the rule of restitution in that country; and they were restored upon payment of the rate of salvage established in Portugal; viz., oneeighth 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 (e). 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 (f). 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 (g).

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 his Majesty'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 (h). So an American ship, which had been seized by the French Douaniers in the river Yadhe, and released upon giving bail, by depositing a sum of money to answer the sentence of a Court of Prize, and which was brought out of the river by the boats of an English gun-brig, was restored without salvage: for it was considered that the ship would have been free by reason of the security and deposit, even if sentence of condemnation should pass (i). In the war preceding the last, 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 unreasonable by the neutral merchants; but this was

(e) The Victoria, 1 Edw. 97.

(f) San Francisco, Da Paula, 1 Edw. 279. (g) Charlotte Caroline, Ader, 1 Dods. Ad. Rep. 192.

(h) The Huntress, Stinson, 6 Rob. 104. The War, Ouskan, 2 Rob. 299. The Sansom, 6 Rob. 410.

(i) The Robert Hall, Randall, 1 Edw. 265.

treated as an exception to the general rule, founded on particular circumstances (k). And in the last 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 ().

*Shortly before the commencement of the present war, a proclamation was issued by her Majesty 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, have since been passed. By the former of these Acts it is provided that British ships, goods, or merchandises, captured by and recaptured from her Majesty's enemies by any of her Majesty's ships or vessels of war, shall be restored to the owner thereof, upon payment in lieu of salvage of oneeighth part of their value, to be divided and distributed among the recaptors, as directed by the Act in respect of prize; but this is not to apply to ships recaptured after having been set forth by the enemy as vessels of war, which are not to be restored, but adjudged lawful prize for the benefit of the captors (m).

Ships recaptured before they have been carried into an enemy's port may, with the consent of the recaptors, proceed upon their voyage and unlade and dispose of their cargoes, subject to adjudication on their return to some port within the United Kingdom; and if they should not return within six months, the recaptors may institute proceedings against them and their cargoes in the High Court of Admiralty of England, which may thereupon award one-eighth part of the value to the recaptor, and enforce its payment by warrant of arrest against the ship or goods, or by monition and attachment against the respective owners thereof (n).

12. 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, including those within the territories under the government of the East India Company, to take cognizance of and determine whether any persons who may have been attacked as pirates by vessels of war belonging to her Majesty or the East India Company 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 it is enacted, that all ships, merchandise, or other property taken possession of from pirates by any ships or vessels of war, or armed vessels of her Majesty, or any ships or vessels of war or boats of the East India Company, and their officers and * crews, may be proceeded against in the said Courts, and shall be liable

(k) The Carlotta, Pasquel, 5 Rob. 54. The Eleonora Catharina, Kreagh, 4 Rob. 156. Fanny, Lawton, 1 Dods. 443. This last was the case of neutral goods shipped in an armed British vessel, which was taken and

retaken.

(1) The Acton, Mason, 1 Edw. 254.
(m) Sec. 9.
(n) Sec. 10.

*to condemnation as droits and perquisites of her Majesty; provided always, that if any part of such property shall be proved to have belonged to and to have been taken from any of her Majesty's subjects, or from the subjects of any foreign power, it shall be adjudged to be restored to the former owners thereof on payment, in lieu of salvage, of a sum of money equal to one-eighth part of the value thereof, to be distributed in such manner, form and proportions as other bounties are distributable under her Majesty's proclamations, or as the Court of Directors of the East India Company, or, in the case of a joint capture by her Majesty's ships and the ships of the East India Company, as the commissioners executing the office of Lord High Admiral shall direct (o).

Acts of piracy constitute men pirates-an independent state may be guilty of piratical acts, and of course rebels and insurgents * against the government of their own country (p).

CHAPTER II.

OF COLLISION.

(Ss.) 1. Of the Civil and Maritime Laws respecting it.

2. Law and Practice of the Court of Admirally. Causes of Collision.

3. French Regulations.

4. Law of England.

* THE master is bound to his owners for the exercise of reasonable skill and care in the management of the vessel, and he and they are bound in like manner to every one who is affected by his acts within the scope of his employment (a). The property of the merchant in particular is entrusted to his care, and he and his owners must answer for its damage or loss, through his negligence or misconduct. Mindful of this responsibility, he must, during the whole course of the voyage, at sea, at anchor, and in port, even when a licensed pilot is on board (b), be vigilant to avoid the peril of collision with another vessel.

This misfortune may be occasioned by circumstances beyond his control, as by the violence of the wind and the sea; it may be accidental, without fault on either side, or it may be caused by the negligence, ignorance, or unskilfulness of one or both of the captains * whose vessels come into collision.

(a) A wanton trespass by the master is not an act within the scope of his employment, and his owners are not answerable for it See the Druid, 1 W. Rob. 402. It has been held at Nisi Prius, that ownership is prima facie evidence (liable of course to be rebutted) that a vessel doing damage was under the care and management of the owner's servants.-Joyce v. Capel, 8 C. & P. 370.

*(b) The Girolamo, an Austrian vessel, left the London Docks, with a licensed pilot on board, towed by a steam vessel. After she had passed Blackwall, a fog came on, during which she ran foul of the Edward, a British convict vessel moored below Woolwich, in the proper berth for such vessels.

Sir John Nicholl said, "Did the accident arise from the neglect, default, incompetency, or incapacity (6 Geo. 4, c. 125, ss. 53, 54) of the pilot? or was the master in pari delicto? It occurred from the vessel going on in the fog, not from an act of bad steerage, want of knowledge of shoals, or any incapacity as pilot, but from proceeding at

all. It seems to be nearly admitted, that if the vessel had set off in this fog, blame would have been imputable to the master; if so, was he not blameable in going on in the fog? Had he not a right to resume his authority? Did he not owe it to his owners, and to the other persons whose property might be damaged by a collision, to insist on bringing the vessel up? Was not the master in duty bound at least to remonstrate with the pilot, and to represent the danger of proceeding? Yet he says in his affidavit, he did not in the least interfere.' In this aspect the case is, as far as I am aware, new, and one of too much difficulty to arrive at any hasty decision upon, unless there be no other points upon which the case may be disposed of."-3 Hagg. Ad. Rep. 176. See also the Protector, 1 W. Rob. Rep. 45; the Diana, 1 W. Rob. Rep. 131; the Massachusetts, 1 Wm. Rob. 371; the Ripon, 6 Notes of Cases, 245; Stuart v. Isemonger, 1 Wm. Rob. 131, P. C.; the Lochlibo, 3 W. Rob. 321; and the judg ment of Dr. Lushington in the Duke of Manchester, 10 Jur. 863.

*By the law of most of the maritime states (c), differing in this particular from the Roman law, which leaves each party to bear his own loss, the cost of damage resulting from collision, without fault in the persons belonging to either ship, is to be divided equally between them. The same rule obtains when both vessels are to blame, and when the blame cannot be detected.

One article of the ordinance of Wisbuy (d) seems to favour the interpretation of this rule of equal division, in the sense of a pro ratá apportionment of the expense of repairs between the colliding vessels, according to their relative value; and the Hanseatic ordinance provides, that the damage be sustained "æquis sortibus juxta arbitrium virorum bonorum" (e). Valin, adverting to the doubt thus created, and citing the laws of Oleron, Kuricke on the Hanseatic ordinance, Vinnius, and Stypmann as authorities, states the better opinion to be, that the damage should be borne in equal portionsthat is, each paying half (f). This, also, in its terms (g), and according to Valin's construction of them, is the provision of the French ordinance. We read, on the other hand, in Emerigon (h), that "if the collision has not happened fortuitously, and it is impossible to learn to whose fault it is imputable, then each vessel shall bear a moiety of the damage," thus confining the rule to cases of inscrutable fault. By the Code de Commerce (i), it is expressly limited to doubtful cases, the loss occasioned by collision purely fortuitous being allowed to rest where it has happened to fall. "If it be proved, says Pardessus, "that both vessels are to blame, each party bears his own loss; but if it be impossible to say whose fault has occasioned the collision, an estimate is made of the injury done to both the colliding vessels, the amount of which is to be borne by them in equal moieties, and not proportionably to the value of each ship and cargo" (ii).

2. Our Court of Admiralty, before which misfortunes of this kind are frequently the subject of discussion, adopts, when both vessels are in fault, the rule of the Maritime Law; and accordingly, in the *case of the Woodrop (k), Lord Stowell lays it down, that there

(c) See ante, pt. 4, ch. 10, s. 10, and the authorities there cited by the author; but ɛee Commentaries on the Law of Scotland, by Bell, vol. 1, p. 582, and Cours de Droit Commercial Maritime, by Boulay Paty, tit. De l'Abordage, vol. 4, p. 492. Both these learned authors appear to think, that in cases of pure accident, the rule of the maritime law and of the civil law is the same. (d) The 67th.

Jus. Marit. Hanseat. tit. 10, art. 1, on which Kuricke, ad. Dict. tit. p. 220 (Edition Heineccii, p. 801), observes, "Neque enim dum in casu hoc, pro mediâ parte quisque contribuere tenetur ullum inde commodum resultare potest." The same rule is followed in the Danish, Swedish, Prussian, Lubeck, and Hamburgh laws. By the Norwegian code, when one vessel, without necessity, strikes against another, it is liable to

fines, which vary in amount according to
the nature and locality of the injury done to
the suffering vessel. See Pardessus, Collec-
tion de Lois Maritimes.

(f) Valin, liv. 3, tit. 7, Des Avaries.
(g) Art. 10, 11, Des Avaries.
(h) Traité des Assurances, c. 12, s. 4.
(i) Art. 407.

(i) Cours de Droit Commercial, de l'Abordage, pl. 652. Boulay Paty, vol. 4, p. 495.

(k) 2 Dods. 83. See also the Shannon, 1 W. Rob. 463; the Ebenezer, 2 W. Rob. 206; the Itinerant, 2 W. Rob. 236; the Thornley, 7 Jur. 659; the Immaganda, 8 M. R. pl. 75. An inevitable accident is one which could not possibly be prevented by the exercise of ordinary care, caution, or maritime skill. See the judgment of Dr. Lushington in the Virgil, 2 W. Rob. 205.