and condemnation in an enemy's port when that sentence is overruled and annulled by the sovereign of the state, and the ship released.1 Salvage was allowed when a ship of war of the United States recaptured from the French a Hamburg ship, France and the United States being then at war, and France and Hamburg neutral as to each other, it being considered that although France and Hamburg were neutral, yet the conduct of the French government showed that the rights of nations would have been violated had the vessel been taken in.2 And when an American vessel was captured by a French privateer, and her master gave a ransom bill, payable only on her arrival in Havana, whereupon she was ordered to Havana with a French prize-master on board, and an English ship captured her and put a prize crew on board, who brought her into her American port, it being apparent that this bill was no longer payable, and was saved to the owner by the recapture, salvage was decreed."

So also, when a captured ship had been abandoned by the captors to go in pursuit of another prize, and it was afterwards found by another vessel in a derelict condition, one half was given to the salvors. When an English privateer, finding enemy's (French) property on board a neutral ship (an American), captured her, and put two men only on board, and the neutral master promised to go into a British port, but he afterwards attempted to go into an enemy's port, and the prize crew besought the aid of another British armed ship, who again captured the neutral, it was held that the first seizure constituted a legal capture, but that the services of the cruiser were sufficient to entitle her to salvage.5 Salvage is allowed in case of a recapture from pirates.

Restoration was decreed without salvage in the following cases. In a case of a capture by a foreign cruiser, which was fitted out in a port of the United States in violation of our neutrality, the

The Charlotte Caroline, 1 Dods. 192.

2 Talbot v. Seeman, 1 Cranch, 1; The War Onskan, 2 Rob. Adm. 299.

* Moodie v. Brig Harriet, Bee, 128.

'The Lord Nelson, Edw. Adm. 79. The question seems to have been considered more as a case of derelict, than as salvage on recapture.

The Resolution, 6 Rob. Adm. 13.

• The Marianna, 3 Hagg. Adm. 206. See also Davison v. Seal-skins, 2 Paine, C. C. 324; The Calypso, 2 Hagg. Adm. 209.

capture being considered as illegal. Nor was salvage allowed for merely stopping a ship from entering an enemy's port, for there can be no salvage for recapture, unless the property has been in the actual or constructive possession of the enemy; 2 and the recaptured ship must come into the actual possession of the recaptors; but in one such case salvage was decreed under the general maritime law, although the case did not come within the English prize act.3

If the vessel does not actually assist in the recapture, she is not entitled to a salvage, as where she is prevented from assisting by becoming becalmed. So also where an American ship was captured by the enemy and condemned, and sold to a subject of the enemy, and afterwards recaptured by an American privateer; because, by the general maritime law, a sentence of condemnation extinguishes the title of the original proprietor.5 So also where an American ship was seized by French custom-house officers, and released on bail, to respond adjudication in the French prize court, and was captured by English ships as she was dropping down the river, on the ground that she was already out of the enemy's hands, and no service was rendered to her. Salvage was not allowed for rescuing a neutral American ship from a belligerent, who arrested her for an alleged breach of treaty or of the law of nations. A neutral vessel can claim no salvage for a recapture from a belligerent, because it has no right whatever to make recapture. But salvage is allowed where the property of friends or

1 The Brig Alerta, 9 Cranch, 359.

The Ann Green, 1 Gallis. 274, 293.

The Edward & Mary, 3 Rob. Adm. 305. The vessel in this case was brought to by a French lugger in a storm, but was not boarded on account of the weather. A British frigate came in sight and captured the lugger, and the vessel escaped and arrived safely in port. The act of Parliament declared that "if at any time afterwards surprised and retaken by any of his majesty's ships of war," etc. This was held to make an actual possession by the recaptors neces

sary.

The Dorothy Foster, 6 Rob. Adm. 88.

The Star, 3 Wheat. 78.

The Robert Hale, Edw. Adm. 265.

Waite v. Brig Antelope, Bee, 233; Talbot v. Seeman, 1 Cranch, 1; The War Onskan, 2 Rob. Adm. 299.

Talbot v. Seeman, 1 Cranch, 1, per Marshall, C. J.

allies is retaken from a common enemy. We have in this country statutory provision for this case.1

If a belligerent is compelled to abandon a prize at sea, and a neutral takes possession, the neutral is entitled to salvage, and the captors, and not the original owners, are entitled to the residue." But if the belligerent voluntarily permits the neutral to take the prize, he must restore it to the owners, after deducting salvage.3 And although the salvors made prize of the ship, and brought her in for condemnation, and it turned out that she was a friend, and not a subject for condemnation, this capture gave no ground for denying the services actually rendered.*

In a case where a city which had been blockaded was evacuated, and the blockading fleet took possession of the harbor, persons not of the navy, who, by their knowledge of the signals used in guiding blockade-runners, enticed such a vessel into the harbor and procured her capture by the fleet, were held entitled to compensation as salvage.5

1 See ante, p. 316.

2

M'Donough v. Dannery, 3 Dall. 88. The vessel in this case had been captured and afterwards abandoned, and then brought into port by salvors. The salvors did not appeal from the decree of the district court, which awarded them one third of the gross proceeds of the property, and the case was carried to the Supreme Court to determine whether the captors or the original owners were entitled to the residue. The court held that the captors were, but expressed some doubts whether the salvors were not entitled to the whole of the property, or at least to a greater proportion than had been awarded them.

3

The Adventure, 8 Cranch, 221; The Sir Peter, 2 Dods. 73; The London, id. 74.

✦ The Franklin, 4 Rob. Adm. 147.

The Deer, U. S. D. C. Mass., 2 Am. Law Review, 101.

CHAPTER IX.

OF REPAIRS AND SUPPLIES.

We have already considered the lien of the material man at common law and by virtue of State statutes, and we propose now to consider the jurisdiction of our courts of admiralty over the subject of repairs and supplies and the various questions which arise when these subjects are presented in those courts.

By the general maritime law, and the civil law from which many of its provisons are derived, all material men have a lien on the ship. This was asserted also and enforced in the admiralty courts in England, until they were compelled to abandon this jurisdiction in the reign of Charles II.2 Since then, this lien has been confined in that country (until a statute passed in 1840 gave a lien to material men generally) to the case of a shipwright or other person, to whom possession of the ship has been given for the purpose of repair, who has a common-law lien for his pay.

1

Dig. 14, 1, 1; Cassaregis, Disc. 18; Ord. de la Mar. liv. 1, tit. 14, art. 16; 1 Valin, Com. 363; Consulat de la Mer, par Boucher, c. 32, 33, 34. It is generally stated that this principle of the maritime law is derived from the civil law. See The General Smith, 4 Wheat. 438, 443; The Nestor, 1 Sumner, 73, 79; The Stephen Allen, Blatchf. & H. Adm. 175, 177. But this has been shown to be incorrect. The Young Mechanic, 2 Curtis, C. C. 404; The Calisto, Daveis, 29,

31.

2 In the case of The Zodiac, 1 Hagg. Adm. 320, 325, Lord Stowell remarked: "In most of the countries governed by the civil law, repairs and necessaries form a lien on the ship itself. In our country, the same doctrine had for a long time been held by the maritime courts, but, after a long contest, it was finally overthrown by the courts of common law, and by the highest judicature in the country, the House of Lords, in the reign of Charles II." See Hoare v. Clement, 2 Show. 338; Justin v. Ballam, 1 Salk. 34, 2 Ld. Raym. 805; Watkinson v. Bernadiston, 2 P. Wms. 367; Wilkins v. Carmichael, 1 Doug. 101; Ex parte Shank, 1 Atk. 234. See also The Neptune, 3 Hagg. Adm. 129, 140; The John, 3 Rob. Adm. 170.

3 & 4 Vict. c. 65, § 6. For decisions under this act see The Alexander, 1 W. Rob. 288; The Sophie, id. 368; The Ocean Queen, id. 457; The Ocean, 2 W. Rob. 368.

This lien or "privilegium," by the civil law and the general maritime law, extends to all ships without any distinction between foreign and domestic vessels.1 In this country the law is now well settled that while the admiralty will take cognizance of suits in rem in the case of foreign vessels,2 yet it will not enforce this remedy in the case of domestic vessels.3 For many years our courts of admiralty entertained jurisdiction in the case of domestic vessels where a lien was given by a State statute, or where the material man had a common-law lien growing out of possession. And in 1844, the Supreme Court of the United States by an admiralty rule recognized this practice, and declared that there should be a proceeding in rem in the cases of domestic ships, where by the

1 See supra, p. 322, n. 1.

4

The St. Jago de Cuba, 9 Wheat. 409; North v. Brig Eagle, Bee, 78; The Jerusalem, 2 Gallis. 345; Ex parte Lewis, id. 483; Zane v. The Brig President, 4 Wash. C. C. 453; The Gustavia, Blatchf. & H. Adm. 189; The Schooner Active, Olcott, Adm. 286; Cole v. The Atlantic, Crabbe, 440; Tree v. The Indiana, id. 479.

* The St. Jago de Cuba, 9 Wheat. 409; Turnbull v. The Ship Enterprize, Bee, 345.

4 Peyroux v. Howard, 7 Pet. 324; Weaver v. The S. G. Owens, 1 Wallace, C. C. 358; Sutton v. The Albatross, 2 id. 327; Raymond v. Schooner Ellen Stewart, 5 McLean, C. C. 269; The Ferax, 1 Sprague, 180; Phillips v. The Thomas Scattergood, Gilpin, 7; The Sam Slick, 1 Sprague, 289. In Boon v. The Hornet, Crabbe, 426, a canal-boat built and used for service in the interior canals of Pennsylvania was hauled on shore on the bank of a river where the tide ebbed and flowed, and there repaired. Held, that although the law of the State gave a lien on vessels for all debts incurred on their account, the court would not take cognizance of such a service, the employment of the vessel not being maritime in its character; and the general rule was laid down that while the court would take cognizance under a State law of all contracts or charges of an admiralty or maritime nature, notwithstanding no lien was given therefor by the general maritime law, it would not of contracts or charges not of an admiralty or maritime nature, although a lien was given therefor by such State statute.

The Schooner Marion, 1 Story, 68, 72. The case of Peyroux v. Howard, 7 Pet. 324, seems to rest upon this principle, for the Civil Code of Louisiana, under which the case was decided, gives no greater privilege than a material man has in other States by the common law. But if the possession is parted with, it is well settled that this lien is gone. The General Smith, 4 Wheat. 438; The St. Jago de Cuba, 9 id. 409; Buddington v. Stewart, 14 Conn. 404; Boon v. The Hornet, Crabbe, 426; Tree v. The Indiana, id. 479; The Stephen Allen, Blatchf. & H. Adm. 175; Turnbull v. The Ship Enterprize, Bee, 345; Clinton v. The Brig Hannah, id. 419.