not only for the transportation of his merchandise, but also for the defence of the ship for the sake of his cargo, and this defence must be considered broadly not merely as an act of repelling an attack, but also as possibly involving the necessity of capturing the enemy to prevent his doing an injury. They argue, moreover, that the prize does not belong to the owner of the ship nor to the captain and his sailors, since all of these ought to be satisfied with the rents and wages for which they have bargained. Such are the arguments with which they support their own views and oppose those of others. Before I give my own view, I must state that the board of nineteen of the West India Company has decreed: ‘that a cargo vessel that makes a capture shall pay fifty per cent. of the value to the company’; and this order the States-General accepted and inserted in section 17 of the charter which they issued on July 15, 1633, to privateers cruising in American waters. It is apparent that the Company attended to their interests alone, nor did the States-General, in accepting it, have in mind any one but the Company, for they laid down no rules regarding others, whose interests were especially at stake. Accordingly this decree may be treated as a special case which is not to be used as a precedent.
I have never seen a general law on this matter, and I do not think that any exists, hence it must be decided on rational principles solely. The fair judge will, I think, give the prize to the captain and his sailors who made the capture, certainly not to the owner of the ship or to the shipper who owned the cargo- In fact, none but a very stupid person would think of assigning it to the shipper. The shipowner might have a better claim, but I should prefer the captain and sailors to him. In the following case I have found a variety of opinions. A vessel, for which the shippers had secured a licence from the Dutch and French West India Company, took an English ship, in 1667, within the company’s limits. The captain and sailors who made the capture decided to keep the prize with them, though she was slower than their own ship, ‘since it would be an advantage to the owners and shippers as well as to themselves that she should be brought to the islands for sale where she would sell to better advantage’. When the question of adjudging the prize arose, the counsellors of state gave the opinion that the sailors, being engaged for fixed salary and not for a share in the prize money, should have one-tenth, that the rest should be divided in equal parts between the shipowners and the shippers. On what principle these lawyers granted one-tenth to the sailors I do not know, and perhaps they did not know. Of the remaining nine-tenths they assign one-half to the shipowners without raising any questions, but in assigning the other half to the shippers, they explain their decision on the ground that these contributed not a little to the seizure, since they secured the licence which permitted the vessel to sail in those waters, and hence they ought to enjoy the same reward as the owners of the vessel. They also support this argument by referring to the above-mentioned decree of the sailors, in which these implied that they made the capture for the sake of the shippers as well as for the shipowners. They finally bring some arguments which seem to me very frivolous, as, for instance, that property can be acquired for us by persons employed by us as well as by ourselves; that the owners of the vessels were no more present at the capture than the shippers; and that had the vessel been unfortunate in the battle, the cargo would also have suffered.
However, these arguments in favour of the shipowner do not convince me any more than those which I cited above; for it is clear that the prize falls to the captors unless they acted by the command and under the appointment of another. The only question to decide, therefore, is who made the capture; and it is also evident that the captain and the sailors made the capture without any one’s command and appointment. Their services were indeed employed, but only for the transporting of merchandise, not for anything else. Hence, whatever profit accrues from the transportation will fall to those who employed the services of the sailors in that very task, but they have no share in the prize, neither do the shipowners, since it was not for the making of captures that the sailors were hired. While they were engaged in the wholly different task of transporting goods, fortune threw something else in their way, as Tryphoninus neatly argues in an analogous case. And for this very reason I argued in my Observationes Juris Romani, that a labourer who finds a treasure while digging is entitled to it. The terms of the labourer do not extend beyond the service for which he was engaged, and the same may be said of the sailors in the case at issue. Whatever happens to the contracting parties outside of, and foreign to, the terms of the contract they alone bear, whether it be profit or loss. Let us take for example a case of agency. If an agent has wasted the money belonging to his principal he will not impute to the principal that he was robbed by bandits, or that he had lost goods in a shipwreck, or that he or his family had been taken sick, for, as Paulus says, these things are to be imputed to accident rather than to agency. Such losses as these follow the person of the agent. Accordingly the same Paulus reasons that it is ‘according to nature’ that gains and advantages which happen to accrue by occasion of the agency should also follow the person of the agent. If A has sent B to carry goods to C and B has happened to find some money on his way, or has extorted something from a brigand who tried to rob him, no one in his right senses would hold that the money so procured should belong to A, even though the things that A was sending to C might have been endangered on the way. A did not engage B to find money or to extort anything from brigands, he engaged B to carry goods which he did, and when the agency has been fulfilled A can ask nothing further.
The objections of the state counsellors in the case in question were very trifling. The licence which the shippers had obtained from the West India Company could not serve them in making prizes, it was of service only in permitting the vessel to sail in those waters. Nor need we concern ourselves about the decree of the sailors, since it might be interpreted in various ways. In my opinion the sailors simply intended to keep the prize with them for the present, whether it ultimately was to belong to the shipowner, the shipper, or to themselves, that in fact this was all they intended, and they showed no intention to divide the prize money into three parts assigning a part to each of the three. Despite the phrasing of their edict, they may have thought that the prize belonged wholly to themselves; for if we may suppose that the prize was laden with things needed to sustain life, and that the sailors were in want of such necessities, their retaining the prize with themselves would obviously be advantageous both to the owners and the shippers, since it would enable the ship to continue its voyage; and there are numerous possible assumptions of this kind. Moreover, who would dare suppose that sailors weighed and tested every word with such care, or that if the prize was theirs they wished to boast in the edict of their possession. And even if they had believed that it was not theirs but rather the property of the shipowner or of the shipper, who would not gladly pardon their simple honesty if they revealed this belief in the edict? Yet this simple admission ought not to prejudice their rights, for if A gives up an article to B under the erroneous supposition that it belongs to B, he has not diminished his right of possession if the error is discovered. Furthermore, we should not hold an error in point of law against these sailors, since it is clear from the edict as well as from circumstances that they made no final determination, and that they had no intention of giving anything away. However, if the ship and cargo should suffer greater damage during the battle than the exigencies of the defence demand, it is clear that the sailors are held liable by the terms of their contract.
There was a somewhat similar case which the court at Brussels once decided on this principle. In that case a cavalry officer had lent his horse to a cavalryman about to enter battle; the officer claimed a share in the booty which the soldier took, but the court rejected the claim. I should not doubt the legality of this sentence, though Pierino Belli argues against it as Zouche relates. And yet there was in this case a better reason for awarding a part of the booty to the owner, since it was nothing to him whether the person who borrowed his horse should fight or not. However, he has no more claim to the booty than A has to the fish which B has caught with A’s net.
Some may consider that I am wasting words on a useless question, thinking that it is not legal to take a prize without a privateer’s commission from the government or the admiral, and that the one who makes a capture without a commission is so far from making the prize his own that he must even be condemned as a pirate, according to the principles discussed in Chapter XVIII. This view, however, is not correct. Grotius said very properly ‘that private persons can acquire booty by private acts’, and none of us doubts that booty which may chance to be in the way and is taken by private persons becomes the property of the captors. Pufendorf has been held to contradict this opinion, but erroneously, for he speaks of those who without public authorization go out for the sole purpose of making captures, not of those who overcome the enemy in self-defence, or of those who come upon booty by chance, and such are the cases that I am here discussing. If in either case you deny that it is lawful to take enemy goods, you must also deny the right to despoil one who would otherwise despoil you, and in a word you will annul the right of self-defence. For this right permits us, as does every declaration of war, to injure the enemy in every possible manner, that is, not only to avert the peril with which the enemy threatens us, but also to strip him of all his goods. The case is different with those who sail out to plunder without commissions, and without complying with the requirements of the law, for various edicts of the States-General prohibit this. But who will ask for public authorization from one who, while wholly bent upon a commercial errand, repels and perchance captures an aggressive enemy. If those who find fault with Grotius and Pufendorf had rather explained them in this way, they might have had no occasion to complain of them.