the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as commander of a squadron. (f)

commis

vessel.

§ 381. It is no objection to an allowance of salvage, Recapture or a recapture, that it was made by a non-commissioned by a nonvessel; it is the duty of every citizen to assist his fellow sioned citizens in war, and to retake their property out of the enemy's possession; and no commission is necessary to give a person so employed a title to the reward which the law allots to that meritorious act of duty. (a) And if a convoying ship recaptures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage. (b) But a mere rescue of a ship engaged in the same common enterprise gives no right to salvage. (c)

Military

§ 382. To entitle a party to salvage, as upon a recap- salvage for ture, there must have been an actual or constructive cap- recapture. ture; for military salvage will not be allowed in any case where the property has not been actually rescued from the enemy. (a) But it is not necessary that the enemy should have actual possession; it is sufficient if the property is completely under the dominion of the enemy. (b) If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil and not of military salvage. (c) But to constitute a recapture, it is not necessary that the recaptors should have a bodily and actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. (d) Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are not entitled to restitution on paying salvage, but the last captors are entitled to the whole rights of prize; for, by the first recapture,

(f) The Georgiana, Dodson's Adm. Rep. i. 397. (a) The Helen, Robinson's Adm. Rep. iii. 224. (b) The Wight, Robinson's Adm. Rep. vi. 315.

(c) The Belle, Edwards's Adm. Rep. i. 66.

(a) The Franklin, Robinson's Adm. Rep. iv. 147.

(b) The Edward and Mary, Robinson's Adm. Rep. iii. 305. The Pensamento Felix, Edwards's Adm. Rep. i. 116.

(c) The Franklin, Robinson's Adm. Rep. iv. 147.

(d) The Edward and Mary, Robinson's Adm. Rep. iii. 305.

the right of the original captors is entirely divested. (e) Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property. (f) But if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived. (g) And where the enemy has captured a ship, and afterwards deserted the captured vessel, and it is then recaptured, this is not to be considered as a case of derelict; for the original owner never had the animus delinquendi, and therefore it is to be restored on payment of salvage; but as it is not strictly a recapture within the Prize Act, the rate of salvage is discretionary. (h) But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the act. (i) Where the captors abandon their prize, and it is afterwards brought into port by neutral salvors, it has been held, that the neutral Court of Admiralty has jurisdiction to decree salvage, but cannot restore the property to the original belligerent owners; for by the capture, the captors acquired such a right of property as no neutral nation can justly impugn or destroy, and, consequently, the proceeds, (after deducting salvage,) belong to the original captors; and neutral nations ought not to inquire into the validity of a capture between belligerents. () But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled to a remuneration as salvors; but after deducting salvage, the remaining proceeds will be decreed to the original owner. (k) And it seems to be a general rule, liable to but few exceptions, that the rights of capture are completely divested by a hostile recapture, escape, or voluntary discharge of the captured vessel. (7) And the same principle seems applicable to a hostile rescue; but

(e) Robinson's Adm. Rep. iv. 217, note a. Wheaton's Rep. i. 125, The Astrea. Valin, sur l'Ord. tom. ii. pp. 257-259. Traité des Prises, ch. 6, § 1. Pothier, Traité de la Propriété, No. 99.

(f) The Lord Nelson, Edwards's Adm. Rep. i. 79. The Diligentia, Dodson's Adm. Rep. i. 404.

(g) The Mary, Wheaton's Rep. ii. 123.

(h) The John and Jane, Robinson's Adm. Rep. iv. 216.

(i) The Gage,, Robinson's Adm. Rep. vi. 273.

(j) The Mary Ford, Dallas's Rep. iii. 188.

(k) The Adventure, Cranch's Rep. viii. 227.

(4) Hudson v. Guestier, Cranch's Rep. iv. 293; Ib. vi. 281, S. C. The Diligentia, Dodson's Adm. Rep. i. 404.

if the rescue be made by the neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which involves the penalty of confiscation, would be held, in the prize courts of the captor's country, to divest his original right in case of a subsequent recapture.183

[183 Rescue by Neutrals. The law respecting rescue by neutrals has received full consideration in the late case of the ship Emily St. Pierre. This was a British vessel, captured by the United States blockading squadron, in the act of breaking the blockade of Charleston, S.C., and ordered to Philadelphia for adjudication in charge of a prize crew. The original crew, by fraud and force, regained possession, and took the vessel to Liverpool and restored her to the possession of her owners. Mr. Adams applied to Earl Russell for a restoration of the vessel, on the ground that the rescue was a violation of the law of nations, which furnished sufficient cause for condemnation, and a breach of the duty of a neutral, who is bound to submit to the adjudication of the prize court of the captor. Earl Russell refused the demand on two grounds, — first, that, as the rescue was not a violation of any municipal law of England, and as the vessel was not in the custody of the British Government, that government had no legal right to take her from the hands of her owners, or to prosecute or proceed against the vessel or the owners for any violation of law; and second, that, in addition to the technical objection, the offence was solely one against the laws of war made for the benefit of captors, which the captors could assert and vindicate only in their own tribunals. Admitting that rescue was ground for condemnation, he contended that the decree could only be made by the belligerent prize court. No other court, either of the belligerent or of a neutral country, had jurisdiction to condemn or restore property taken in war. If the private neutral rescues his vessel by force, he takes all risks of the captor's rights of force recognized by nations, but nothing more. The courts and government of the neutral country cannot decide that the title to the vessel has passed to .the captors before condemnation by the prize courts of the captor's country. All they can do is to restore to the captor the temporary possessory right, which he has between capture and condemnation. Such possessory right he held to be one of force, which the captor's government could guard and assert by condemnation or other penalty on the property, if in its possession, through its prize court; but, even by the courts of the captor, the neutral rescuer could not be personally punished, as for a crime. He contended that it was not incumbent on neutral governments to make laws to enforce such belligerent possessory rights against their own citizens, any more than it is in case of crimes committed by their own citizens abroad, whom they do not even deliver up to the offended government for trial, except by treaty stipulation; or in case of violations of the revenue or embargo laws of other countries, which they never even indirectly take active cognizance of; or in case of successful breach of blockade.

In the course of the correspondence, Mr. Adams cited a parallel case, in which the position of the two governments was reversed, as early as 1799, that of the brig Experience. She was an American vessel, captured (with two other vessels) by a British cruiser, rescued by her crew, and brought to Philadelphia. By direction of Lord Grenville, of Oct. 21, 1799, Mr. Liston demanded her restoration by the American Government, by letter of May 2, 1800. The Secretary of State, Mr. Pickering, by letter to Mr. Liston, of May 8, 1800, declined to interfere, and upon the ground that it was an inchoate and belligerent right of captors, which the neutral government cannot be expected to enforce against its own subjects; but referred the British Min

Salvage on a second recapture,

or a rescue or restitution.

§383. As to recaptors, although their right to salvage is extinguished by a subsequent hostile recapture and regular sentence of condemnation, divesting the original owners of their property, yet if the vessel be restored upon such recapture, and resume her voyage, either in consequence of a judicial acquittal, or a release by the sovereign power, the recaptors are redintegrated in their right of salvage. (a) And recaptors and salvors have a legal interest in the property, which cannot be divested by other subjects, without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them without cause. (b) 184

ister to the Admiralty Courts of the United States, giving no opinion on the question beyond declining executive intervention.

The papers on the interesting question of the brig Experience were searched for and exchanged between the two governments by both Earl Russell and Mr. Adams; and Earl Russell stated that there was no evidence in the Foreign Office that the opinion of the law-officer of the crown had been taken in that case, or that any further proceedings were had after the reply of Mr. Pickering. Mr. Adams, on his part, did not press further the case of The Emily St. Pierre, nor attempt proceedings in the Admiralty Courts of Great Britain.

It may therefore be considered as settled by these two cases, that a neutral government is not required, by executive action, to restore a private vessel of one of its citizens which has been rescued by her crew from her captors before condemnation, on demand of the government of the captors. The possessory, belligerent right of the captors is not to be enforced by neutral powers by any positive action in the way of penalty or seizure for restitution. Whether the right can be vindicated by a possessory suit by the captors in the Admiralty Courts of the neutral, has not been judicially determined; but the course of the political departments of both governments, and the reasoning on which they proceeded, seem to settle the judicial as well as the political question.

(Correspondence of Earl Russell and Mr. Adams, from April 24, 1862, to July 21, 1862. U. S. Dip. Corr. 1862, pp. 75-148, at intervals.) See note 175, suprà, on Recaptures; and note 184, infrà, on Salvage for Rescue or Recapture.] — D.

(a) The Charlotte Caroline, Dodson's Adm. Rep. i. 192.

(b) The Blendenhale, Dodson's Adm. Rep. i. 414.

[184 Salvage for Rescue or Recapture. — Where the original crew of a vessel, being in the custody of captors, rise upon them and regain possession, it is called a rescue. But, if the vessel is recovered from the possession of the captors by a force from without, before condemnation, it is a simple recapture. In either case, the retaking being for the benefit of the owners, or held to be so in contemplation of law, if they reclaim their property, a case of salvage is presented. In a case of rescue of a vessel of commerce, the salvage is civil, and the cause does not go into a prize court. Recapture from an enemy is cognizable by a prize court as a belligerent act, and presents a case of military salvage. If, in addition to the belligerent recapture, there has been a voluntary act of saving from a distinct marine peril, beyond the obliga ions of the parties, civil salvage may be combined with the military, and incidentally

Rate of

§ 384. In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the salvage. court, as well upon recaptures as in other cases. (a) And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, the court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary services in rescuing the vessel in distress from the perils of the seas. (b)

time cap

determined

§ 385. The validity of maritime captures must be de- Validity termined in a court of the captor's government, sitting of marieither in his own country or in that of its ally. This tures, rule of jurisdiction applies, whether the captured prop- in the erty be carried into a port of the captor's country, into captor's that of an ally, or into a neutral port.

courts of the

country.

adjudicated by the prize court having cognizance of the recapture. It is the duty of persons in the naval service, in time of war, to recapture as much as to capture; but it is a duty they owe to their government; and the policy and practice has always been, if the owner claims his vessel, to require him to pay salvage to the recaptors, which is in lieu of the prize-money they would receive in case the recaptured vessel had been condemned as prize. The mariner's contract with the owners, in a vessel of commerce, does not oblige him to attempt a rescue, after capture by a belligerent enemy, in such a sense that his refusal or failure to attempt it, in a proper case, would be a breach of his contract. It is, therefore, always a case for salvage. (Two Friends, Rob. i. 271. The Lilla, Sprague's Decisions, ii.; and Law Reporter, xxv. 92. Helen, Rob. iii. 224.)

If a cruiser takes a prize and loses it, whether by rescue, recapture, or otherwise, and she is again captured by a second cruiser of the same nation, it is not a recapture for the benefit of the first captor, subject to salvage, but an original capture. For these and like cases of mixed recapture, see Valin, Traité des Prises, ch. vi. § 1. The Polly, Nov. 21, 1780, Rob. iv. 217, note. The Marguerite, April 3, 1781. Astrea, Wheat. i. 125. Lord Nelson, Edw. 79. Diligentia, Dods. i. 404. John and Jane, Rob. iv. 216. Gage, Rob. vi. 273. Ordonnance de 1681, Des Prises, art. 9, "De Propriété," No. 99. Azuni, Partie II. ch. 4, §§ 8, 9. Emerigon, des Assurances, tit. i. p. 504-5. Phillimore's Intern. Law, iii. § 424. Chitty's Law of Nations, 91. The Short Staple, Cranch, ix. 55. Bello, Princ. de Der. Nat. 193. Henry, Edw. 66.

Salvage is not due to a public ship for extricating another public ship from danger of capture, in a common enterprise. The Belle, Edw. 66. Sir W. Scott said it would be converting every engagement into a struggle for salvage.

As to rights of revenue cutters and privateers in recaptures, see The Wanstead, Edw. i. 369. The Providence, Ib. 270. The Dorothy Foster, Rob. vi. 88. The Bellona, Edw. 63. The Sedulous, Dods. i. 253. U. S. Prize Act 1864, ch. 174, §§ 10, 32, 33. (U. S. Laws, xiii. 306.)] — D.

(a) Talbot v. Seaman, Cranch's Rep. i. 1. Robinson's Adm. Rep. iii. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

(b) The Louisa, Dodson's Adm. Rep. i. 317.