To what extent captor liable, where probable grounds of seizure?
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Captain Dishington having taken a merchant ship of Hamburgh, and obtained her to be declared prize, the Hamburghers raise reduction on this reason, that the only ground of declaring her prize, was, because she carried contraband goods towards the King of Denmark's dominions, being then in enmity with the King, which was no relevant ground, because it is evident the ship was seized a month before the proclamation of war against the Danes. It was answered for the Captain, that it is not the proclamation of war that makes the war, for the King's declaration is only to give an account to the world upon what account the King had made war with the Danes; and it is notour that there were frequent acts of hostility, both by the Danes, and against the Danes, before this capture. It was answered for the Strangers, That public denunciation makes only a public and lawful war; but whatever might have been done against the Danes, the Hamburghers (being the King's allies and friends) were not obliged to know the same, until such time that the proclamation of war might come to their ears, so that they have done no fault, being in bona fide to continue their trade until the war was made public to the world. It was answered for the Captain, That he was in optima fide to execute the King's commission, bearing expressly to make prize of all carrying contraband goods to the Danes, and therefore he could not be decerned as prædo, but the most can be decerned against him, (though the pursuer should be found to have been in bona fide to trade with the Danes) is to restore in quantum lucratus est; but so it is that he made no profit, for after the capture, he being pursued at sea by the enemy, was forced to leave the ship in question, being loaded by him, whereby she was driven ashore and suffered shipwreck.
The Lords found that the Hamburghers were in bona fide to continue their trade with Denmark, and to carry to them contraband goods at the time of the seizure, and therefore reduced the Admiral's decreet, as to the restitution of the ship and goods, or what profit the defender made of them, but for no higher value nor damages, in respect the Captain was in bona fide to execute the King's commission, unless it were alleged, the Captain was in culpa in the loss of the ship, or misprising the goods.
