Denmark condemned after twenty-four hours' possession by the enemy, and restored if the property had been a less time in the enemy's possession, upon the payment of a salvage of one-half the value of the property recaptured; but the ordinance of 1810 restored Danish, or allied property, without regard to the time it had been in the enemy's possession, on the payment of salvage of one-third the value. With respect to Sweden, the ordinance of Charles XI. enacted, 'that in case a ship belonging to Swedish subjects, after having been taken by the enemy, should be retaken, the recaptor should have two-thirds of its value, and a third should be restored to the proprietor, without respect to the time during which it might have been in the enemy's hands. The ordinance of 1788 made the same provisions, only changing the rate of salvage to one-half of the value of the property recaptured. There were many and great variations in the laws promulgated, at different times, by the States-General of the United Provinces. The ordinance of 1659, without making any distinction between the times of recapture and the quality of the recaptors, allowed a salvage of only one-ninth of the vessel and cargo. But the ordinance of 1677 directed, with respect to privateers, that a salvage of one-fifth should be allowed in case of recapture before the property had been forty-eight hours in the enemy's possession, of one-third if more than fortyeight and less than ninety-six hours, and one-half if beyond that time. It was understood that the ordinance of 1659 was continued in force with respect to recaptures made by ships of war. It is thus seen that the States-General allowed restoration in all cases, the rates of salvage being different according to the character of the recaptor and the length of time the captured property had remained in the possession of the enemy.1 1 The 'Santa Cruz,' 1 Rob., 58; Hautefeuille, Des Nations Neutres, tit. xiii. ch. iii.; Emerigon, Traité des Assurances, ch. xii. § 23; Azuni, Droit de la Mer, pt. ii. ch. iv. § 11; Pistoye et Duverdy, Des Prises, tit. vii.; Abreu y Bertodano, Coleccion, &c., pt. ii. p. 371; Martens, Essai sur Armateurs, pp. 49, 200; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. 5. An American ship was taken by a privateer, A., who kept possession ten days, when the prize was retaken by an American cruiser, B., who kept possession thirteen days. It was then again recaptured by a British cruiser, C., at the time of whose recapture of her the prize master and crew of A., the first captor, were on board the prize. Held that A. was to be Sentence considered as the actual captor, and C. as the recaptor. accordingly; salvage awarded to the recaptor equivalent to the share of a joint captor. (The 'Lucretia,' Hay and Marriott, 227.) of salvage on recap § 18. It appears from the foregoing synopsis of the laws Quantum of recapture, that there has been no uniform or fixed rule as to the quantum of salvage to be allowed in cases of recapture tures of a foreign vessel or foreign goods. This is still the case, the rates being different in different countries, and even in the same country. In the United States the amount of salvage is regulated by the law and usage which the government to which the person claiming the vessel or goods belongs applies, under like circumstances, to the vessels and goods of the United States; and where no such law or usage is known, the same salvage is allowed as in the case of recapture of the property of its own citizens. In France, and other States on the Continent, the rate of salvage varies with the length of time the property recaptured has been in the enemy's possession. A distinction is also made in the rate of salvage allowed to a privateer and to a government vessel, the allowance to the former being usually much larger than to the latter. It being the duty of every citizen to assist his fellow citizens in war, and to retake their property out of the enemy's possession, no commission is necessary, and non-commissioned vessels are usually allowed the same amount of salvage on a recapture as commissioned vessels.1 property § 19. Neutral property recaptured from the enemy, if not Recapture subject to condemnation by the rules of international law, is of neutral not subject to pay salvage to the recaptor. This rule is founded upon the supposition that justice would have been done if the vessel had been carried into the enemy's port, and that if injury had been sustained by the act of capture, it would have been redressed by the tribunal of the country to whose cognisance the case would have been regularly submitted. This is a presumption which is to be entertained in favour of every State which has not sullied its character by gross violations of the law of nations. Thus, a Spanish vessel, bound from Monte Video to London, was recaptured from a French privateer, after recapture from a British priva teer. No edict was produced from the French code to show that the vessel would have been subject to condemnation in a 1 The 'Robert,' 3 Rob., 194; the 'Helen,' 3 Rob., 224; the 'Urania,' 5 Rob., 148; the 'Progress,' Edw. R., 215 ; the 'Hope,' Hay and Marriott, R., 216; the 'Two Friends,' 1 Rob., 271; the 'Mary,' 5 Rob., 200; Talbot v. Seaman, 1 Cranch. R., 1; the ‘Adeline,' 2 Cranch. R., 244, 287. International law on salvage prize court of France, and salvage was pronounced not to be due. But if it be shown that the recaptured vessel of the neutral would, in all probability, have been condemned if she had been carried into the enemy's ports and subjected to the decisions of the enemy's tribunals, a real benefit has been conferred upon the neutral by the recapture, and a reasonable salvage will be allowed. Thus, where a neutral vessel, retaken from a French captor, was bound to a neutral port without certificates of origin on board, salvage was allowed on the ground that she would have been condemned by a French prize court. So where the recaptured vessel would have been liable to condemnation under the French decrees prohibiting neutral trade with Great Britain.' § 20. The allotment of salvage, where the recaptured property is claimed by subjects of the same State, is properly regulated by municipal law; but where it is claimed by subjects of allies or alien friends, the allotment of military salvage is properly a question of international law; so, also, of civil salvage, where the quantum meruit is the only rule for apportioning the remuneration. But, as already remarked, there being no well-established rule of international law universally acknowledged, with respect to the legal status of captured property, between the time of pernoctation, or twenty-four hours' possession, and the condemnation by a competent court of prize, restitution, in case of recapture between these periods, is not regarded as a matter of strict right, but, in a measure, one of favour and relaxation; and the belligerent recaptor 1 Kent, Com. on Am. Law, vol. i. p. 112; Phillimore, On Int. Law, vol. iii. § 422; Pistoye et Duverdy, Des Prises, tit. vii. ch. ii. A vessel which had been used by the enemy, without the knowledge of her owners, and had been recaptured from the enemy, was restored by consent, with costs to the libellants, in the case of the Henry C. Brooks' (Blatchf. Pr. Cas., 99). A neutral vessel recaptured from the enemy may, if necessary for mutual safety and interest of herself and the recaptors, be equipped, armed, and employed at her own risk in protecting herself and the recaptors from the attack of the enemy's cruisers. The claim of the neutral owners for restitution in value, in consequence of their ship having become a wreck whilst and in consequence of being so employed, was pronounced against, affirming the sentence of the Vice-Admiralty Court of Jamaica. (The 'Swift,' Acton, 1.) Recaptors are under a responsibility to restore the property of allies and neutrals, and this responsibility will exonerate the original captors, unless it can be shown that the original captors so dealt with the property and accompanying documents, that it could not be ascertained to be neutral, on the just and uniform principles of the Law of Nations, when it came into the prize court of the recaptors. (The 'Betsey,' 1 Rob., 96.) certainly is justifiable in annexing conditions to his liberality. But where the restitution is regarded as a positive obligation on the part of the recaptor, and as a right which may be demanded by the owner of the recaptured property, it seems unreasonable and contrary to the principles of postliminy, that any heavy salvage should be allowed. Where, however, a positive benefit has been conferred, it is proper that the recaptor should be rewarded for his risk and trouble. Moreover, this remuneration should be sufficient to serve as an incentive to vessels of the belligerent to use their best endeavours to rescue from an enemy the property which he has captured from their own citizens and allies, as well as from alien friends. Such views seem to have influenced the drafting of the Statutes of the United States, on the allotment and quantum of salvage in cases of recapture by American vessels.' and civil § 21. There is an obvious distinction between military and Military civil salvage, the former being allowed for rescuing vessels or salvage goods from an enemy, and the latter for assistance rendered to a vessel or its cargo derelict at sea. Thus if 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. The same salvors, however, may, in some cases, be entitled to both these kinds of salvage; thus, where, upon a recapture, the parties have entitled themselves to a military salvage under the prize law, 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 sea.2 rules of military § 22. The following special rules respecting military sal- Special vage are collected by Wheaton from the decisions of English and American courts of prize. If a convoying ship recaptures salvage one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage; but a mere rescue of a ship engaged in the same common enterprise gives no right to salvage. Military salvage will not be allowed in any case where the property has not been actually rescued from the enemy. It is not necessary that the enemy should have 1 Chitty, Law of Nations, pp. 105-107; the Two Friends,' 1 Rob., 271; the 'Johann,' 1 Rob., 38; U. S. Statutes at Large, vol. ii. p. 16. 2 The Louisa,' 1 Dod. R., 317; the Franklin,' 4 Rob., 147; the 'Sir Francis,' 2 Hagg. R., 156; the 'Sir Peter,' 2 Dod. R., 73; the 'Beaver,' 3 Rob., 292. actual possession; it is sufficient if the property is completely under his dominion: nor is it necessary that the recaptors should have actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are entitled to restitution on paying salvage, but the last captors are entitled to the whole rights of prize, for by the first recapture the right of the original captors is entirely divested. Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property. 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. Where the original captor abandons his prize, whether voluntarily or through terror, and it is then recaptured, it is restored on payment of salvage, for the original owner never had the animus delinquendi. As to recaptors, although their right of 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 judicial acquittal, or a release by the sovereign power, the recaptors are reintegrated in their right of salvage. 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, on the ground of superior authority, to dispossess them without cause. In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the court, as well upon recaptures as in other cases.1 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 12; the 'Wight,' 6 Rob., 315; the Belle,' 1 Edwards R., 66; the Franklin,' 4 Rob., 147; the Edward and Mary,' 3 Rob., 305; the Pensamiento Feliz,' 1 Edw. R., 116; the 'Astrea,' i Wheat. R., 125; the Lord Nelson, 1 Edw. R., 79; the Diligentia,' 1 Dod. R., 404; the Mary,' 2 Wheat R., 123; the John and Jane,' 4 Rob., 216; the Gage,' 6 Rob., 273; the Charlotte Caroline,' i Dod. R., 192; the 'Blendenhall,' Dod. R., 414; the 'Apollo,' 3 Rob. R., 308; Talbot v. Seaman, 1 Cranch. R., 1; the 'Barbara,' 3 Rob., 171; the 'Helen,' 3 Rob., 224; the Polly,' 4 Rob., 227, note; the 'Mary Ford,' 3 Dallas R., 188; the Adventurer,' 8 |