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The rate has fluctuated and varied according to circumstances.

Formerly the rule was inflexible, and seldom departed from, to allow the owners of salving sailing-vessels one third. And this rule is supposed to have been acted upon in the early American cases of The Mary Ford (3 Dall. 188), and The Blaireau, (2 Cranch, 256).

But since the application of steam as a motive power, and the consequent construction of large steamers for transporting property and passengers, the old rule ceased to be inflexible; is now materially relaxed, and has gradually become obsolete; so that the rate of salvage, generally, is much enhanced both in England and the United States.

As has been stated, Lord Stowell first judicially scanned and admitted the superior merit of large steamers over wrecking and the ordinary tug boats; and in The Earl Grey (3 Hagg. 363), first innovated upon the then existing rule by awarding to the owners of the steamer Monarch, more than one third of the salvage. A like relaxation and modification of the rule is perceptible in The Raikes, 1 Hagg. 245 (1824); The Beulah, 1 W. Rob. 477; The William Beckford, 3 Ch. R. 355; The Albion, 3 Hagg. 254 (1835); The Graces, 2 W. R. 294 (1844); The Haidee, 1 Notes of Cases, 598 (1842); The Medora, 5 ibid. 294 (1845); The Alfin, Swab. 193 (1857); The Kinglock, 1 Spinks, 267 (1864); and the American cases, 3 Dall. 188, 2 Cr. 256; Brig Cora, 2 Wash. C. C. 80 (1827); The Henry Ewbank, 1 Sum. 400; 1 Am. L. Reg. 554, The William Penn; and in the still more recent case of The C. W. Ring, in 2 Am. L. Rev. 259.

In the Earl Grey, Lord Stowell allowed the owners

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one half for their proportion; in the William Penn, Mr. Justice Wayne allowed about five sevenths; and in the C. W. Wing, the owners were allowed three fifths of the awarded salvage.

Having cited the Mary Ford, otherwise McDonough v. Danery, as an early illustration and authority of the one-third rule, it is proper to state that case more fully, in order more correctly to appreciate its value as an authority. As I understand the report, the case was manifestly a mis-trial in the District Court. Substantially the facts are, that the Mary Ford, a British ship, was captured in 1794, by the fleet of Commodore Vil Manderine, under the French Republic, in mid-ocean, where she was abandoned by the captors the day after the capture; and in that situation was fallen in with by the American ship George, manned out by part of the American crew, and brought safely into Boston harbor; there libelled in the District Court by William Foster and others in behalf of the owners and crew of the George; ship and cargo sold, by consent of parties, at an excess of $8,241.43 over the appraisement of $35,986.27; and the whole proceeds of the sale, $44,227.70, less costs and charges, held to abide the decision and award in behalf of the finders and intervening claimants. The resident British Consul, Thomas McDonough, intervened for the British owners; and T. B. Thomas Danery intervened for the captors, as resident consul of the French Republic; McDonough and Danery thus being the nominal parties.

The District Judge, John Lowell, allowed as salvage for all the libellants one third part of the gross proceeds; and two thirds of the salvage was awarded to the owners; but did not make any decree as to the resi

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due, except that it was to remain for British owners or others deriving right thereto.

An appeal was claimed to the Circuit Court by the French consul Danery, there heard, and Mr. Justice Cushing gave judgment in favor of the French Republic and those concerned in the capture.

And by appeal, the case was carried up to the United States Supreme Court, there argued for the British owners and French captors; but no one appeared for the original libellants, the owners and crew of the salving ship. In the Appellate Court, it was substantially determined that the British owners were divested, by capture, of their property and rights in the ship; that the captors had sufficient firm possession of their prize; but afterward voluntarily abandoned the Mary Ford, leaving her a derelict ship at sea; that the district judge, having rightfully exercised jurisdiction of salvage, might, with equal propriety, have adjudicated upon the residue, and awarded it, in whole or part, to the libellants. But the owners and crew, not having formally appealed, they were not strictly before the Appellate Court as parties. Wherefore, the Supreme Court declined to disturb the decree, or change the proportion or award in any respect; but strongly intimated, however, that no right revived by postliminy to the British owners, in consequence of the abandonment by the captors, because there was no recapture.

The brief opinion of the court was as follows: BY THE COURT. We are all unanimously of opinion the District Court had jurisdiction upon the subject of salvage; and that, consequently, they (it) must have power of determining to whom the residue of the property ought to be delivered.

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"In determining the question of property, we think, that immediately on the capture, the captors acquired such a right as no neutral nation could justly impugn or destroy; and, consequently, we cannot say, that the abandonment of the Mary Ford, under the circumstances of the case, revived or restored the interest of the original British owners.

"Some doubts have been entertained by the court, whether, on the principles of an abandonment by the French possessors, the whole property ought not to have been decreed to the American libellants; or, at least, a greater portion of it, by way of salvage; but, as they have not appealed from the decision of the inferior court, we cannot now take notice of their interest in the cause.

"Upon the whole, let the decree be affirmed."

By an inspection of the original record it appears that the owners really received two thirds of the amount awarded as salvage. The case, therefore, of McDonough v. Danery is not and ought not to be cited as an authority for the old rule of awarding to the owners one third of the salvage reward for their ship's claim and service.

But the conceded claim of owners to share in salvage, at the present day, is established by a series of cases, many of which have already been referred to and others will be cited hereafter.

In 1844, Dr. Lushington, in delivering his judgment in the Graces, said: "To render assistance to vessels in distress is an ingredient in awarding remuneration."

In 1857, in the Alfen, the same judge looked with favor upon steamers salving vessels aground, because of the celerity and efficiency with which the service is performed.

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In 1864, the same experienced judge in admiralty declared in the Kinglock: "The principle I have always endeavored to follow is this, that where steamers render salvage service they are entitled to a greater reward than other set of salvors, who render the same service; and for this plain reason: in consequence of the power they possess, they can perform such services with infinitely greater celerity than any other vessels, with infinitely greater safety to the vessel in danger, and frequently under circumstances in which no other assistance could by possibility prevail."

Thus, by a process called by the civilians a species of novation, the claim of owners, in behalf of their ship when employed in salvage service, is delegated, subrogated or substituted for what might otherwise be the claim of an active, living, and volunteering crew, who personally incurred the peril and contributed to or participated in the exertions and service requisite to constitute them legal salvors and entitle them to salvage remuneration.

This is not only technically a sound principle, but it will be seen by the authorities cited, that the principle is now incontestably the established law in admiralty, by the courts of England and the United States.

In the Norden (1 Spinks, 185), it was held that smacksmen, like steamers, may become salvors. In the Collier (1 Adm. & Eccl. Rep. 83), that an owner of a salving steamship, though also charterer of a salved. sailing-ship, was not barred by the fact that owner and charterer were one and the same persons.

In the Elizabeth and Jane (Ware, 39-40), in a decree of salvage, the captain, who was also owner of the Merit, was awarded his share as master, and also his share as owner.

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