Page images

held to intend: first, a sentence by a court of competent jurisdiction, and second, a sentence of such court either in the country of the enemy or an ally, and not in a neutral country.

right of post

The right of postliminium terminates by the Termination of declaration of peace, between the country of the liminium. enemy and that from which the prize was taken. Therefore, it has been held, that a ship which has been sold to a neutral, after an illegal condemnation by a prize court, and which would not have been considered as a valid transfer of a legal title in time of war, by the intervention of peace, was to be deemed a legitimate possession in the neutral's hands, and cured of all defects of title. "Otherwise," observed Lord Stowell, "it could not be said that the intervention of peace would have the effect of quieting the possessions of the enemy, because if the neutral possessor was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him; and as to a renewal of war, though that may change the relations of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before."1

Where a transfer has been made in good faith by a hostile captor to a neutral, at the time of the assignment, the title of the assignee will not be affected by his subsequently becoming an enemy.2

The rules which have been stated are those which, by the general law of nations, govern the right of

The Sophie, 6 Rob., 142.

The Purissima Conception, 6 Rob., 45.

The right of postliminium

of the United States.

postliminium, and are considered of binding force where the interests of neutrals are concerned. Ir cases, however, affecting only the citizens or subjects of the nation, some peculiar modifications of the general principle have been introduced by special statute provisions, both in England and in the United States.

By acts of Parliament' it is provided that the right of postliminium, as between British subjects, shall continue even to the end of the war; and, therefore, the ships or goods of the subjects of that country, taken at sea by an enemy, and afterward retaken at any indefinite period of time, and whether before or after a sentence of condemnation, are to be restored to the original proprietors. An excep tion, however, is made as to ships which the enemy have set forth as vessels of war; these are not sub ject to restoration to the original owners, but belong wholly to the recaptors. But if the property recaptured was, at the time of the original capture, employed in an illegal trade, this works a divesting of the original right, and the former owner will not be admitted to restitution from the recaptors.


The United States government, by act of Conby the laws gress, expressly continues the jus postliminii, until a divesting of the title to captured property by a sentence of condemnation. It also directs a restitution of recaptured property to the foreign and friendly owner on the payment of reasonable salvage. But the provisions of the law are declared


13 Geo. II., c. iv.; 17 Geo.II., c. xxxiv.; 19 Geo. II., c. xxxiv.; 43 Geo. III., t. clx.; 2 Burr., 1198; 1 Black. Rep., 27.

2 The Walsingham Packet, 2 Rob., 77.

March 3d, 1800, U. S. Laws.

not to apply where the property has been condemned as prize by a competent court, before recapture, nor when the foreign government would not restore the goods or vessels of citizens of the United States, under the like circumstances. This last provision of the statute law of the United States is understood to be the rule in England. In a case involving the right of postliminium between the subjects of Great Britain and her allies,1 Lord Stowell says: "The actual rule I understand to be this: that the maritime law of England having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act toward British property on a less liberal principle. In such a case, it adopts their rule, and treats them according to their own measure of justice."

of salvage on


The obligation of recaptors to restore the property General right to the original owner, is, as a general rule, connected restitution by with the right on their part to be paid a compensation or reward given for saving or recovering the property and this is denominated salvage; and to distinguish it from the ordinary salvage known to the commercial law, it is called military salvage. The extent of this compensation is usually fixed Rate of comby legislative enactments, and the rates vary with varying circumstances, and in some cases the amount is within the uncontrolled discretion of the court.2

The Santa Cruz, 1 Rob., 49; vide also The San Francisco,

1 Edwards, 279.

[ocr errors]

The Dickenson, Hay and Mariott, 48; The Betsy, ib., 81; The Two Friends, 1 Rob., 279.


Right of salvage attaches

cases of res


To sustain a claim for military salvage, there must be first, a lawful original capture; and second, a meritorious service in effecting a recapture.

The right of military salvage is not limited to as well to cases of recapture, it is extended equally to the cue as of re- case of the recovery of captured property by res cue; this, however, is confined to the rescue, strictly so called—that is, to the rescue effected by the rising of the captured party and the recovery of the property after the capture has become complete, and the possession of the enemy virtually absolute. Salvage is never awarded in cases of rescue by the arrival and assistance of a fresh succor, before the property has been subjected to the possession of the enemy.

"No case has been cited," says Lord Stowell, "and I know of none in which military salvage has been given, where the property rescued 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 of the enemy.1

In principle, the actual performance of the ser vice of recapture, is sufficient to establish the claim for salvage, even though it were not the primary intention, or in the immediate contemplation of the recaptors to perform the service and effect the recov ery.2

No commis- As no commission or letter of marque is requi for recapture, site to the performance of the service of recapture,

sion requisite



The Franklin, 4 Rob., 147. The Progress, Edwards, 211.

so, of course, the recaptors are entitled to salvage, therefore not whether acting with or without a commission.1

requisite to entitle to sal


due to a na

of another na

Salvage is not due to a national vessel for the Salvage not service performed by a recapture from the enemy, tional vessel of another vessel employed in the public service. on recaptur This rests upon the obvious principle that the per- tional vessel. formance of such a service is not only the duty and obligation of the vessel-of-war, but is in the direct line of the business to which it is devoted on behalf of the nation, and does not differ in principle from the service rendered by one ship of war to another in battle.2

need be en

entitle to sal


In order to entitle the recovering party to sal- No hazard vage, it is not essential that any risk should have countered to been encountered in the service. Therefore, a claim to military salvage is due where a vessel taken by the enemy is purchased at sea, and brought into port for restoration to the owner.


aiding in a

It has been held, that where a vessel of the enemy Every person is taken by the adverse belligerent, lost again by a rescue has a cruiser of the enemy, and subsequently recaptured, the recaptors are entitled to the entire property.*

Every person aiding and abetting and assisting has a lien on the thing saved. He has his action in personam, also, to recover for his meritorious service, but his first and proper remedy is in rem.

In the case of a recapture, where the property is again taken by the enemy, and followed by con


The Helen, 3 Rob., 224; The Urania, 5 Rob., 148; The Progress, Edwards, 211; The Hope, Hay & Marriott, 216.

The Belle, Edwards, 66.

3 The Henry, Edwards, 162.

* The John and Jane, 4 Rob., 217 and note.

lien for sal


« PreviousContinue »