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§ 624

another person against whom he did not ask for any sentence of condemnation and against whose goods he made no claim — he was liable to that person because he had done the damage in effecting the seizure of which he was taking the benefit. Thai seems to me to be clear from the décision in the case of The Der Mohr [1800].... That was the position of the captor before the substitution of the Crown for the individual captor by the Nav?.l Prize Act, 1864, and under the Prize Court Rules. — To my mind the whole question in the case is this: When the Crown chooses to come in and take advantage of a seizure, does it by so doing assume the position in toto of the original captor, or does it or does it not only assume the position of captor with respect to the goods against which it actually makes a claim ? ... [En répondant a cette question la Cour de Londres se conforme a la décision du Comité Judiciaire du Conseil Privé en cause du Zamora (322), sans prononcer une opinion indépendantè (comp. § 57):]

I do not think, however, that it is open to me to pronounce any independent opinion upon this matter at all, because .... the Privy Council, in considering the effect of the Prize Court Rules, came to the conclusion, in my opinion, that the Crown stood in the position of the captor for all purposes — not for the purposes of the goods which were claimed in the particular proceeding, but for all purposes, and, as it took the advantage of the capture, so it took the disadvantage and the liabüity ol the captor ... . Therefore, important and rather difficult as the case is, 1 do not think that it is open for me to consider it, and I think I ought to foüow what, in my opinion, is the meaning of the décision in the Zamora (322). I ought, therefore, to hold that the Crown, if it chooses to take advantage of a seizure, is subject to the same Uability as the captor would have been if he had done the same. If that be so, it is admitted that the captor in these circumstances would have been liable for injury caused by this negligence to göods which were not the subject of this claim, and I think the Crown is subject to the same liabüity according to this décision."

Dans le même sens la décision d'appel Oscar II, n°. i (i329b)Afin de répondre a la question de savoir si la Couronne anglaise est responsable des fautes que les capteurs. ont commises, le Comité Judiciabe. du Conseü Privé approfondit les basis historiques du droit des prises traditionnel anglais :

„It was admitted that the ship with her cargo was sunk on July t, 1915, by reason of a collision with H.M.S. Patuca, in which the latter was alone to blame ; that the Patuca was engaged ?t the time in capturing the Oscar II, in order to bring her and her cargo into port as prize of war for the Crown.... The question was whether the Procurator-General could be made liable .... — Captures at sea in time of war are made under the authority of the Crown in the exercise of its beüigerent rights. In th* regular course those who effect the capture must hold the Sovereign's commission, although a capture made without it may be after-