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1818.

The Star,

Feb. 7th.

(INSTANCE COURT.)

The SAN PEDRO.-Valverde, Claimant."

Decree of restitution affirmed, with a certificate of probable cause, in an instance cause, on farther proof.

THIS cause was ordered to farther proof at the last term. Farther proof was produced at the present term and the cause submitted thereon without argument.

Mr. Chief Justice MARSHALL delivered the opinion of the court, affirming the decree of restitution in the court below, with a certificate of probable cause of sei

zure.

Decree affirmed.

(PRIZE.)

The STAR.-Dickenson, et al. Claimants.

An American vessel was captured by the enemy, and after condemnation and sale to a subject of the enemy, was recaptured by an American privateer. Held, that the original owner was not entitled to restitution on payment of salvage, unde the salvage act of the third of March, 1800, ch. 14, and the prize act of the 26th of June, 1712, ch. 107.

a Vide ante, vol. II. p. 9.

By the general maritime law, a sentence of condemnation com
pletely extinguishes the title of the original proprietor.
By the British Statute of the 13th George II. ch. 4, the jus
postliminii is reserved to British subjects upon all recaptures
of their vessels and goods by British Ships, even though they
have been previously condemned, except where such vessels,
after capture, have been set forth as ships of war.

The statute of the 13d George III. ch. 160, s. 39. has no farther
altered the previous British laws, than to fix the salvage at
uniform stipulated rates, instead of leaving it to depend upon
the length of time the recaptured ship was in the hands of
the enemy.

Neither of these statutes extends to neutral property.
The 5th section of the prize act of the 26th June, 1812, ch. 107

does not repeal any of the provisions of the salvage act of the
3d of March, 1800, ch. 14, but is merely affimative of the
pre-existing law.

By the law of this country the rule of reciprocity prevails upon the re-capture of the property of friends.

The law of France denying restitution upon salvage after 24 hours possession by the enemy, the property of persons domiciled in France is condemned as prize by our courts on recapture, after being in possession of the enemy that length of time.

APPEAL from the circuit court for the district of New-York,

It appeared by the libel, claim, evidence, and admissions of the parties in this cause, that the ship Star was captured by the American privateer Surprise, on the high seas, on the 27th of January, 1815. That the ship Star was then on a voyage from the British East Indies to London. That she was under the British flag, had British papers as a trading vessel, and a license from the British East India Company, and that

1818.

The Star,

1818

The Star,

her ostensible owners were British subjects, residing in London. It further appeared, that prnviously to the late war, and till, and at the time of the capture and condemnation in the British court of admiralty hereinafter mentioned, the said ship was a duly registered American ship, and was owned by Isaec Clason, deceased, an American citizen, residing in New-York, or by the claimants, his executors, who were also American citizens, residing in New-York.

That soon after the commencement of the late war, the said ship sailed from the United States on a foreign voyage, and immediately after leaving a port of the United States on the said voyage, was captured by a British vessel of war, and carried into Halifax, Nova Scotia, where she was regularly libelled and condemned as prize in the court of vice-admiralty of that province; after which she was purchased by the British subjects who claimed to own her, at the time she was. re-captured by the Surprise. This last mentioned capture naving been made, the ship Star was brought into the port of New-York, and libelled in the district court of New-York, as prize to the said privateer; upon which libel the appellants put in a claim, claiming the said ship as the property of their testator, and claiming to have the said ship restored to them upon the payment of salvage; which claim was rejected, and the ship was condemned. The cause was then carried to the circuit court, where the decree of the disFeb. 11th trict court has affirmed. It was then brought, by appeal, to this court.

Mr. Key, for the appellants and claimants. The question in this cause arises under the prize act of the 26th of June, 1812, sec. 5. which, it is contended

repeals the salvage act of 1800, as to this matter. The latter act provides, that condemnation in the enemy's prize courts shall be a bar to restitution on salvage to the original owner. The 5th section of the prize act of 1812, declares, "that all vessels, goods and effects, the property of any citizen of the United States, or of persons resident within, and under the jurisdiction of the United States, or of persons permanently resident within, and under the pro tection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners, upon payment by them respectively, of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law." This section directs all vessels, goods, and f fects, of citizens and neutrals, recaptured from the enemy, to be restored on payment of salvage, without reference to the fact, whether they had been previously condemned or not; and so far it modifies and repeals the salvage act of 1800. The original owner is, therefore, entitled to restitution, notwithstanding the British condemnation. Upon any other interpretation, the entire section would become wholly inoperative, as every case is included in the previous act of 1800. When that act passed, our law conformed to the English rule, which then prevailed. England subsequently altered her law and our act VOL. III.

12

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The Star.

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The Star.

of 1812 copied the British statute of the 43d George III.a That act must have been intended to make. some change in the existing legislation on the subject; and it is probable that congress meant to make a distinction between recaptures by public ships and by private ships, unfavourable to the latter. The "provisions heretofore established," do not refer to all the provisions of the act of 1800; these words merely refer to the rate of salvage fixed by that act, and not to the principle of restitution. The latter is changed; the former remains unaltered.

Mr. Winder, and Mr. Harper, contra. The act of 1800 was not a prize act for privateers. The provision in the act of 1812, is merely incidental, and refers to the pre-existing law. Our policy of 1812 was not like that of England, which contemplates the extreme probability of the recapture of British vessels, even after condemnation by the enemy. Our object was to hold out the most liberal encouragement to cruizing. The British salvage acts merely refer to the recapture of British property; our act extends to neutral, as well as American property. The British statutes are merely an exception to the general rule, municipal and local. Our law is founded on the law of nations. The construction contended for might extend to enforce a demand of restitution after the lapse of an indefinite length of time, and after the intervention of repeated treaties of peace.

a Park on Insurance, 94. 6th London ed. 2 Marshall on Ins. 501. Horne's Compendium, 34.

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