it is the duty of every citizen to assist his fellow-citizens Chap. II. 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 (p). And if a convoying ship recaptures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage (q). But a mere rescue of a ship engaged in the same common enterprise gives no right to salvage (r). $ 382. Actual rescue nécessary for salvage for recapture. To entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture; military for military salvage will not be allowed in any case where the property has not been actually rescued from the enemy (s). 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 (t). 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 (u). 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 (2). 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, the right of the original captors is entirely divested (y). Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property (2). But if the abandonment be involuntary, (p) The Helen, 3 C. Rob. 224. (a) The Wight, 6 Ib. 315. (s) The Franklin, 4 C. Rob. 147. (t) The Edward and Mary, 3 Ib. 305; The Pensamento Felix, Edw. Ad. 116. (u) The Franklin, 4 C. Rob. 147. (x) The Edward and Mary, 3 Ib. 305. (2) The Lord Nelson, Edw. Ad. 79; Part IV. 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 (a). 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 (b). 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 (c). 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 (d). 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 (e). 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 (ƒ). And the same principle seems applicable to a hostile rescue, but 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 (a) The Mary, 2 Wheaton, 123. (b) The John and Jane, 4 C. Rob. 216. (d) The Mary Ford, 3 Dallas, 188. (e) The Adventure, 8 Cranch, 227. (f) Hudson v. Guestier, 4 Cranch, 293; S. C., 6 Ib. 281; The Diligentia, 1 Dods. Ad. 404. prize courts of the captor's country, to divest his original Chap. II. right in case of a subsequent recapture. St. Pierre. $382a. An interesting illustration of the law respecting the rescue of a cap- Case of tured neutral ship by part of her own crew occurred during the The Emily American civil war. The Emily St. Pierre, a British ship, was on a voyage from Calcutta with orders to make the coast of South Carolina, and ascertain whether it was still under blockade. If so, she was to go to New Brunswick; if not, she was to enter Charlestown harbour. She had no contraband on board. While heading for Charlestown, and about ten or twelve miles from shore, she was seized by one of the blockading cruisers, on the 18th March, 1862. Her crew were taken out, except the master, cook, and steward, who were kept on board to give evidence before a Prize Court. Two officers and thirteen men were put on board, and ordered to take her to Philadelphia. On their way thither, the three prisoners rose against their captors, disarmed, and secured them, and, with the assistance of three or four of the prize crew, who volunteered to lend a hand rather than remain confined, but who were all landsmen, managed to take her to Liverpool. Mr. Adams demanded the restitution of this vessel, and cited the cases of The Catherine Elizabeth (g) and The Despatch (h), as evidence of Lord Stowell's condemnation of such a proceeding. Lord Russell, however, declined to seize the ship and give her up to the United States, on the ground that Her Majesty's Government had no jurisdiction or legal power to take or to acquire possession of her, or to interfere with her owners in relation to their property in her (¿). "Acts of forcible resistance," said his Lordship, "to the rights of belligerents, when lawfully exercised over neutral merchant ships on the high seas, such, for instance, as rescue from capture, however cognisable or punishable as offences against international law, in the Prize Courts of the captor administering such law, are not cognisable by the municipal law of England, and cannot by that law be punished either by confiscation of the ship, or by any other penalty; and Her Majesty's government cannot raise in an English court the question of the validity of the capture of The Emily St. Pierre, or of the subsequent rescue and recapture of that vessel, for such recapture is not an offence against the municipal law of this country" (i). The discussion ended by its being discovered that in 1800 England had asked the United States to do precisely the same thing, and that the American Government had refused to comply on the very grounds put forward by Lord Russell (k). It may therefore be taken as a settled point, that if a neutral vessel is captured by a belligerent cruiser, and before condemnation she manages to escape and reach her own country, the neutral government is not bound to surrender her to that of the captor. (g) 5 C. Rob. 232. (h) 3 C. Rob. 278. (i) Earl Russell to Mr. Adams, 7th May, 1862. U. S. Dipl. Cor. 1862, p. 87. Part IV. § 383. Salvage on second recapture. $384. Rate of salvage. $384a. Joint capture of prize. 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 (m). 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 (n). 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 (o). 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 (p). All parties who have been instrumental in capturing property are entitled to share in the proceeds as joint captors. In naval warfare there is a distinction between the rights of privateers and those of public ships with regard to joint capture. A public ship, when in sight at the time the prize is taken, is considered as constructively assisting, and therefore entitled to share in the capture, while a privateer under similar circumstances is not regarded as a joint captor, unless she directly contributes to the seizure (9). This is founded upon the fact that privateers, being fitted out for private gain, are not bound to put their commissions in use on every discovery of the enemy, whereas public ships, being under a constant obligation to attack when the enemy comes in sight, are presumed to be there animo capiendi (r). As a rule, when ships are associated in the same enterprise and under (m) The Charlotte Caroline, 1 Dods. Ad. 192. (n) The Blendenhale, 1 Dods. Ad. 414. (0) Talbot v. Seeman, 1 Cranch, 1; 3 C. Rob. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. (p) The Louisa, 1 Dods. Ad. 317. Jecker v. Montgomery, 13 Howard, 515. (9) Phillimore, vol. iii. § 388; The Dordrecht, 2 C. Rob. 55; Talbot ▾. Three Briggs, 1 Dallas, 103; The Forsigheid, 3 C. Rob. 311. And see The Mangrove Prize Money, 188 U. S. Reports, P. 720. (r) Halleck, ch. xxx. § 7. The Santa Brigada, 3 C. Rob. 52. the same superior officer, all are entitled to share as joint captors, it being then only necessary to prove what ships actually formed part of the fleet at the time of capture (s). If, however, a part of the fleet is detached on a separate service, or if the detached vessels are out of the scene of the common operations for the time, the prize then belongs to the actual captors alone (t). During the Crimean War, France and England agreed (1), that a joint capture made by the naval forces of both countries should be adjudicated on in the country of the highest naval officer concerned in the capture, and, (2), that in the case of a capture made by the cruiser of one nation, in sight of a cruiser of the other, such cruiser having thus contributed to the intimidation of the enemy, the adjudication thereof should belong to the jurisdiction. of the actual captor (u). The rights of joint captors on land are not the same as those of naval captors. Joint captors are those who have assisted, or are taken to have assisted, the actual captors by conveying encouragement to them, or intimidation to the enemy. On land the union of the joint captor with the actual captor under the command of the same officer, alone constitutes the bond of association which the law recognizes as a title to joint sharing. Community of enterprise does not constitute association, and is equally insufficient as a ground for joint sharing, if the bond of union, though originally well constituted, has ceased to be in force at the time of the capture. The distinctions between captures on land and captures at sea tend to show that in considering joint capture of booty, a wider application than is recognized in prize cases must be allowed to the term "co-operation," concerted action on a vaster scale than is feasible at sea being indispensable to a campaign. The rule of sight, too, which prevails at sea, is inapplicable on land. The general rule for the distribution of booty, to be adhered to as far as possible, in accordance with naval prize decisions, is the rule of actual capture. The association entitling to joint sharing must be military, and not political, and must be under the immediate command of the same commander. The co-operation which is necessary as a title to joint sharing, is a co-operation tending directly to produce the capture in question (x). (8) The Guillaume Tell, Edw. Ad. 6. Halleck, ch. xxx. § 11; Phillimore, vol. iii. § 398. The Forsigheid, 3 C. Rob. 311. (t) Phillimore, vol. iii. § 398. The Forsigheid, 3 C. Rob. 311; The Augusta, Marsden, Adm. Cases, 167.. Ships of war are entitled to share in all captures made by their tenders: The Carl, 2 Spinks, 261. (u) Convention of 20th May, 1854. W. As to the proceedings of joint captors (x) The Banda and Kirwee Booty, L. R. M M Chap. II. § 384b. Joint capture of booty. |