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![handle is hein.slavery/ssactsengr0465 and id is 1 raw text is: THE ARAMINTA
surrender, and what constitutes a surrender, are very important considerations
when the claim is founded on being in sight at or before the capture. In the case
of The Rebecca (1 C. Rob. 233), Lord Stowell decided that the time of striking
the colours is to be deemed the real deditio, and not the actual taking possession.
Having made these remarks, I now proceed to the evidence in the case. I must
consider how it bears on the question of sight, on the question of surrender, and
whether any and what effect is to be given to the association between the vessels
which has been pleaded.
The learned Judge then proceeded to examine with great [80] minuteness the
statements of the respective witnesses on these points, the result of which, he said,
was that the Brazil hoisted Brazilian colours soon after two o'clock, and before the
time when the witnesses for the claimants depose she was seen from the Niger.
This evidence, he observed, raises the question as to whether hoisting the Brazilian
flag was a surrender, either taken singly by itself, or accompanied by the other
facts stated. Now, in ordinary warfare, the striking of the colours is the deditio.
It is sworn, however, by all the witnesses for the Jackal that the hoisting the colours
in the slave trade is the signal of surrender, and there is no evidence to the contrary.
No reason, however, is assigned for this being so. I have spared no pains to collect
information on this very point, and I regret to say that though I have endeavoured
to communicate with persons who have been in command of vessels upon this very
station for a length of time, I have not been able to obtain any satisfactory informa-
tion. However, it is remarkable that no reason is assigned for the hoisting of
colours being considered a signal of surrender, and I do not like to be left to conjecture
a reason, and still less to found my judgment upon any conjecture of my own;
but this we all know, that the practice of vessels engaged in the slave trade is un-
doubtedly very peculiar. We know from our statutes, and the records of our Vice-
Admiralty Courts, that such vessels frequently are not entitled to any national
character, or to hoist any flag at all. It may be-I do not say it is-that the Brazilian
flag is hoisted to denote that, the ship wishes to be treated as a Brazilian; but
however this may be, I must say the surrender in this case does not depend on the
hoisting the Brazilian flag only-if it did, I should have considerable difficulty-but
it depends upon the guns having been fired at her, upon her being within reach of
the guns, And, above all, upon her lowering her sails. The lowering of the sails is
one of those marks by which you always know that it is no longer intended either
to resist the capture or to attempt to escape. I consider, then, that these circum-
stances, taken together, clearly prove the fact of surrender; and giving equal
credit to both parties, the fact of surrender took place before the prize was seen
from the Niger, and before the Niger was seen from the prize itself. I am
of opinion, therefore, that the Niger has failed to establish her claim, and that
the association cannot avail in this case. Therefore, I must pronounce that the
Niger has failed to prove her case.
Deane, who appeared for the Jackal, prayed the Court to give the
costs.
[81] Addams, on the part of the Niger, submitted that the costs should be
paid out of the proceeds.
The Court: Most certainly not, and for an obvious and clear reason. I am sorry
I am pressed for costs on the present occasion, but I see that the conduct of Lieutenant
Bedingfield was seriously attacked, and imputations were levelled against him by Mr.
Heath, who commanded the Niger. I see than an enquiry has taken place, and
he has been acquitted. Notwithstanding that, I see that the interrogatories attack
his character as a man and a gentleman; and as I am pressed for costs I must give
them.
Rothery, proctor for the Niger.
Poynter for the Jackal.
TiE ARAMINTA -(T. Feran, Master). February 29, 1856.-Suit for wages-
Decree of Court-Payment before a shipping master-Proctor's lien.-Payment
to seamen by shipowners before a shipping master held to be-no satisfaction of
wages pronounced for in a suit in the Court of Admiralty. A proctor has the
same lien for his costs, as an attorney has, on sums of money decreed by the
Court to be paid.
1030
SWAB. SO.](ViewImageLocal?handle=hein.slavery/ssactsengr0465&div=1&collection=&method=preview&ext=.png&size=3)