Part VI. [however, contains no regulation of salvage or other provision in the case of recapture. During the short war with Spain in the reign of George the First, no legislative provision was made on the subject of prize.] Soon after the declaration of war against Spain in the 13th year of the reign of George the Second, and against France in the 17th and 29th years of the same reign, Acts of Parliament, which are now repealed (a), were passed on the subject of recapture, and provisions as to recapture were made by several ordinances in the time of the usurpation (b). At the commencement of hostilities with America (c), and afterwards with the French king (d), there was legislation about this. And at the commencement of the war, in the year 1793, the legislature fixed the rate of salvage in case of recapture (e); and afterwards, in the reign of George the Third, there was further legislation as to this (f). These statutes are now repealed, but it is thought advisable to refer to some of the cases decided upon them. A store-ship in the King's service, claiming salvage in the Court of Admiralty, was entitled to the same rate, and no higher, than a ship of war (g). A convoying ship might be entitled to salvage, for the recapture of a vessel under its protection taken in that situation, and effectually possessed by the enemy (h). If a ship captured by the enemy was voluntarily abandoned by him at sea after taking out the crew, either because he might be unable, or might not think it worth while to carry her into port, and was found and taken possession of by a British ship of war, this was held not to be a recapture within the Act of Parliament then in force, and the Court of Admiralty was not restricted as to the rate of salvage, but might apportion it to the nature and merits of the case (i). [A ship may be in the legal and constructive possession of the enemy, though not at the moment in his actual possession; and this will be sufficient to found a claim for salvage under the Act of Parliament. This was held in the case of a Portuguese ship, which being on a voyage from Pernambuco to Liverpool, with a cargo belonging to British and Portuguese merchants, put into the port of Muros, in Spain, in consequence of having sustained damage at sea, and was in that port at the time when the French took possession of the place. The French withdrew to proceed on another expedition; but they were near at hand, and had it in their power to return whenever they might think proper, and were not unlikely to do so. The principal] (a) 13 Geo. 2, c. 4, Recapture, sect. 18; 17 Geo. 2, c. 34, Recapture, sect. 20; 29 Geo. 2, c. 34, Recapture, sect. 24. (b) Scobell's Acts, A.D. 1648, c. 12; 1649, c. 21; and 1650, c. 28 & 33. (c) 16 Geo. 3, c. 5, s. 24. (d) 19 Geo. 3, c. 67, s. 44; now repealed. (e) 33 Geo. 3, c. 66, ss. 42, 44; now re pealed. (f) 43 Geo. 3, c. 160, ss. 39, 41; 45 Geo. 3, c. 72, s. 7; and 48 Geo. 3, c. 132. These acts are now repealed. (g) The Sedulous, I Dods. 253. (h) The Wight, 5 Rob. 251. (i) [The Gage, 6 Rob. 273; The Lambton, id. 275, note; and the Lord Nelson, Edw. 79.] [persons of the place were in their interest, and it was not probable Chap. 2. they would willingly have suffered such a ship and cargo destined for England to come away without molestation. In this state of things, the ship was brought out of the port by the boats of a British frigate, when there were only four persons on board. The cause being in the Prize Court of Admiralty, the learned judge made a decree for the rate of salvage under the statute; observing, there was no doubt that the property had been rescued from considerable peril by the captain of the frigate, and that he was entitled to a remuneration of some kind or other, so that the only question was, whether this should be considered as a case of military salvage, or the parties be put to the expense of a fresh suit in the Instance Court (k). A British army acting in a foreign country, in conjunction with a native force, without the co-operation of a fleet, and liberating a part of the country from the hands of their common enemy, by operations on land, directed to that end near to and in the place, may be entitled to salvage under the statute, on British ships found in the port, and on their cargoes, whether actually on board at the time or landed and warehoused, thus rescued from the enemy; but not on the property of the natives of the country thus delivered, and which reverts to their possession and dominion. And if, in such a case, the masters of the British ships are allowed to bring their cargoes to England, under their own management, according to their original intention, the salvage is to be estimated upon the value in England (1).] The right to participate in the salvage in the case of alleged joint capture, depends so much upon the circumstances of the particular case, the character of the vessels on behalf of which the claim is preferred, and the nature of the assistance on which it is founded, that no general principle of practical utility can be extracted from the decisions (m). [It may be proper to mention in this place the practice of the Court of Admiralty in the case of the property of the allies of this country, taken at sea by a common enemy, and retaken by the subjects of this country. "The Maritime Law of England," says Sir WM. SCOTT, "having adopted a most liberal rule of restitution on salvage, with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle: in such a case it adopts their rule, and treats them according to their own measure of justice" (n). In conformity to this rule, the San Jago was not restored to the King of Spain, because retaken from his then enemy the French,] The (k) [The Pensamento Feliz, 1 Edw. 115.] The Edward and Mary, 3 Rob. 305. (1) [The Progress, 1 Edw. 210. case arose out of the recapture of Oporto. The reader will find much instruction from the perusal of the very learned judgment delivered in the cause.] See the Banda and Kirwee Booty, L. R. 1 A. & E. 109; L. R. 4 A. & E. 436. (m) The Bellona, 1 Edw. Ad. Rep. 63. The Wanstead, ib. 268. Le Niemen, 1 Dod. Ad. Rep. 16. La Belle Coquette, id. 20. Union, id. 346. The Sparkler, id. 359. (n) [In the case of the Santa Cruz, 1 Rob. Ad. Rep. 63.] Part VI. [under circumstances in which the Spanish courts had condemned British property retaken by the Spaniards; and shortly afterwards, two Portuguese ships were for the same reason condemned, and several others at the same time restored (a), because, in the interval between the different captures, an ordinance of the Court of Portugal had altered the rule of restitution in that country; and they were restored upon payment of the rate of salvage established in Portugal: viz., one-eighth to king's ships, and one-fifth to privateers. Upon the same principle, a British ship, which had been taken by the French, and carried into Pontevedra in Spain, and condemned by the Prize Court at Paris, being afterwards seized as French property, and sold under the orders of the Junta of Gallicia, then enemies of France, and allies of this country, and which came to England, and was claimed by the original British owner, was not restored (b). At a later period, a Spanish ship was restored on payment of one-eighth, upon the ground of an article in a recent treaty between Spain and this country, providing for mutual restitution on salvage (c). Of this principle of British jurisprudence, whatever attempts may be made to shake it from motives of public policy or private interest, reason must now declare, and posterity will hereafter confess, that it is founded on the immoveable basis of reciprocal justice. The right of recaptors to salvage is extinguished by a subsequent act of capture and condemnation by an enemy, but it must be a regular sentence of condemnation carried into execution; for if the sentence of the Prize Court be overruled by an order of release from the sovereign power of the State, the recaptors are not deprived of their right to salvage (d). : If the property of a nation, not engaged in hostility with the enemies of this country, happen to be taken as a prize by them, and retaken out of their hands by H. M.'s subjects, the probability of its condemnation in the courts of the country of the captors is to be considered and unless there appear to be ground on which it may be supposed that it would have been condemned in those courts, it is to be restored without the payment of any salvage. Upon this ground an American ship, carrying provisions and naval stores on the part of the American government, for the use of their fleet in the Mediterranean, was restored without any salvage on recapture from the Spaniards (e). In one of the wars with France, the conduct of the cruizers and Prize Courts of France having given reason to apprehend that neutral property, arrested by the former on the high seas, would in almost all cases be condemned by the latter, salvage was usually allowed to recaptors of neutral property out of the hands of the French by our Court of Admiralty, and such allowance was not thought unreason-] (a) Same case. (b) [The Victoria, 1 Edw. 97.] (c) [The San Francisco, 1 Edw. 279. (e) [The Huntress, 6 Rob. 104.] The War, 2 Rob. 299. The Sansom, 6 Rob. 410. The Robert Hall, 1 Edw. 265. [able by the neutral merchants; but this was treated as an exception Chap. 2. to the general rule, founded on particular circumstances (f). And in one war it was allowed, upon the recapture of American ships from the French and Danes, which were navigated without the certificates of origin required by the French decrees, and of which the condemnation was to be expected from the usual practice of France and Denmark on similar occasions (g).] Shortly before the commencement of the late war with Russia a proclamation was issued by H. M. for regulating the distribution of prize and naval pay; and the Prize Act, Russia, 1854, 17 Vict. c. 18, and the Naval Pay and Prize Act, 1854, 17 Vict. c. 19, were passed. These acts have been repealed. By 27 & 28 Vict. c. 25 (The Naval Prize Act, 1864), s. 40, Naval Prize "Where any ship or goods belonging to any of Her Majesty's sub- Act, 1864. jects, after being taken as prize by the enemy, is or are retaken from the enemy by any of Her Majesty's ships of war, the same shall be restored by decree of a Prize Court to the owner, on his paying as a prize salvage one-eighth part of the value of the prize to be decreed and ascertained by the court, or such sum not exceeding one-eighth part of the estimated value of the prize as may be agreed on between the owner and the recaptors, and approved by order of the court: Provided, that where the recapture is made under circumstances of special difficulty or danger, the Prize Court may, if it thinks fit, award to the recaptors as prize salvage a larger part than one-eighth part, but not exceeding in any case one-fourth part, of the value of the prize: Provided also, that where a ship after being so taken is set forth or used by any of H. M.'s enemies as a ship of war (h), this provision for restitution shall not apply, and the ship shall be adjudicated on as in other cases of prize.' By sect. 41, "Where a ship belonging to any of Her Majesty's subjects, after being taken as prize by the enemy, is retaken from the enemy by any of H. M.'s ships of war, she may, with the consent of the recaptors, prosecute her voyage, and it shall not be necessary for the recaptors to proceed to adjudication till her return to a port of the U. K. The master or owner, or his agent, may, with the consent of the recaptors, unload and dispose of the goods on board the ship before adjudication. In case the ship does not, within six months, statute it was held that a ship once set Part VI. return to a port of the U. K., the recaptors may nevertheless institute proceedings against the ship or goods in the High Court of Admiralty, and the court may thereupon award prize salvage as aforesaid to the recaptors, and may enforce payment thereof, either by warrant of arrest against the ship or goods, or by monition and attachment against the owner." 14. Of Salvage of Ships and Merchandise found in Possession of Pirates. : By the 13 & 14 Vict. c. 26, "An Act to repeal an Act of the 6 Geo. 4, for encouraging the capture or destruction of piratical Ships or Vessels, and to make other Provisions in lieu thereof," jurisdiction is given to the High Court of Admiralty, and to all ViceAdmiralty Courts of Her Majesty beyond the seas, to take cognizance of and determine whether any persons who may have been attacked as pirates by vessels of war belonging to H. M. were or were not pirates, and to adjudge what was the total number of pirates so attacked, the number captured, and what were the vessels and boats engaged and by sect. 5 of this Act, it is enacted "that all ships, vessels, boats, goods, merchandise, specie, or other property taken possession of from pirates by any of Her Majesty's ships or vessels of war, or hired armed vessels [or the ships or vessels of war of the East India Company] (a) or their boats, or any of the officers and crews thereof, shall and may be proceeded against in any of the Admiralty Courts before mentioned, and be subject and liable to condemnation as droits and perquisites of Her Majesty in Her office of Admiralty: Provided always, that if any part of the said property shall be duly proved to have belonged to and to have been taken from any of H. M.'s subjects, or from the subjects of any foreign power, then such property and every part thereof shall, by the decree of the said court, be adjudged to be restored, and shall be accordingly restored to the former owner or owners, proprietor or proprietors thereof respectively, he or they paying for or in lieu of salvage a sum of money equal to one-eighth part of the true value, which money [if such property shall have been taken by any of H. M.'s ships or vessels of war or hired armed ships, or their boats] (a), shall be paid to and divided and distributed amongst the officers and crews thereof, in such manner, form, and proportion, as other bounties are now distributable by virtue of H. M.'s proclamation or order in council dated the 30th day of July, 1849, or as H. M., her heirs and successors, shall from time to time by any further proclamation or order or orders in council think fit to declare and direct." Acts of piracy constitute men pirates-an independent state may be guilty of piratical acts, as may also rebels and insurgents against the government of their own country (b). (a) The parts within brackets are re- (b) The Magellan Pirates, 1 E. & M. 88. pealed by Stat. Law Rev. Act, 1875. |