in the case of such privateer, or other ship, vessel, or boat, shall be without any Of Salvage, deductions, and shall be divided in such manner and proportions capture and as shall have have been agreed on by them as aforesaid; and in recapture. case such ship, vessel, or goods, shall have been retaken by the joint operation or means of one or more of his Majesty's ships, and one or more private ship or ships, then the judge of the High Court of Admiralty, or other court having cognizance thereof, shall order and adjudge such salvage to be paid to the recaptors, by the owner or owners of such retaken ship, vessel, or goods, as he shall, under the circumstances of the case, deem fit and reasonable; which salvage so to be adjudged shall be accordingly paid by the owners of such retaken ship, vessel, or goods, to the agents of the recaptors, in such proportions as the court shall adjudge: but if such ship or vessel, so retaken, shall appear to have been, after the taking by his Majesty's enemies, by them set forth as a ship or vessel of war, the said ship or vessel shall not be restored to the former owners or proprietors, but shall in all cases, whether retaken by any of his Majesty's ships, or by any privateer, be adjudged lawful prize for the benefit of the captors. XXXVIII. The above, therefore, is the law of salvage, with respect to capture and recapture, in a period of hostilities. We shall proceed to illustrate its application in the principal cases which have arisen under this head in the Courts of Law and Admiralty. In the courts of law, these cases are very rare, the proceedings being less convenient, and attended with more expense, than the process of the Admiralty; which is, moreover, the peculiar jurisdiction for cases of this kind. XXXIX. It is a first principle that in the case of one vessel saved by another, the master and crew are strictly the only salvors. The owners claim only under the equitable consideration of the Court, for the risk of their vessel, &c. the Court being not disposed to allow their claim to any great amount. (a) XL. A convoying ship may be entitled to salvage for the recapture of a vessel which was first taken under its protection, provided the vessel were effectually carried off, and possessed by the enemy. (b) A ship once sent forth and employed as a privateer, or vessel of war, falls within the exception; and is not to be restored upon re-capture, although at the time of the re-capture it may be employed purely as a merchant ship, carrying a (a) San Bernardo, Laretta, 1 Rob. 177. (b) The Wight, Ford, 5 Rob. A. R. 215. Of Salvage, in the case of capture and recapture. cargo, without any commission of war or any arms, except a few muskets for self-defence. (a) But the mere act of putting men on board a captured ship, which was armed at the time, and employing her as a cruizer, without a commission of war, does not bring the ship within the exception, nor defeat the right of the original owner. (b) XLI. If a ship captured by the enemy be voluntarily abandoned by him at sea, after taking out the crew, either because he may be unable, or may not think it worth while, to carry her into port, and she be found and taken possession of by a British ship of war; this is not a recapture within the Act of Parliament; and the Court of Admiralty is not restricted as to the rate of salvage, but may apportion it to the nature and merits of the case. (c) And civil salvage is due to a King's ship for services rendered to a vessel in distress, in addition to military salvage for a recapture. But a King's ship is not entitled to salvage for rescuing a convict vessel from the possession of the convicts, and a mutinous crew of men and soldiers on board of her. XLII. The regulations in the acts apply to the cases of ships cut out from under a fort, as well as to recaptures in the open seas. But these acts allow no distinction or extra reward in remuneration of the greater personal gallantry of the recaptors: but where the case does not come within the rules prescribed by the statutes, the Court of Admiralty will exercise a liberal discretion. (d) The Court of Admiralty will likewise exercise great liberality towards non-commissioned captors: In one case, the Court gave the whole proceeds, after condemnation, as a droit of Admiralty; one-third to the owners, and two-thirds to the crew; to be divided according to the usual proportion in sloops of war. (e) In another case, during the late war, where noncommissioned persons recaptured an English ship with a French cargo on board, the Court gave the salvors one-sixth for the ship, and the whole of the cargo; the latter being of small amount. (ƒ) According to the general rule, salvage is not due for neutral ships retaken from the enemy; the presumption being, that such capture has arisen from mistake, and that justice would have been done if the vessel had been carried into the port of the enemy. (a) L'Actif, Lorrial, 1 Edw. 185. (c) The Gage, Mitchell, 6 Rob. 273. Dodson, 317. 2 Dodson, 115. Francis (d) Apollo, Veal, 3 Rob. 308. in the case of But the conduct of France during the last war induced the Courts Of Salvage, of this country to depart from this general rule, and to allow capture and resalvage on the recapture of neutral property from the French. (a) capture, Upon this principle salvage was given on recapture of neutral property out of the hands of Spanish cruizers; such property having been taken under the Berlin decree, the English Court of Admiralty presuming that it would have been infallibly condemned if carried into a French or Spanish port. (b) And, upon a similar principle, salvage was given for bringing off a Portuguese vessel and cargo belonging to British and Portuguese subjects, which had put into the port of Muros, in Spain, a port within the power of the French, though not within their actual occupation, (c) Upon the same general reason, where a neutral merchant shipped goods on board a British armed ship, which was captured by the enemy, but afterwards recaptured; the Court of Admiralty held, that inasmuch as there was every ground for her condemnation, though a neutral, had she been carried into the enemy's port, salvage was due to the recaptors. (d)·· . XLIII. Salvage on recapture, under the general maritime law, is taken out of the act of parliament by the circumstance that the recaptured vessel never came into the possession of the recaptor. (e) This was a case of salvage on recapture of a British merchantman, which had separated from her convoy during a storm, and had been brought to by a French lugger, which came up and directed the master to stay by her till the storm moderated, when they would send a boat on board. The lugger continued alongside, sometimes a-head and sometimes a-stern, and sometimes to windward, for three or four hours. A British frigate coming in sight, chased the lugger, and captured her; during which time the merchantman made her escape, rejoined the convoy, and came into Pool. Sir William Scott, in giving judgment said, that the only question was, whether it was a case of salvage under the Act of Parliament, the vessel never having come into the actual possession of the recaptor. "I rather incline (he says) to think it is not. The terms of the Act of Parliament, if at any time afterwards surprised and retaken by any of his Majesty's ships of war, &c., seem to point to a case attended with the circumstance of an actual possession taken. But if it be not a case (a) Huntress, Stinson, 6 Rob. 108. Carlotta, Pasqual, 5 Rob. 54. (b) Sansom, Stevens, 6 Rob. 410. 2 Edw. 115. (d) Fanny, Lawton, Dod. 448. 305. Of Salvage, in the case of capture and re capture. of recapture under the act, it is, however, still a case of salvage under the general maritime law; and shall give the same reward as if it had been under the Act of Parliament." (a) XLIV. Where salvage is settled by the commissioners of the cinque ports by the statutes of 12 Anne and 26 Geo. 2., their award may be pleaded to proceedings in the Admiralty Court; and such award is not required in writing. (b) During the late war, some cases of military salvage arose in the Admiralty Courts; and the rule with respect to this species of salvage seems to be, that it will not be given except in cases where the property rescued was either in the possession of the enemy, or so nearly, as to be certainly and inevitably within his grasp. But, in cases where this claim of salvage cannot be supported, the Court nevertheless will not overlook actual service in preserving the ship and cargo from distress. (c) XLV. The Courts of Admiralty, proceeding upon equitable principles, will not extend the claim of salvage by an application of rigid rules, in cases where the property which had been restored, in bail, to the proprietor, to answer salvage, has been destroyed by an accident carrying with it neither censure nor penalty to the parties concerned. Therefore, in a case of demand for salvage on recaptured property, consumed by fire before the execution of the commission of the appraisement; the Court held that, under the valuation, the intervening accident must be considered at the risk of the joint property remaining within the custody of the Court for the purposes of jutice; and that the loss must fall upon both parties, in the proportion of their several interests. The claim, therefore, for salvage: on the original full value was overruled. (d) In a case of joint service, where men of war and transports were associated in a common expedition, the Court refused salvage to a King's ship for rescuing from the hands of the enemy a hired transport, upon the principle that the officers of the ship had only done their duty, and what they were bound to do, for a companion in a common danger. (e) Salvage will not be given for the rescue of a ship, not actually taken from the possession of the enemy, but which had been previously released on bail; (f) and the right of the recaptors to salvage is extinguished by a regular sentence of condemnation carried into execu (a) 3 Rob. 303., one-eighth salvage given. (b) The American Hero, 3 Rob. 322. (c) The Franklin, 4 Rob. 147. tion, and divesting the owners of their property. But where the Of Salvage, property is restored by application to the royal authority, and in the case of capture and rethe master is again put into possession, the Court of Admiralty capture. will look to the equity and substance of the proceeding, and will not consider the right of the salvors to be affected by the legal fiction of conversion. (a) In no instance has more than one half been decreed by way of salvage, except when the Crown alone has been concerned, and no claim made for a private owner. (b) Of salvage, in cases where the recapture XLVI. Many complicate cases have arisen in questions of salvage where the recapture has been joint. There is an obvious distinction in the Admiralty Courts, as to associated ships employed is joint. on a specific service, and a fleet not so associated; and this equally holds as to single ships. A privateer actually in chase, and coming up first, has been allowed to share with a king's ship in salvage on recapture; and the apportionment of the reward was according to their respective forces. (c) And in a case where a privateer was the actual recaptor, and a king's ship in sight, the Court decreed one-sixth salvage to be paid by the owners of the recaptured vessel, and only allowed the king's ship to share against the privateer as upon an eighth. (d) XLVII. It does not fall within our purpose to examine the numerous cases in which a share in prizes is claimed upon the ground of joint capture: but as many of these cases involve the question of salvage as upon a recapture, it may be necessary to refer to some of the leading decisions. It is not essential that two ships should have pursued the enemy in precisely the same or a parallel direction; even a sailing in opposite directions, with the intention of capturing, will not defeat the unity of purpose or operation. But an animus persequendi, coupled with an erroneous course, is not sufficient; nor will a mere going in search establish a joint pursuit. And when a ship or fleet, by accident or design, diverts the course of an enemy's ship, and thereby occasions capture by a totally distinct force, it cannot be considered a joint capture. (e) It is not the disposition of the Court to extend the interests of joint captors beyond the present limits; no service, therefore, antecedent or subsequent, unless the ship be employed in the identical service of the expedition, will impart a prize interest. (f) Constructive assistance by boats cannot entitle the ships to which they (a) Charlotte Caroline, Dod. 192. (d) The Providence, Edw. 270. (f) Buenos Ayres, Dod. 33. |