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vage attaches as well to cases of res

capture.

To sustain a claim for military salvage, there must be first, a lawful original capture; and second,

a meritorious service in effecting a recapture. Right of sal- The right of military salvage is not limited 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.

In principle, the actual performance of the service 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.

No commis

As no commission or letter of marque is requifor recapture

, site to the performance of the service of recapture,

| 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.

requisite to entitle to salvage.

due to a na

tional vessel.

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. of another ma This rests upon the obvious principle that the performance 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.?

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.

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

entitle to sal vage.

lien for salvage.

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.

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.

The doctrine of vessels in

vage claim.

Not allowed

recapture made by na

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

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.

But privateers in sight, when a recapture is made to privateers 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 privateer, 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.

ters entitled as

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

Revenue cutters have been held to be entitled Revenue-cutto salvage on recapture, in like manner as private private ships. ships of war.

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

tributes to sal

earned

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 Dorothy Foster, 6 Rob., 88.
4 The Edward and Mary, 3 Rob., 305.

the actual or constructive possession of the enemy. Salvage is not allowed merely for stopping a ship going into an enemy's port.'

Salvage due As a principle of international law, military salvfrom neutrals.

age 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 particular 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.”

Where the property of a neutral is taken as a prize by the

enemy, and recaptured by the adverse helligerent, 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

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

upon

· The Ann Green and cargo, 1 Gallison, 293. • Marshall, 474 ; The Two Friends, 1 Rob., 271.

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