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to give a person so employed a title to the reward which the law allots to that meritorious act of duty. But a mere rescue of a ship engaged in the same common enterprise gives no right to the reward styled salvage.
Salvage-Servitium. - To encourage enterprise and reward success in this perilous undertaking, it is deemed but just to give the recaptor some pecuniary reward for his successful exertions. This recompense, termed military salvage, as distinguished from civil salvagethe reward given to those who rescue a vessel or cargo from loss, other than capture by an enemy-is regulated
1 The Helen, 3 Rob. p. 226.
3 • Salvage, allowance or compensation made to those by whose exertions ships or goods have been saved from the dangers of the seas, fire, pirates, or enemies. This was allowed by the laws of Rhodes, Oleron, and Wisby, and is by all modern maritime States. At Common Law the person who saves goods from loss or imminent peril, has a lien upon them, and may retain them till payment of salvage. If the salvage be performed at sea, or within high or low water mark, the Court of Admiralty has jurisdiction, and fixes the sum to be paid, adjusts the proportions, and takes care of the property pending the suit; or, if necessary, directs a sale, and divides the proceeds between the salvors and the proprietors. In fixing the rate of salvage, the Court has regard not only to the labour and peril of the salvors, but also to the situation in which they stand to the property saved, to the promptitude and alacrity manifested by them, and the value of the ship and cargo, and the danger from which they were rescued. In some cases, as much as half of the property saved has been allowed as salvage; in others only a tenth.
•The crew of a ship are not entitled to salvage or any unusual remuneration for extraordinary efforts made by them in saving her, it being their duty as well as interest to contribute their utmost upon such occasions, the whole of their possible service being pledged to the master and owners. Neither are passengers entitled to anything for the ordinary assistance they may have afforded a vessel in distress. But a passenger is not bound to remain on board a ship in danger, if he can leave her; and if he performs any extraordinary service he is entitled to a proportionable recompense. Wharton's Law Lexicon; see 17 & 18 Vic. c. 18; also 17 & 18 Vic. c. 104, $$ 548—470,484–498, and 18 & 19 Vic c. 91 §§ 19, 20; and as to salvage in the Cinque Ports, see 1 & 2 Geo. IV., c. 76, §§ 1-5, 15—18; 17 & 18 Vic. c. 104, § 460; and 17 & 18 Vic. c. 120, schedule.
by the value of the ship or cargo, and is paid by the owner of the property thus rescued. The rate of salvage is either ascertained by positive law, or is left to the discretion of the Court. The Court may award both military and civil salvage to the same person when the facts of the case warrant it. The present British law of military salvage was established by the statutes of the 43 Geo. III. c. 160, and 45 Geo. III. c. 72, which provides (sec. 7) that any vessel, or goods therein, belonging to British subjects, and taken by the enemy as prize, which shall be retaken, shall be restored to the former owners upon payment for salvage of oneeighth part of the value thereof, if retaken by His Majesty's ships ; and if retaken by any privateer, or other ship or vessel under His Majesty's protection, of one-sixth part of such value. And if the same shall have been retaken by the joint operation of His Majesty's ships and privateers, then the proper Court shall order such salvage to be paid as shall be deemed fit and reasonable. But if the vessel so retaken shall appear to have been set forth2 by the enemy as a ship of war, then the same shall not be restored to the former owners, but shall be adjudged lawful prize for the benefit of the captors. A Prize Act is however passed at the beginning of every war.3
1 Wheaton, p. 668.
? A vessel has been held to be set forth as a vessel of war, where, after the capture, she had been fitted out as a privateer, although when recaptured she was again navigating as a mere merchant ship, (L'Actif, Edwards' A. R., p. 185);-50, where it appeared that the vessel had been engaged in the military service
of the enemy under the direction of the commander of a single ship, (The Georgiana, 1 Dodson's A. R., p. 397);—So, where the vessel was armed, and employed in the public military service of the enemy by those who had competent authority so to employ it, although it was not regularly commissioned, (The Ceylon, 1 Dodson's A. R., p. 105). See Wheaton, p. 663 et seq.
3 See 17 Vic. c. 18, $$ 9, 10.
To entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture; for military salvage will not be allowed in any cases where the property has not been actually rescued from the enemy. But it is not necessary that the enemy should have actual possession; it is sufficient if the property is completely under the dominion of the enemy. If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil, and not of military, salvage. But to constitute a recapture, it is not necessary that the recaptors should have a bodily and actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor.? If a convoying ship recaptures one of the convoy which has been previously captured by the enemy, the recaptors are entitled to salvage.3
In respect to recaptures of the ships and cargoes of allies or co-belligerents from the hands of the common enemy, the general rule is to apply the principle of reciprocity; and if they, under like circumstances, restore on salvage, or condemn generally, to deal out to them the same measure of reciprocal justice. If there should exist a country having no rule on the subject, then the recapturing country applies its own rule, as to its own subjects, to the case, and rests on the presumption that the same rule will be administered in the future practice of the other party.* The rule adopted by our own maritime law is to restore on salvage to allies ; but if instances can be given of British property retaken by them and condemned as prize, the Court of
1 See Wheaton, p. 664 et seq. for cases quoted; and as to recaptors, see p. 677 et seq.
2 Phillimore, vol. iii. p. 524, where see cases quoted.
Admiralty will determine their cases according to their
. Having established-(1) That it is the duty of cobelligerents to rescue each other, when possible, without payment, from the enemy; (2) that it is their duty to rescue the property of their fellow citizens, and that of the subjects of their co-belligerents similarly situated, in which case they become entitled to the reward termed salvage; and that the right of salvage arises from the fact of the rescued property being, at the time of its rescue, the property of a fellow citizen,-we have to inquire by what, if any, fact, property captured by the enemy ceases to belong to the original owner, and, by becoming the property of the enemy, entitles the fellowcitizen of the original owner to regard his seizure of it as a capture, making it his prize, instead of a mere recapture entitling him only to salvage. This question involves what is known as the doctrine of postliminy (postliminium).3
Sir W. Scott, 'The Santa Cruz,' 1 Rob. A. R., pp. 58–63. ? Wheaton, p. 657.
3 The jus postliminii was a fiction of the Roman law, by which persons or things taken by the enemy were held to be restored to their former state, when coming again under the power of the nation to which they formerly belonged.
Grotius attests, and his authority is supported by that of the Consolato del Mare, that by the ancient Maritime Law of Europe, if the thing captured were carried infra præsidia of the enemy, the jus postliminii was considered as forfeited, and the former owner was not entitled to restitution. (Wheaton, p. 653.) At a later period, possession by the enemy for a period of twenty-four hours, was considered sufficient to change the property. “The rule,' says Sir Travers Twiss, “that the continuous possession of a ship and cargo on the part of the enemy for twenty-four hours should debar the original owner of the jus postliminii- in other words, should deprive him of all right to reclaim possession of his former ship and cargo, on payment of military salvage to the recaptor–or, as Bynkershoek terms it, salvo servatio, seems to have been borrowed from the Laws of the Lombards.' (Law of Nations—War, p. 342.)
To work this change in the character of a ship and cargo, 'the Law of Nations now requires,' says Lord Stowell, 'a sentence of condemnation in a competent court decreeing the capture to have been rightly made jure belli : it not being thought fit in civilized society, that property of this sort should be converted without the sentence of a competent court, pronouncing it to have been seized as the property of an enemy, and to be now become, jure belli, the property of the captor. The purposes of justice require that such exercises of war shall be placed under public inspection, and therefore the mere deductio infra præsidia has not been deemed sufficient.'l Till, therefore, a vessel and her cargo, taken by the enemy, have been condemned by the enemy's properly constituted prize tribunal to be a lawful prize, its recapture only entitles the recaptor to salvage. After such condemnation, however, the recapture would be in fact a capture, and, as such, would entitle the captor, not to salvage, but to the whole or his share as prize of war.
Private Contracts with Enemy.-A declaration of hostilities naturally carries with it an interdiction of all commercial intercourse; therefore every species of private contract made with the enemy, or his subjects, during the war, is unlawful. When one State only is at war, this interdiction may be relaxed, as to its own subjects, without injuring any other State; but when allied nations are pursuing a common cause against a common enemy, there is an implied, if not an express contract, that neither of the co-belligerent States shall do anything to defeat the common object.
Neutral's Property.—Having considered the effect of war upon the property, real and personal, of the belli
1 See Twiss, Law of Nations—War, p. 348. 2 Wheaton, p. 556.