vention, and the Court of Admiralty declared it to have been so, and gave sentence for the plaintiff to recover his wages; the Court of King's Bench, upon application for a prohibition, said, "This is only a deed on one side to forfeit the wages upon particular circumstances, but will not enable them to sue for their wages at law; the deed, therefore, comes in, only by way of incident, and then they may proceed to try it. There can be no prohi

bition" (h).

2. In proceeding against the ship in specie, if the value thereof be insufficient to discharge all the claims upon it, the seaman's claim for his wages is preferred before all other charges (i), for the same reason that the last bottomry bond is preferred to those of an earlier date: the labour of the seamen having brought the ship to the destined port, has furnished to all other persons the means of asserting their claims upon it, which otherwise they could not have had.

But all suits and actions brought in the Court of Admiralty for seamen's wages must be commenced within six years next after the cause of such suit or action shall accrue, unless the party entitled to sue shall at that time be within the age of twenty-one years, a feme covert, non compos mentis, or imprisoned, or unless such party, or the party sued, shall be at that time beyond the seas; in which cases the suit may be brought within six years after the party suing shall be of full age, discovert, of sane memory, or at large; or either the party suing, or the party sued, shall return from beyond the seas (k).

3. In the Courts of Common Law the seamen may sue either the master, as the person immediately contracting with them and answerable to them, or the owners, as the persons virtually contracting with them, through the agency of the master, and answerable for the performance of his engagement. And actions in the Courts of Common Law are also limited to the same period of six years, with the same provisoes (1), unless they are founded on a contract under seal; if they are founded on such a contract, the statutable limitation does not apply to them: but after a lapse of twenty years, the claims will be presumed to have been satisfied without any proof of payment.

In suits in the Courts of Common Law, the form of action depends upon the nature of the contract; if the contract be under seal, and delivered as a deed, an action of debt or covenant must be brought; if it be not under seal, or not so delivered, an action of debt or of assumpsit (m). And in order to enable the plaintiff to frame his

(h) Buck v. Atwood, 2 Stra. 761.

(i) The Favorite, De Jersey, 2 Rob. Ad. Rep. 232; French Ordin. liv. 1, tit. 14, De la saisie des vaisseaux, art. 16, and Valin thereon. Code de Commerce, art. 192. And see the judgment of Sir John Nicholl in the Hersey, 3 Hagg. 407.

(k) 4 Anne, c. 16, ss. 17, 18, and 19.

The length of time thus allowed may be very inconvenient in the case of a suit against the ship, if the property thereof has been changed. The French Ordinance allows only one year.

(1) 21 Jac. 1, c. 16, ss. 3 and 7, and 4 Anne, c. 16, s. 19.

(m) Clemente. Gunhouse, cited before, P. 439.

declaration correctly, a Judge of the Court will order the defendant to show the articles to the attorney for the plaintiff, and, if necessary, to give him a copy of them. The plaintiff is not bound to show that the ship earned freight: the defendant must prove the negative, if such proof will furnish a defence (n).

The course of pleading to be adopted by the defendant depends upon the form of the plaintiff's declaration, according to the general rule and distinctions respecting actions of debt, covenant, and assumpsit, of which the consideration does not properly belong to a Treatise on a single branch of the law.

*The 17 & 18 Vict. c. 104, adopting, with some modifications, the provisions of former Acts, gives a summary mode of recovering wages,-enacting that any seaman or apprentice may sue in a summary manner before two justices of the peace residing near to the place where the service shall have terminated, or at which the seaman or apprentice has been discharged, or at which any person on whom the claim is made resides, and before the sheriff also in Scotland, for any amount of wages not exceeding 50l. above the costs of the proceeding; and that every order made by such justices or sheriff shall be final.

And to enforce the adoption of this less costly remedy, it is enacted, that no suit for wages shall, unless they exceed 50%, be instituted against the ship, or the master or owner thereof, in any Court of Admiralty, or of Record, in the Queen's dominions, or the territories of the East India Company, unless the owner be bankrupt or insolvent, or the ship under arrest or sold by the authority of a Court of Admiralty, or unless a magistrate acting under the authority of this Act shall refer the case to be adjudged by any such Court, or unless neither the owner nor master shall reside near the place where the service of the seaman shall terminate, or be discharged, or put on shore.

*

But no seaman, who is engaged for a voyage to terminate in the United Kingdom, is entitled to sue in any Court abroad for wages, unless he is discharged with the sanction required by the Act, and with the written consent of the master; or proves such ill-usage on the part of the master, or by his authority, as to warrant reasonable apprehension of danger to the life of such seaman, if he were to remain on board (o).

(n) Brown v. Milner, 7 Taunt. 319. The earning of freight is not in all cases necessary to entitle seamen to their wages; as, suppose a ship goes out in search of a cargo, and not being able to procure one, returns empty, the seamen will be entitled to their

wages, unless there be an agreement to the contrary. See the judgment of Lord Stowell, in the case of the Neptune, Clark, 1 Hagg. Ad. Rep. 227.

(0) Sec. 190.

PART THE SIXTH.

OF SALVAGE, COLLISION, AND MARITIME LIEN.

(Ss.) 1. Of Salvage generally.

CHAPTER I.

OF SALVAGE; AND HEREIN,

2. Of Salvage at Common Law, and the Jurisdiction of the High Court of Admiralty in cases of Salvage at Sea.

3. Of Salvage by the Crews of the Royal Navy, and by licensed Pilots.

4. Of the Apportionment of Salvage Reward among those engaged in the Salvage Service.

5. Of Reward for Preservation of Life.

6. By whom and in respect of what interests Salvage is payable.

7. Proceedings in Admiralty.

8. Appointment and Duties of Receivers, under 17 & 18 Vict. c. 104.

9. Of Salvage in the United Kingdom, 17 & 18 Vict. c. 104.

10. Of Salvage within the Jurisdiction of the Cinque Ports.

11. Of Salvage on Recapture.

12. Of Salvage of Ships and Merchandise found in the possession of Pirates.

1. HAVING thus treated of the rights and duties arising out of the contracts between the shipowner and the merchant, and between the master and mariners, it seems proper in the next place to consider a subject which the dangers of navigation frequently render interesting to both alike; namely, the compensation that is to be made to other persons, by whose assistance a ship or its lading may be saved from impending peril, or recovered after actual loss. This compensation is known by the name of salvage, and at present is commonly made by payment in money; but in the infancy of commerce was more frequently made by the delivery of some portion of the specific articles saved or recovered.

All foreign codes of maritime law, both ancient and modern, contain provisions and enactments on this head. In some of them, the value to be paid is fixed at a certain portion of the articles saved, or of their value, according to their nature and quality, or the circumstances of the case. But it is obvious that positive and settled rules are little adapted to the administration of justice in varying and unsettled cases; and what can be more various and unsettled than the degrees of labour experienced on the ocean, or the degrees of peril

to which persons who engage in the meritorious task of assisting the distressed on that element are at different times exposed? And therefore, in the case of wreck or derelict at sea, the law of England, like the law of some other countries, has fixed no positive rule or rate of salvage, but directs only, as a general principle, that a reasonable compensation shall be made (a). The legislators of all civilized and commercial states in modern times (b) have laboured earnestly to repress, by due severity of punishment, the barbarous spirit of plundering the helpless and distressed mariner, whose situation calls for assistance and relief. And very salutary provisions have been made on this subject by the wisdom of our own Parliaments (c), but which I shall forbear to detail, as not properly belonging to my subject, and proceed to the consideration of salvage; FIRST, with regard to effects preserved from the perils of the sea; and, secondly, with regard to effects retaken from an enemy, into whose hands they may have fallen.

2. A person, who by his own labour preserves goods which the owner, or those entrusted with the care of them, have either abandoned

(a) In the case of derelict becoming the property of the Crown, it was formerly the settled practice of the Court of Admiralty to give a moiety to the finders or salvors, but the practice has long been disused, and the reward become discretionary. Case of the Aquila, 1 Rob. 37; Wellwood's Sea Laws, tit. 24. At present, seldom mor han onehalf, or less than one-third, is en. The Britannia, Plash, 3 Hagg. 153. The Effort, 3 Hagg. 165. Queen Mab, Tollman, 3 Hagg. 242. Sometimes, however, a fifth, sixth, or tenth, only has been awarded (see Pritchard's Admiralty Digest, tit. Salvage), and even less. The Red Rover, 3 W. Rob. 150. In a case of derelict of very small value, no owner appearing, the whole net value, 357., was allowed. The Castletown, 5 Irish Jur.379. William Hamilton, Hughes, 3 Hagg. 168. See also the Frances Mary, Kendal, 2 Hagg. 89. The Rebecca, 2 Hagg. 90. In order to constitute derelict, it is sufficient that there has been an abandonment at sea by the master and crew without hope of recovery. A mere quitting of the ship for the purpose of procuring assistance from the shore, or with the intention of returning to her again, is not an abandonment. See the judgment of Lord Stowell, in the Aquila. See also the Barefoot, 14 Jur. 841. The Pickwick, 16 Jur. 669.

Where the amount of salvage is not fixed by positive law, it must be determined by the principles of the maritime law, and must necessarily rest in an enlarged discretion, to be exercised according to the circumstances of each case. It is impossible, therefore, to lay down any positive rule on the subject. Looking to the current of decisions, it will be found that it is rarely less than one-third,

or more than one-half of the property saved, unless the services have been very inconsiderable, or the amount of the property has been very great. And in cases of derelict, although the rule is now deemed a flexible one, yet Courts of Admiralty still adhere to a moiety as the favourite amount, and require some peculiar circumstances to displace it. See P'Esperance, 1 Dods. 46. The Fortuna, 4 Rob. 194. The Blendenhall, 1 Dods. 421. The Elliotta, 2 Dods. 75. The Effort, 3 Hagg. 75. The Sarah Bell, 4 Notes of Cases, 146.

The Appellate Courts of the United States are disposed not to encourage appeals in cases of salvage, as mischievous to all parties, and therefore generally adhere to the salvage given in the District Courts, unless there are very strong circumstances calling for a different rule. Mr. Justice Story's note to his American edition, p. 397; and see the cases there cited. High salvage has been frequently awarded where steam power has been used in the salvage service. See the Raikes, 1 Hagg. 246. The London Merchant, 3 Hagg. 394. The Earl Grey, 3 Hagg. 363. The Shannon, 11 Jur. 1045.

The general principles, as to the allowance of salvage, are the same in American as in English jurisprudence.

(b) I have used the words "in modern times," because, formerly, the claim of the sovereign power in some countries was not less barbarous than the temper of the inhabitants. See Valin's preface to tit. 9 of book 4, of the French Ordinance.

(c) See the statutes 3 Edw. 1, c. 4; Edw. 1, stat. 2, s. 2; 12 Anne, stat. 2, c. 18; 26 Geo. 2, c. 19, and 1 & 2 Geo. 4, c. 75 and 76; 1 Black. Com. chap. 8, sec. 11.

in distress at sea, or are unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved, until the proper compensation is made to him for his trouble (d). This compensation, if the parties cannot agree upon it, may by the same law be ascertained by a jury in an action brought by the salvor against the proprietor of the goods on his implied contract (if the circumstances justify an inference of it) to make compensation for the service rendered in respect of them (e): or the proprietor may tender to the salvor such sum of money as he thinks sufficient, and upon refusal to deliver the goods, bring an action (ee) against the salvor; and if the jury think the sum tendered sufficient, he will recover his goods or their value and the costs of his suit. But a person, even though he may be the lord of the manor, cannot entitle himself to a claim of salvage by taking possession of a wreck or parts thereof against the consent of those who are at hand and upon the spot, employed by the owner of the ship to save and preserve them (†). And if one set of persons have taken possession of a vessel abandoned at sea, and are endeavouring to bring it into port and save it, another set have no right to interfere with them and become participators in the salvage, unless it appears that the first would not have been able to effect the purpose without the aid of the others (g). Nor, if a vessel be preserved, the cargo of which consists of government stores, is the dispossession of the original salvors by the officers of a King's ship warranted by law without reasonable cause for their interference. Should, however, persons be found in possession, who, from want of experience, may be unfit to be trusted with valuable property, or who have been guilty of gross misconduct, which may render their removal proper and necessary, the interference of the King's officers may in such cases be not only justifiable but even laudable (h).

* A salvor is defined to be one who as a volunteer assists a ship in distress (i); therefore, a mariner placed by his own captain under the orders of the captain of a ship in distress cannot sue the owners of the latter for his services. Nor can the officers and crew of a ship claim salvage in respect of service rendered to it (k), unless indeed their duty to its owners had ceased by the master's bona fide abandonment of it at sea without hope of recovery (1); but it is otherwise if the abandonment be on the coast, or only temporary, or not by the order of the master (m). The 9 & 10 Vict. c. 99, enumerates the persons who are enabled, to claim salvage under its provisions. The rights of original salvors are always jealously maintained by the

(d) Hartford v. Jones, 1 Lord Raym. 393. Nicholson v. Chapman, 2 Hen. B. 257. Newman v. Walter, 3 B. & P. 612. Baring and Others v. Day, 8 East, 57.

(e) Lipson v. Harrison, 2 W. R., Q. B. 10. (ee) Viz., of detinue or trover. (f) Sutton v. Buck, 2 Taunt. 302. (g) The Maria, Kilstrom, 1 Edw. 175. The Charlotta, Nesser, 2 Hagg. 361. The