The court must decide the first question proposed, namely what vessels were either actual or joint captors and as such entitled to share. In defining these terms the court has said:
"All prize belongs absolutely to the crown which for the last 150 years has been in the habit of granting it to the takers who are of two classes, actual captors and joint or constructive captors. Joint captors are those who have assisted or are taken to have assisted the actual captors by conveying encouragement to them or intimidation to the enemy."[8] It is in general considered that this encouragement or intimidation is given by all vessels in sight but this is not always true. Thus:
"For it is perfectly clear that being in sight of all cases is not sufficient. What is the real and true criteria?—— There must be some actual, constructive endeavor as well as a general intention."[9]
But in the case of king's ships all in sight generally share.
"They are under a constant obligation to attack the enemy whenever seen. A neglect of duty is not to be presumed and therefore from the mere circumstance of being in sight a presumption is sufficiently raised that they are there animo capiendi."[10] This rule holds irrespective of the character of the vessel making the actual capture.
With privateers the case is different:
"For they are not under obligation to fight. It must be shown in their case that they were constructively assisting. The being in sight is not sufficient with respect to them to raise a presumption of cooperation in capture.—There must be the animus capiendi demonstrated by some overt act, by some variation of conduct which would not have taken place but with reference to that particular object and if the intention of acting against the enemy had not been effectually entertained."[11] As privateering has been abolished this rule is now purely theoretical.
These rules are subject to exceptions however as for instance in the case of captures made in the night or after a joint chase. In such cases ships of the navy definitely associated share though not in sight. Thus:
"A fleet so associated is considered as one body unless detached by orders or entirely separated by accident and what is done by one continuing to compose in fact a part of the fleet, enures to the benefit of all."[12]
A vessel shares in the captures of its tenders.