admiral, Captain Dickinson sailed from Rio de Janeiro to effect that Chap. 2. object. In the meantime, all the assistance that could be afforded by concerted measures had been supplied. Stores and men had been furnished from other ships. Two vessels were put under Captain Dickinson's command. A net to inclose the cove, and a suspension cable, had been proposed by the admiral, and constructed from the public stores; and other things, to a small amount at least, had been procured at the admiral's cost. There was much dispute as to whom the merit of particular contrivances and inventions used in the service was due; but it was clear, that the admiral had done every thing that an active and intelligent commander could do to promote and forward the enterprise, and that Captain Dickinson, by his ingenuity and exertions, fully justified the choice which had been made of him. as the dux facti, or person to whom the immediate command of the enterprise was entrusted.

A large amount of treasure was recovered; and the question was whether the admiral or Captain Dickinson was to be considered as the principal salvor, and whether the former could be considered to have rendered such effective assistance as would entitle him to claim anything in the character of salvor.

"Salvage," said Sir JOHN NICOLL, "in its simple character, is the service which those who recover property from loss or danger at sea render to the owners, with the responsibility of making restitution, and with a lien for their reward. It is personal in its primary character, at least, and those who are so employed in the service arc those whom the law considers as standing in the first degree of relation to the property and to the proprietors. This is necessary for the protection of the owner, who ought not to be burthened with artificial claims, and it is the natural mode of tracing effects to their efficient causes: for by whom can the service be said to be ostensibly performed, but by those who recover the thing; and on whom can the duty of restoring it lie, but on those who actually regain the possession? These are the principles by which the court proceeds in compelling restitution, when necessary, or in assigning a reward. It looks primarily to the actual salvor, and has uniformly rejected all claims founded on prerogative rights, as of the Lord High Admiral in former times, of lords of manors, of magistrates, and of flag-officers, except with reference to assistance substantially and beneficially afforded. Captain Dickinson stands indisputably in the character of actual salvor, but his claim rests upon some averments that are not, in my view of the case, agreeable to the facts. He says, he was entirely dependent on his own skill and resources, and was in effect wholly uncontrolled in the direction of the salvage service, and never received from the admiral instructions in what manner the treasure was to be recovered. So far as it is meant to represent his acts as entirely independent of the admiral, I must say the log, and the journal, and his own correspondence describe a service of a very different kind. The history of his appointment and recalls, the demand for supplies of naval stores, the compliance with those demands on the responsi

Part VI. bility of the admiral when necessary, the constant communication, if not submission, of all his plans and intentions for the admiral's approbation and sanction, and the entire want of means to effect the service by his own resources alone, bespeak a case quite at variance with this averment, and quite out of the ordinary class of independent and individual service.

"It is alleged also on his behalf, 'that there is no principle of constructive assistance in civil salvage, and that no admiral or commanding officer of a station, not being an actual salvor, but merely by virtue of such command, has any right to claim to share in the salvage carned by, and awarded to, a ship belonging to such station.' There is no difficulty in acceding to this proposition, as expressed in these terms. What is earned by or awarded to a ship, will not be disturbed by secret constructive claims; but that will not exclude a claim from being propounded on behalf of an admiral on special grounds of extensive contribution of assistance: and in regard to the description of the admiral's service in this case, as mere constructive assistance, I think it went much beyond that, and what is proposed as the test of that principle, the performance of mere official duties. I shall not undertake to define precisely what that line is, nor shall I enter into a scrupulous examination of what such an officer might be required to do in other cases. The services which Admiral Baker represents himself to have performed, beyond the disputed merit of originating and directing the service, are, that he furnished men and stores from the ships on his own responsibility, and procured some things at his own cost and credit. It is objected, however, that Admiral Baker made no considerable advances till the adventure had become productive; but it is admitted that he authorized Captain Dickinson to procure some articles to the amount of 100l., and we may infer from this admission what he was disposed to do if necessary. It was material also, as indicating the general understanding of the parties on this subject. The admiral also made insurances, and kept up a correspondence with the underwriters in this country, and with the Admiralty; and it does not appear to me that he obtained from either any funds or assurance of indemnity. The letters from the Admiralty of the 19th of February, and 11th of August, 1831, have been exhibited; and they imply that Admiral Baker was considered by the Admiralty as intimately connected with the operations; they refer him very much to his own judgment and discretion as to what might be proper to be done, saving only, says the latter despatch, 'that the public were not to be put to any expense by the endeavours to save the treasure, beyond the use of the ships and crew, when the service would admit of it.' This letter alone, if it were necessary to rely upon it, would, I think, be almost sufficient to give a special character to this service. It invests it, as to the salvors, with some degree of public authority, and imposes on the admiral the responsibility of doing what was proper, with very little assistance or direction either from the underwriters, representing the owners, or the Government; I think, that the responsibility was very beneficially discharged. Had there been any intrusion on the rights

or interests of the owners in this act of the Government, it might Chap. 2. have been a good ground of objection on their part, and might have affected the whole question; but the contrary was the fact. The underwriters were in communication with the Admiralty, and appear to have been privy to all that was done. If, then, admirals can be entitled at all, for anything but mere personal presence and exertion, it must be for such services as these, which were infinitely more conducive to the success than the admiral's own personal presence could in this instance have been. The case of the Aquila, which has been so much relied on, seems to admit that some services might have entitled even a magistrate, though it is not said what they should have been. It would be saying nothing to require personal service; since, then, such persons would not be distinguished from any other. The exception supposed in that case is, in my judgment, very applicable to the present, as authority for what I am disposed, on the effect of general principle alone, to hold, and on these observations I shall pronounce that Admiral Baker is entitled to share as having contributed effective assistance; and deeming it expedient, in a case of novelty, to act as far as I am able, on rules and principles established in analogous cases, and thinking that the proportion allowed in other civil cases will not be unfit to be applied to this, I shall adopt the rule of the prize proclamation."

This casc was one of extraordinary service, requiring great resources, much previous preparation and assistance, without which the personal exertions of the actual salvors could have produced no beneficial result. It must be considered rather as an exception to the general rule-that those only who were actually occupied in effecting a salvage service are entitled to share in a salvage remuneration,

The ship Vine (a), in distress near the Needles, was assisted for three days and nights, and finally towed into Portsmouth by thirty sailors, eight of whom were employed on the Coast-Guard Service, under the command of Lieutenant Porter, R.N., who did not accompany them. A separate claim of salvage being made for this officer, it was alleged on his behalf, "that his men " had proceeded, under his directions, in the revenue galley to the assistance of the vessel, that he gave them instructions, and also sent off a pilot boat to aid their exertions.

Lord STOWELL said, "In this case what did Lieutenant Porter do? He permitted the men, under his command, to perform with the boats a salvage service; and on the ground of policy I think that officers of the Preventive Service should suffer their boats to assist vessels in distress; but such a permission may have its inconveniences, and it may sometimes be a matter at least for consideration, how far the men employed in protecting the revenue ought to be allowed to quit the particular service for which they are engaged. The

(a) The Tine, 2 Hagg. 2. See the Nile, 44 L. J. Ad. 38; L. R. 4 A. & E. 449,

where an officer of a Queen's ship directed
the salvage.

Part VI. nature and duties of this arduous service are a sufficient reason for Lieutenant Porter not going out in person with assistance to this vessel but to acknowledge him as a salvor would be to introduce a sort of prize principle very inapplicable to cases of this description. In cases of prize, a commander on shore, if the capture takes place within the limit of his station, is considered as the manager of the whole transaction, and the property being condemned, he is entitled to his proportion; but in questions of salvage the court must not act upon the same liberality of principle that belongs to prize cases. Here all is to be paid out of the pockets of the British owner; he alone is to pay all demands. The application, I repeat, is novel, and, in dismissing it, I go as far as I can in allowing Lieutenant Porter his expenses.

And voluntary agreements entered into between the officers and crew of a Queen's ship, or of any other ship, and the master or other person in charge of a ship, whereby the salvors agree to abandon their lien upon the ship or other property salved, and to abide the decision of a Court of Admiralty on their claims, taking security on that behalf to such amount as may be agreed on, shall, as in the case of bonds given to officers of H. M.'s ships, be binding on the ship, freight, and cargo salved, and adjudicated upon and enforced in the same manner (a).

As to a stipulation by a scaman to abandon any right he may have in the nature of salvage being inoperative, sce 17 & 18 Vict. c. 104, s. 182, Appendix.

7. Of Salvage for Preservation of Life.

Formerly, if the preservation of life could be connected with the preservation of property, whether by accident or not, the Court of Admiralty took notice of it, but had no original power of remunerating for the mere preservation of life, which was left to private bounty (b).

By 17 & 18 Vict. c. 104, it is provided that there shall be payable by the owners of any ship or boat, stranded or otherwise in distress on the shore of any sca or tidal water within the limits of the U. K., to those by whom the service of saving the lives of persons belonging to such ship or boat, shall be rendered a reasonable amount for salvage and expenses (c), that salvage in respect of the preservation of the lives of any persons on board such ship or boat shall be payable by its owners in priority to all other claims for salvage, and that if the property be insufficient for this purpose, and for the payment of the expenses incurred in the salvage service, the Board of Trade may

(a) 17 & 18 Vict. c. 104, s. 497.

(2) The Aid, 1 Hagg. 156. The Zephyrus,

1 W. Rob. 331. The Ardincaple, 3 Hagg. 151.

(c) 17 & 18 Vict. c. 104, s. 458.

in its discretion award out of the Mercantile Marine fund to the life salvors such sum as it deems fit, in whole or part satisfaction of the amount of salvage left unpaid (d). Being now empowered to do so, the Court of Admiralty will always take this service into its special consideration (e).

The salvation of life is the most important of all elements in estimating the value of a salvage service. Dr. LUSHINGTON, on a value of 4,1327. has awarded 1,1807. to the salvors of life, and 4807. to the salvors of property (f).

"Whatever," said the learned judge in another case (g) may have been the state of the law before, the court is now bound to take into its special consideration the salvation of human life, and to give a corresponding reward. An agreement between salvors and the agent of the salving ship, to leave the amount of their remuneration to his award, has been held inequitable, and not such as to absolve the Court of Admiralty from the duty cast upon it by that Act (h), of apportioning an ascertained amount of salvage reward among those who have taken part in the salvage service (i)."

And by 25 & 26 Vict. c. 63, s. 59, the provisions concerning salvage of life may with the consent of any foreign country be applied to its ships on the high seas (k).

8. By whom and in respect of what Interest Salvage is payable.

With respect to the parties liable to pay salvage, and the interest in respect of which it is payable, the rule is, that the property actually benefited is alone chargeable with the salvage recovered. If at the time of the salvage service the earning of the freight has commenced, and it be afterwards actually earned, it is liable to pay salvage as well as the ship and cargo (1).

A chartered ship at a monthly freight was captured and recaptured on her homeward voyage. The owner and charterers having respec

(d) Sect. 459. This Act was held not to authorize the Court of Admiralty to award salvage for life on the high seas at a distance of more than three miles from the shore of the U. K. The Joannes, 1 Lush. 182. See post, &c. But by 24 Vict. c. 10, s. 9, it is now enacted that "All the provisions of "The M. S. Act, 1854,' in regard to salvage of life from any ship or boat within the limits of the U. K., shall be extended to the salvage of life from any British ship or boat, wheresoever the services may have been rendered and from any foreign ship or boat, where the services have been rendered either wholly or in part in British waters." As to the power of the Board of Trade to direct payments to be made for affording assistance for the preservation of life in cases of distress at sea, &c., see 17 & 18 Vict. c. 120, s. 7.

(e) The Bartley, Swab. 198. The Coromandel, ibid. 205. Salvors of life are entitled to salvage reward from the owners of cargo, subsequently rescued by the owners of the cargo. The cargo ex Schiller, 46 L. J. Ad. 9. The Fusilier, 34 L. J. Ad. 25.

(f) The Eastern Monarch, 1 Lush. 81. The Thomas Fielden, 32 L. J., P. M. and A. 61.

(g) The Bartley, Swab. 180. The Coromandel, Swab. 205. The Joannes, 1 Lush. 182.

(h) Sect. 498.

(i) The Enchantress, 1 Lush. 93.

(k) The Willem III., L. R. 3 A. & E. 487. (1) The Dorothy, 6 Rob. 98. The Progress, Edw. 210. As to life salvage, see sect. 459.

Chap. 2.