Page images
PDF
EPUB

has the same provisions with the French in cases of captured property becoming derelict, or reverting to the possession of the former owners by civil salvage. (a)

law.

Portuguese Portugal adopted the French and Spanish law of recaptures, in her ordinances of 1704 and 1796. But in May, 1797, after The Santa Cruz was taken, and before the judgment of the English High Court of Admiralty was pronounced in that case, Portugal revoked her former rule by which twentyfour hours possession by the enemy divested the property of the former owner, and allowed restitution after that time, on salvage of one eighth, if the capture was by a public ship, and one fifth if by a privateer. In The Santa Cruz and its fellow cases, Sir W. Scott distinguished between recaptures made before and since the ordinance of May, 1797; condemning the former where the property had been twenty-four hours in the enemy's possession, and restoring the latter upon payment of the salvage established by the Portuguese ordinance.

The ancient law of Holland regulated restitution on Dutch law. the payment of salvage at different rates, according to the length of time the property had been in the enemy's pos session.1

Danish law.

The ancient law of Denmark condemned after twentyfour hours possession by the enemy, and restored, if the property had been a less time in the enemy's possession, upon payment of a moiety of the value of salvage. But the ordinance of the 28th March, 1810, restored Danish or allied property without regard to the length of time it might have been in the enemy's possession, upon payment of one third the value.

Swedish

By the Swedish ordinance of 1788, it is provided, that law. the rates of salvage on Swedish property shall be one half the value, without regard to the length of time it may have. been in the enemy's possession.

(a) [There is a special treaty on the subject of recapture between England and Spain, concluded 5th February, 1814, which fixes the salvage at one eighth when the recapture is made by a ship of war, and one sixth by a privateeer, or jointly by a privateer and ship of war. The restoration is made without reference to the time that the ship has remained in the captor's hands, or whether it has been brought into the port of the captor or been condemned. Hautefeuille, Droit des gens neutres, tom. iv. p. 413.]

[blocks in formation]

stitutes a setting forth as a

of

What constitutes a setting forth as a vessel of war What conhas been determined by the British Courts of Prize, in cases arising under the clause in the act of Parliament, which may serve for the interpretation of our own law, war," under the prize as the provisions are the same in both. Thus it has act." been settled, that where a ship was originally armed for the slave-trade, and after capture an additional number of men were put on board, but there was no commission of war, and no additional arming, it was not a setting forth as a vessel of war under the act.1 But a commission of war is decisive if there be guns on board. And where the vessel, after the capture, has been fitted out as a privateer, it is conclusive against her, although when recaptured, she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no further, but considered the title of the former owner forever extinguished. Where it appeared that the vessel had been engaged in the military service of the enemy, under the direction of his minister of the marine, it was held as a sufficient proof of a setting forth as a vessel of war. So where the vessel is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ it, although it be not regularly commissioned.5 But the mere employment in the enemy's military service is not sufficient; but if there be a fair semblance of authority in the person directing the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as commander of a squadron.

by a con

It is no objection to an allowance of salvage, or a Recapture recapture, that it was made by a non-commissioned commisvessel; it is the duty of every citizen to assist his fel- vessel.

sioned

1 Robinson's Adm. Rep. vol. vi. p. 320. The Horatio.

2 Dodson's Adm. Rep. vol. i. p. 105. The Ceylon.

3 Edwards' Adm. Rep. 185. The Actif.

4 Robinson's Adm. Rep. vol. iii. p. 65

5 Dodson's Adm. Rep. vol. i. p. 105. The Ceylon.

* Dodson's Adm. Rep. vol. vol. i. p. 397. The Georgiana.

low citizens in war, and to retake their property out of the enemy's possession; and no commission is necessary to give a person so employed a title to the reward which the law allots to that meritorious act of duty.1 And if a convoying ship recaptures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage.2 But a mere rescue of a ship engaged in the same common enterprize gives no right to salvage.3

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 case 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. Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are not entitled to restitution on paying salvage, but the last captors are entitled to the whole rights of prize; for, by the first recapture, the right of the original captors is entirely divested.8 Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property.

But

The Helen.

The Wight.
The Belle.

The Franklin.

The Edward and Mary. Edwards'

1 Robinson's Adm. Rep. vol. iii. p. 224. 2 Robinson's Adm. Rep. vol. vi. p. 315. 3 Edwards' Adm. Rep. vol. i. p. 66. 4 Robinson's Adm. Rep. vol. iv. p. 147. 5 Robinson's Adm. Rep. vol. iii. p. 305. Adm. Rep. vol. i. p. 116. The Pensamento Felix. 6 Robinson's Adm. Rep. vol. iv. p. 147. The Franklin. 7 Robinson's Adm. Rep. vol. iii. p. 305. 8 Robinson's Adm. Rep. vol. iv. p. 217. Note a. Wheaton's Rep. vol. i. p. 125. The Astrea. Valin, sur l'Ord., tom. ii. pp. 257–259. Traité des Prises, ch. 6, § 1. Pothier, de Propriétè, No. 99.

The Edward and Mary.

9 Edwards' Adm. Rep. vol. i. p. 79. The Lord Nelson. Dodson's Adm. Rep vol. i. p. 404. The Diligentia.

if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived. And where the enemy has captured a ship, and afterwards deserted the captured vessel, and it is then recaptured, this is not to be considered as a case of derelict; for the original owner never had the animus delinquendi, and therefore it is to be restored on payment of salvage; but as it is not strictly a recapture within the prize act, the rate of salvage is discretionary.2 But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the act.3 Where the captors abandon their prize, and it is afterwards brought into port by neutral salvors, it has been held that the neutral Court of Admiralty has jurisdiction to decree salvage, but cannot restore the property to the original belligerent owners; for by the capture, the captors acquired such a right of property as no neutral nation can justly impugn or destroy, and, consequently, the proceeds, (after deducting salvage,) belong to the original captors; and neutral nations ought not to inquire into the validity of a capture between belligerents. But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled to a remuneration as salvors; but after deducting salvage, the remaining proceeds will be decreed to the original owner. And it seems to be a general rule, liable to but few exceptions, that the rights of capture are completely divested by a hostile recapture, escape, or voluntary discharge of the captured vessel. And the same principle seems applicable to a hostile rescue, but if the rescue be made by the neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which involves the penalty of confiscation, would be held, in the prize courts of the captor's country, to divest his original right in case of a subsequent recapture.

I Wheaton's Rep. vol. ii. p. 123. The Mary.

2 Robinson's Adm. Rep. vol. iv. p. 216. The John and Jane. 3 Robinson's Adm. Rep. vol. vi. p. 273. The Gage. 4 Dallas' Rep. vol. iii. p. 188. The Mary Ford. 5 Cranch's Rep. vol. viii. p. 227. 6 Cranch's Rep. vol. iv. p. 293. Dodson's Adm. Rep. vol. i. p. 404.

The Adventure.

Hudson v. Guestier, vol. vi. p. 281. S. C.
The Diligentia.

As to recaptors, although their right to salvage is extinguished by a subsequent hostile recapture and regular sentence of condemnation, divesting the original owners of their property, yet if the vessel be restored upon such recapture, and resume her voyage, either in consequence of a judicial acquittal, or a release by the sovereign power, the recaptors are redintegrated in their right of salvage.1 And recaptors and salvors have a legal interest in the property, which cannot be divested by other subjects, without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them without cause.2

In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the court, as well upon recaptures as in other cases. And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, the court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary services in rescuing the vessel in distress from the perils of the seas.4

§ 13. Validity of

captures,

The validity of maritime captures must be determined maritime in a court of the captor's government, sitting either-in determined his own country or in that of its ally. This rule of in the courts jurisdiction applies, whether the captured property be tor's coun- carried into a port of the captor's country, into that of an ally, or into a neutral port. (a)

of the cap

try. Condemnation of property lying in the ports of an ally.

Respecting the first case, there can be no doubt. In the second case, where the property is carried into the

1 Dodson's Adm. Rep. vol. i. p. 192. The Charlotte Caroline.

2 Ibid. p. 414. The Blendenhale.

3 Cranch's Rep. vol. i. p. 1. Talbot v. Seeman. Robinson's Adm. Rep. vol. iii. p. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

4 Dodson's Adm. Rep. vol. i. p. 317. The Louisa.

(a) [The Supreme Court decided, that condemnations by Prize Courts in California, of vessels and cargoes seized and brought in there, during the war between the United States and Mexico, were not sustainable under the law of nations or the Constitution of the United States, though these tribunals were established with the sanction of the Executive Department of the government. The

« PreviousContinue »