The last time an American court condemned a captured ship as prize, Harry Truman was president. Decades later, the Department of Justice is preparing to ask the federal district court in Houston to sit as a prize court and hand the government title to Iranian crude and the tankers that carry it, reviving a jurisdiction that has largely been set aside as a relic from the age of piracy and privateers.
Despite its long disuse, prize law is still good law, at least in theory. Prize law allows military vessels, or merchant vessels authorized under letters of marque, to seize commercial vessels flagged in enemy or neutral states. Prize courts helped reward, and therefore incentivize, privateering, the practice of allowing merchant vessels to operate as military vessels through a government license. Now, the Trump administration views prize courts as a faster way to gain control of seized assets rather than typical civil forfeiture proceedings. And while the government itself has not yet called for the return of privateering, some of the original policy proposals that spurred this move do.
The main arguments in favor of the revival of prize courts hinge on efficiency. To date, the U.S. has relied on civil forfeiture proceedings as the way to gain title to seized assets, but the government is concerned that this process is too time-consuming. Civil forfeiture cases can draw intervenors, such as the shipping interests that own a vessel and American families holding terrorism judgments against Iran who would like to be paid from the proceeds. These intervenors and their motions must be considered in court, and due process must be accorded–slowing case resolution considerably. Prize, at least in the eyes of the government, offers a narrower door and therefore a swifter path. Fewer parties may enter, title vests immediately in the sovereign on condemnation, and the money goes to the Treasury without passing through the machinery of forfeiture.
This proposed revival, however, rests on a misunderstanding of the historical nature of prize courts and the purpose of privateering, and on fundamental changes in the nature of modern-day naval warfare. Additionally, reviving prize court proceedings would also require that the government assert that the United States is legally at war–a question which prize uniquely forces into open court and that the government may be hesitant right now to address.
Prize Background
Prize law was an essential element of naval warfare in the 18th and 19th centuries. Naval warfare then and during the age of sail was completely different from naval warfare today. Merchant ships routinely carried cannon, for defense and even as a valuable trading resource. As part of their ordinary trading routes, sailing across an often unpredictable and violent world, these ships and their crew were trained and prepared to use cannon and other naval warfare instruments to protect themselves and their cargo.
Naturally, therefore, in times of war, these merchant ships were sometimes called upon to fight in their countries’ navies. In the First Anglo-Dutch naval war during the 17th century, for example, the majority of the ships on the Dutch side were primarily merchant vessels. Prize made sense as a legal vehicle in this world–when private vessels might well seize enemy ships, and when they often had prize crews available to sail any captured ships home.
So, too, was it logical in the United States, where prize law was the foundation for privateering. U.S. prize law allowed the relatively small naval force of the time to be supplemented by merchant vessels operating under letters of marque during times of conflict.
But the world has changed. Privateering was abolished internationally under the 1856 Declaration Respecting Maritime Law (an agreement that the United States never adhered to), and prize law continued to be limited by treaty over the following decades.
Prize nevertheless remained a routine method of naval warfare up to and including World War I and World War II, conducted at volume by ships operating alone and out of contact with their governments. Prize was particularly important for states carrying out blockades, allowing them to interdict not just enemy ships but any neutral ships running blockade. A typical prize proceeding would see a military vessel stop an enemy or neutral merchant ship, board her, and then determine if she was a good prize. If she was, a prize master and a handful of hands took her over and sailed her to a friendly port for adjudication. Importantly, this system was workable because the captured vessel could be sailed by a small crew at low cost and was itself a saleable asset.
The resulting prize court proceedings were quick because of the streamlined evidence and procedure that were a function of the time. The facts that courts needed for adjudication arrived with the ship: registry, ownership, charter, manifest, and log travelled with the hull, and the examinations of master and crew were taken early, before anyone could improve the record. Prize commissioners gathered that evidence rather than the captors. The captors themselves had money at stake, because Congress distributed prize proceeds among the officers and crew who made the capture. This gave the captors reason to bring in ship documents intact and exposed them to damages when the capture proved unfounded. And the prize court understood itself to be applying the law of nations, rather than the policy of the capturing state, which is what made its decrees intelligible to neutral states and negotiable between governments.
Shipping Today
Every one of these conditions has reversed. First, the evidentiary picture has completely changed. Almost nothing about a modern sanctioned-oil voyage would permit a court to resolve a contested matter solely from what the ship carries. Today, a vessel likely flies a flag of convenience and is owned by a single-ship company whose beneficial owner sits behind two or three intermediate holdings in jurisdictions that do not publish registries. She is on time charter to one entity and carrying cargo sold to another, under bills of lading transferable in transit. Meanwhile, the crude itself has been commingled through ship-to-ship transfers and blended with cargo of non-Iranian origin, and her position history has gaps where the transponder was off. Establishing that such a cargo is enemy property therefore requires precisely the corporate and transactional tracing that the government is currently doing in any forfeiture action–but that is also what takes so long. Thus, prize does not offer a shortcut or a path to faster disposition. It offers the same work, in a court that has no established rules for how to do that work properly.
Second, naval warfare has changed completely. Surface-to-surface naval combat has been driven, since the Second World War, by air power. Dedicated aircraft carriers are essentially mobile airports, transporting planes that then carry out bombing and aerial superiority missions. Escort ships protect the carriers, forming a carrier strike group. These escort ships, like the carriers themselves, are dedicated ships of war–far more so than even ships-of-the-line from the age of sail. Commercial transport ships, on the other hand, do not carry planes. Commercial ships do not–and certainly should not–carry out the naval warfare of a sophisticated military power like the United States. Authorizing private naval vessels to engage in that sort of activity would be more likely to lead to captured or killed Americans than it would be to lead to meaningful progress against enemy warships.
Third, the logistics of operating prize crews are a significant burden in today’s era in a way that they were not in the 19th century. Modern navies operate a small number of high-value hulls, so diverting a warship to escort a single tanker is a significant tasking, rather than an incident of routine patrol. A very large crude carrier cannot be taken over by a boarding party; she requires a qualified master and engineers, and in practice the capturing state depends on the existing crew, a management contractor, or a tow. The cargo is a liability rather than an asset in waiting, accruing storage, insurance, and demurrage from the moment of seizure. The port of adjudication is generally not near the theater but on the other side of the world. The on-scene judgment that the prize court existed to review no longer exists: captures of this kind are directed from Washington, so a court asked to test one is not second-guessing a lieutenant’s discretion at sea but reviewing a decision of the government that brought the case.
Finally, the incentives of prize law are no longer appropriately balanced. Congress abolished the distribution of prize money in 1899, removing the captor’s stake and the exposure that came with it. Reviving prize as a revenue mechanism restores the structure of captor reward, but does not restore an individual incentive, for now a United States attorney’s office rather than a ship’s company is the interested legal party. Moreover, a government that funds its operations from what it condemns creates a rather obvious legal conflict.
Court Procedure
Just as the realities of naval warfare have changed over the last century, so too have the procedures of federal courts. These changes have made prize courts an inefficient avenue for adjudication.
At a high level, the legal apparatus of prize courts remains relatively intact. In domestic law, 28 U.S. Code § 1333 gives district courts jurisdiction over prizes brought into the United States. However, the procedural rules governing prize law are less clear. Prize has consistently been carved out of federal procedural rulemaking as distinct even from the general body of admiralty law. The Supreme Court’s first admiralty rules, published in 1844, governed practice on the instance side of the court, meaning ordinary admiralty as distinguished from prize. The 1920 successor rules kept that framing and were rescinded in 1966 when civil and admiralty procedures were unified. Moreover, the Federal Rules of Civil Procedure have excluded prize since 1938 and still do, under Rule 81(a)(1).
This procedural asymmetry is what the government now hopes will allow prize cases to proceed more rapidly. But this asymmetry was created by rulemakers tidying up civil forfeiture, who saw no reason to think about prize–and have not thought about it since. For example, rule 81(a)(1) still excludes prize proceedings “governed by 10 U.S.C. §§ 7651–7681,” sections that ceased to exist under those numbers in 2018, when Congress renumbered the prize chapter to §§ 8851–8881.
Procedure for prize now is governed by 10 U.S. Code Chapter 883, which supplies the outline of a procedure for the operation of prize courts that has been largely untouched since the 1940s. Chapter 883, though, primarily supplies custody, not rules of adjudication. It appoints commissioners, assigns duties to the United States attorney and the marshal, and governs sale and proceeds. It says nothing about what a claimant must plead, who bears the burden on enemy character, or what standard of proof applies. If prize courts were to be reinstated today, those questions would have to be answered before the merits were reached, by a court with no rules and no American precedent in decades.
War and Peace
In addition to the procedural difficulties in reviving prize, prize courts also by definition can only function when a country is at war. That raises a fundamental threshold question in the current conflict. Section 8851(a) provides that prize applies to “all captures of vessels as prize during war by authority of the United States or adopted and ratified by the President.” So, before a district court can appoint commissioners, entertain a libel, or condemn anything, it must satisfy itself that the captures were made “during war.”
This is not the first time that the United States has considered using prize courts to deal with ships taken during conflict outside of a declared state of war. In January 1961, the Office of Legal Counsel advised that ships taken in a blockade of Cuba could be placed within the prize jurisdiction of the federal district courts provided that the captures could be deemed to have been made during war. But the same opinion added that in the absence of a state of war, Cuban nationals might be able to resort to American courts to test the legality of any blockade. A memorandum the following year put the point more bluntly still, arguing that one could deduce a state of war from the existence of a blockade, and that one could not claim the rights of a blockading power without acknowledging the relationship to war. Ultimately, partially motivated by an effort to avoid these thorny legal questions, the United States imposed a quarantine rather than a blockade, bolstered by a unanimous vote from the Organization of American States.
This background suggests that today, if the government invokes the prize chapter, it must first assert in open court that the United States is at war. This is of course a concession it has declined to make to Congress. But in prize court, the government must do this before parties with concrete property interests in an identified res, who have the standing that legislators and taxpayers lack and who seek restitution of specific property rather than an injunction against the conduct of foreign relations.
Further Challenges
Even if the Trump administration was willing to declare that the United States was at war and was willing to deal with the inherent procedural challenges, reviving prize law could have significant unintended consequences. Prize law has always been based on international law, and using it as a basis for asset forfeiture could bring U.S. action more into compliance with international norms.
But that compliance might have consequences. Prize is a body of customary law that other states also accept. A revival is an argument to everyone else that dormant belligerent rights can be reactivated by executive proclamation against a global category of cargo. For example, some commentators have already warned that reviving prize could open the door to China applying the practice against American and neutral merchant shipping in a Pacific conflict. This raises an important policy question–whether the United States, whose merchant tonnage and whose trading partners’ tonnage would be the most exposed in such a conflict, has more to lose than to gain from establishing that the machinery of prize is still good law.
Unfortunately, those most enthusiastic about prize courts have also been most enthusiastic about a concurrent reauthorization of privateering. We think that this would be profoundly misguided and that modern merchant ships attempting to fight dedicated war vessels would be more likely to burden American naval planners with desperate rescue missions and with American hostages–rather than with prize ships.
In short, the reactivation of prize poses serious issues, including profound procedural and substantive legal questions. Reformers with a reactivation of prize in mind might discover, on reflection, a simple but inconvenient truth: a system designed for the naval warfare of two centuries ago is a poor fit for the geopolitical world today.
FEATURED IMAGE: An oil products tanker is anchored in the Strait of Hormuz on August 10, 2026 off the coast of Bandar Abbas, Iran. (Photo by Ali Saeedi/Getty Images)