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of vessels in
as basis of sal
demnation in an enemy's port, if that condemnation be subsequently overruled by an order of release from the sovereign power of the state, the right to salvage is revived under the recapture.1
It is a familiar principle in the law of capture, as sight applied We have seen, that vessels of war in sight at the to recaptures time of the capture, are entitled to share in its vage claim. benefits. The same principle is applied to the right of salvage in the case of recapture. National ships in sight are regarded as joint-captors. There is a reciprocity in the rule which operates sometimes to the advantage, and sometimes to the disadvantage, of every vessel in the service.
made by na
But privateers in sight, when a recapture is made in sight when by a national vessel, are not allowed to share. And hence the rule of reciprocity not existing as between tional ship. privateers and national vessels, where a recapture is made by a privateer, a national vessel being in sight, the national vessel is not permitted to share.
"It would be hard," says Lord Stowell, in a case where the question incidentally arose, “if the pri vateer, being the actual captor, and not having that reciprocal interest in other cases, 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 the court, that the interposition of the privateer was not fraudulent. It was not the case of a pri The Charlotte Caroline, 1 Dod., 192.
vateer 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 endeavor 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."1
ters entitled as
Revenue cutters have been held to be entitled Revenue-cutto salvage on recapture, in like manner as private private ships. ships of war.2
tributes to sal
Whether freight should be made to contribute Freight conto the salvage in case of a recapture, depends upon vage when the question 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 subsequently accomplished, the entire freight is included in the valuation of the property on which salvage is granted.
Where the vessel has never been in the actual and bodily possession of the recaptor, no salvage is earned. And in order to entitle to salvage as upon a recapture, the property must have been in
1 The Wanstead, 1 Edwards, 369; The Providence, ib., 270; The Dorothy Foster, 6 Rob., 88.
The Bellona, Edwards 63; The Sedulous, 1 Dodson, 253.
The Edward and Mary, 3 Rob., 305.
Salvage due from neutrals.
the actual or constructive possession of the enemy. Salvage is not allowed merely for stopping a ship going into an enemy's port.1
As a principle of international law, military salvage is due from neutrals; and in cases of restitution of the recaptured property of neutrals, the courts are at liberty to assess such rates of compensation as, in their judgment, are demanded by the nature of the service and the circumstances of the particu lar case, and are not limited to the rates fixed by the statutes, which apply only to the restitution, upon recapture, of the property of the subjects of the nation of the recaptors.2
Where the property of a neutral is taken as a prize by the enemy, and recaptured by the adverse belligerent, the probability of its condemnation, had it reached the port and been subjected to the action of the courts of the country of the captors, is to be considered in determining the question of salvage. If there is no ground for supposing that a restitution would not have been ordered, then it is to be restored on the recapture, without the pay. ment of salvage.
Salvage was usually allowed upon the recapture by British vessels of neutral property taken by French cruisers in the last war, because there was reason to apprehend that such property would, in almost all cases, be condemned by the French courts of admiralty; and such assessments of salvage were regarded, under the circumstances, although
The Ann Green and cargo, 1 Gallison, 293.
an exception to the general rule, as reasonable and just by the neutral merchants.1
statute in Great Britain.
under the law
When a lawful belligerent had become possessed, by lawful means, of the property of the enemy, it was an ancient custom, of almost every nation, to redeem it from his possession by the payment of ransom. The contract of ransom has fallen greatly into disuse; and by statutes in Great Britain,2 ransoms are expressly prohibited under severe penalties. They are spoken of by Lord Stowell, in the case of the ships taken at Genoa, as subject to great abuse, being, in the common acceptation, contracts entered into at sea by individual captors, and liable to be abused, to the great inconvenience of neutral Valid contract trade. But ransoms, under circumstances of ex- of nations treme necessity, are yet allowed; and a ransom hibited by bill, when not prohibited by express statute, is a war contract, protected by good faith and the law of nations. Although the contract of ransom is considered in England as tending to relax the energies of war, and to deprive cruisers of the opportunities of recapture, yet "it is, in many views," says Chancellor Kent, "highly reasonable and humane. Other maritime nations regard ransom as binding, and to be classed among the few commercia belli." Ransom has not been prohibited by any law of Not prohibited
1 The Eleanor Catherina, 4 Rob., 156; The Waronskan, 2 Rob., 299; The Carlotta, 5 Rob., 54; The Huntress, 6 Rob., 104; The Samson, 6 Rob., 410; The Barbara, 3 Rob., 171; Abbot on Shipping, Part III., c. xi., § 13.
* 43 Geo. III., c. c.; 45 Geo. III., c. lxxii.; 22 Geo. III. c. xxv. * Kent's Com., 114; vide also Azuni's Maritime Law, c. iv., art. 6; Emerigon, I., c. xii., § 21; Valin XI., art. 66; Le Guidon, c. vi., art. 2; Grotius, Lib. III., c. xix.
when not pro
in the United the United States, and has been recognized as a valid contract by the courts of that country, as well as of France and Holland. The effect of the ransom is equivalent to that of a safe conduct granted by the authority of the state of the captor; and it is binding upon the commanders of other cruisers of the belligerent nation, as well as upon those of an allied nation, by the implied obligation of the treaty of alliance. The protection of the ransomed vessel is, however, limited to the time, as well as to the course or localities prescribed by the contract, unless, by stress of weather or unavoidable neces sity, the time has been exceeded, or the course departed from.
The captor who releases his capture on ransom, does not become the insurer of the property, except against recapture by cruisers of his own nation or allies. Therefore, if the ransomed vessel be wrecked before she arrives in port, the ransom bill is nevertheless due.
If the captor, having the ransom bill on board his vessel, should himself be captured by the enemy, the ransom becomes part of the lawful conquest of the enemy, and is discharged.
These principles are laid down by the elementary writers, and have been frequently recognized and applied by the courts of the United States.
Pothier, Traite du droit de proprieté, Nos. 134, 135, 138, 139; Valin, Ord. des Prises, art. 19.
"Goodrich vs. Gordon, 15 Johns. R., 6; Miller vs. The Resolution, 2 Dallas, 15; The Lord Wellington, 2 Gallison, 104; Maissonnaire et als. vs. Keating, 2 Gall., 336; Gerard vs. Hare, Peters's C. C. R., 142; Moodie vs. Brig Harriet, Bees. R., 128.