was not in the possession of the enemy, or so nearly as to be certainly and inevitably under his grasp. There has been no case of salvage where the possession, if not absolute, was not almost indefeasible, as where the ship had struck, and was so near as to be virtually in the hands and gripe of the enemy." When the rescue is of the other description, that is to say, when it is effected by the rising of the captured crews against the captors, a salvage is given. (The Two Friends, 1 Rob. 271.)

It is not necessary, in point of principle, for the establishment of a claim of salvage, that it should have been primarily the intention of the captor to recover the property. It might not have been in his immediate contemplation, perhaps, nor even within his knowledge; and yet if the service performed-if the recovery of the property is the immediate and necessary result of what he has done, he will be entitled to salvage. (The Progress, Edw. 211.)

In cases of recapture, no letter of marque from the sovereign is required to give to the recaptor the benefit of the same salvage to which he would have been entitled, if he had been provided with letters of marque. (The Helen, 3 Rob. 224; The Urania, 5 Rob. 148; The Progress, Edwards, 215; The Hope, Hay & Marriott, 216.)

Salvage is not due to a man-of-war for rescuing from the enemy a hired transport employed in the same expedition. This case rests on the same principle as that of assistance afforded by one vessel to another in battle, -the principle of mere duty. (The Belle, Edw. 66.) Salvage is given on a vessel purchased at sea from the enemy, for the purpose of returning her to the owner,

for it is not necessary that the recovery of property should be attended with personal risk to the salvor. (The Henry, 162.) Every person assisting in rescue has a lien on the thing saved. He has an action in personam also; but his first and proper remedy is in rem ; and his having the one is no argument against his title to the other. There is one species of recapture which vests the whole interest in the recaptors, namely, that of an enemy's vessel taken by one English vessel, lost again by an enemy's cruizer, and subsequently re-captured by another English ship. (The John and Jane, 4 Rob. 217, note.)

The master and crew, in case of merchant ships, are, in strict language, the only salvors. The owners have in general no great claim; as to labour and danger, none. They come in only under the equitable consideration of the court for damage or risk, which their property might have incurred. (The San Bernardo, 1 Rob. 178.)

The right of salvage on recapture is not extinguished by subsequent capture and condemnation in an enemy's port, when the sentence condemning the property is over-ruled by an order of release from the sovereign power of the state. (The Charlotte Caroline, 1 Dod. 192.)

Where a recapture is made by a king's ship, all other king's ships in sight are permitted to come in as joint salvors. There is a reciprocity in this rule which operates sometimes to the advantage and sometimes to the disadvantage of every vessel in the service. Not so where a recapture is made by a king's ship in sight of a privateer; in that case there is no reciprocity, as the privateer is not permitted to share. It would be

hard, therefore, if the privateer, being the actual captor, and not having that reciprocal interest in other cases, she should be deprived of a much greater proportion of the reward, and should only share on terms of reciprocity, where the king's ship is only the constructive recaptor, from the mere accident of being in sight, perhaps at a great distance and unconscious of the fact. Now, what are the circumstances of the present case? It did appear to me, on the evidence offered to the court, that the interposition of the privateer was not fraudulent. It was not the case of a privateer stepping in at the end of a long chase, perhaps, to deprive the king's ship of the due reward of her own activity and enterprise. Here it was clear that both were in actual pursuit of the enemy. It was not a constructive recapture on either side; there was a concurrence of endeavour in both, though the privateer came up first and struck the first blow. Considering them both, therefore, as joint actual recaptors, I see no reason why I should take the case out of the common operation of that principle which apportions the reward to the parties according to their respective forces." (The Wanstead, 1 Edwards, 269; The Providence, ib. 270; The Dorothy Foster, 6 Rob. 88.)

Revenue cutters are entitled to salvage on recapture as private ships of war, viz., to one-sixth. (See also The Bellona, Edwards, 63, and The Sedulous, 1 Dodson, 253.) Store ships are held, as to recapture, to be ships of war, and as such only entitled to one-eighth salvage. (The Sedulous, ub. sup.)

In cases of recapture, to make the freight contributary to salvage, the question is, whether the freight was in the course of being earned? In giving freight,

the court does not make separations as to minute portions of it. If a commencement has taken place, and the voyage is afterwards accomplished, the whole freight is included in the valuation of the property on which salvage is given. (The Dorothy Foster, 6 Rob. 88.)

It is no case of salvage when the vessel has never come into the actual and bodily possession of the recaptor. 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.," point to a case attended with the circumstance of an actual possession taken. (The Edward and Mary, 3 Rob. 305.) In order to entitle to salvage, as upon a recapture or escape, the property must have been in the possession, either actual or constructive, of the enemy. Salvage is not allowed merely for stopping a ship going into an enemy's port. (The Ann Green and cargo, 1 Gall. 293.)

Salvage is due, as a principle of international law, from neutrals also. The particular rates, indeed, which our statutes assign are binding only in cases between British subjects; but in cases of restitution to the subjects of other states it has been usual with our courts to assess such a salvage as the nature of the service performed might reasonably appear to deserve (Marshall, 474), and that assessment is usually, though not necessarily, made according to the British rates. "The character and condition of the person," said Lord Stowell, in The Two Friends (1 Rob. 285), "is a fit circumstance to form a material consideration in distributing the reward, because the nature of a reward

carries with it a necessary reference to the rank and circumstances of the person rewarded."

There is exemption from salvage, where the property of a nation not engaged in hostility with the enemies of this country, happens to be taken as prize by them, and retaken out of their hands by British subjects; here the probability of its condemnation in the courts of the country of the captors is to be considered; and unless there appears to be ground, on which it may be supposed that it would have been condemned in those courts, it is to be restored without the payment of any salvage. In the last war, the conduct of the cruizers and prize courts of France, having given reason to apprehend that neutral property, arrested by the former on the high seas, would, in almost all cases, be condemned by the latter, salvage was usually allowed to the recaptors of neutral property out of the hands of the French by our Court of Admiralty, and such allowance was not thought unreasonable by the neutral merchants. But this was treated as an exception to the general rule, founded on particular circumstances. (The Eleonora Catherina, 4 Rob. 156; The War-Onskan, 2 Rob. 299; The Carlotta, 5 Rob. 54; The Huntress, 6 Rob. 104; Abbot's Law of Shipping, part 3, c. 11, s. 13; The Samson, 6 Rob. 410; The Barbara, 3 Rob. 171.)