the arbitration shall be paid by the parties to the dispute, subject to an appeal, if the sum in dispute exceeds 501., to the superior courts before-mentioned (e). If the claim for salvage services exceeds 1,000l., and the parties do not consent to the justices, &c., having jurisdiction, the dispute is to be decided by the High Court of Admiralty in England and Ireland, and in Scotland by the Court of Session, subject to the proviso that if the claimant should not recover more than 2007. he shall have no costs of suit unless the court shall certify that the case is a fit one to be tried in a superior court (f); and the certificate will not be granted except in circumstances of difficulty and peculiarity (g). Perhaps since the 25 & 26 Vict. c. 63, s. 49, ante, p. 562, this proviso would apply where the claimant does not recover more than 1,000l. Under the Judicature Acts the court in such a case might make an order depriving the claimant of costs (see O. 55 in Judicature Act, 1875). Chap. 2. The Act does not in express terms authorize the justices to appor- Apportiontion the amount of salvage awarded by them among the salvors. It ment of salvage. has been held that the whole sum awarded having been paid without apportionment to the owner of a ship, he was not liable in an action (e) 17 & 18 Vict. c. 104, ss. 461, 464. In such appeals it is open to the parties to adduce further evidence, if necessary, to elucidate the truth of the case. And this may be done without special application to the court by act on petition and affidavits. But this step will be taken at the peril of costs, if such further evidence shall ultimately appear to the Court of Admiralty to have been introduced without sufficient cause. The Thomas Wood, 1 W. Rob. Rep. p. 18. In cases of appeal from the award of magistrates and commissioners appointed under these Acts to allot salvage on the spot, the Court of Admiralty is reluctant to disturb the decision, unless it appear inconsistent with the established principles by which its own practice is regulated. (The Vesta, 2 Hagg. Ad. Rep. 189. The Brothers, 2 Hagg. Ad. Rep. 195.) But in one case (the Oscar, 2 Hagg. Ad. Rep. 257), Sir CHRISTOPHER ROBINSON reversed the award of magistrates in a case of salvage, and made the following observations:-" The 1 & 2 Geo. 4, c. 75 (the Act then in force), was intended to provide for the reduction of expenses, and to prevent delay in small cases; and although under the general words of the 8th clause, it may be competent to the magistrates to proceed in cases of greater magnitude, it is manifest that the primary object of the Act was to provide for small and occasional services only, such as those specified in the Act; and the magistrates cannot proceed in cases of a higher description with the same pros pect of benefit or advantage to the parties. (f) 17 & 18 Vict. c. 104, s. 460. (g) The Fenix, Swab. 13. The John, Lush. 11. Part VI. against him by a seaman for his share (a), and that a master to whom the whole salvage had been paid, and who retained what he bona fide considered to be his share, was entitled so to do; that his conduct in so doing was no answer to his claim against the owners for wages, and that the owner's remedy was to apply to the court, under sect. 498 of the M. S. Act, 1854, for a distribution of salvage (b). Wreck. Detaining wreck for salvage. If, when the aggregate amount of salvage not exceeding 2001. has been finally ascertained by agreement or by the award of such justices or umpire, a dispute arises as to its apportionment, the person liable to pay the salvage may relieve himself and his property from all further charge or liability, by paying the amount to the receiver of the district, who (if he thinks fit to receive it) is to make a final and conclusive distribution of it among the persons entitled (c). When the aggregate amount of salvage for salvage services rendered in the U. K. has been finally ascertained, and exceeds 2007., and whatever be its amount for salvage services performed elsewhere, and any delay or dispute arises as to its apportionment, any Court of Admiralty jurisdiction may order its apportionment in such manner as may seem just, appoint a person to carry it into effect, and compel any person, under whose control such amount is, to bring it into court, to be there dealt with as the court may direct (d). Unclaimed wreck, whether jetsam, flotsam, lagan, or derelict found in or on the shores of the sea or any tidal water is, in the event of no one establishing his ownership of it before the expiration of a year from the time of its coming into the receiver's possession, to be delivered by him to the vice-admiral, lord of the manor, or other person entitled to it (e). A variety of provisions are also contained in this Act of Parliament as to offences in respect of wreck (f); as to remedies against the hundred in England, and the county in Ireland and Scotland, in case of plunder or destruction of wrecked vessels, or property by tumultuous assemblages, and for regulating the traffic in anchors, cables, sails, old junk, old iron, &c., by dealers in marine stores (g). Wherever any salvage is due, the receiver is to detain the property or wreck saved (if the latter be not sold as unclaimed), until payment of the salvage, or process issued by some competent court for its detention (h). He may release the property on security given to his satisfaction for its payment if the claim for salvage does not exceed 2007. If such claim does exceed 2007., the superior courts above mentioned (see sect. 460, ante, p. 562) may determine the amount of the security; and (a) Atkinson v. Woodhall, 1 H. & C. (b) The Princess Helena, 1 Lush. 190. (d) 17 & 18 Vict. c. 104, s. 498. As to (e) Sects. 471, 475, and the interpretation clause, sect. 2. As to delivery of wreck by receiver not prejudicing title, see 25 & 26 Vict. c. 63, s. 52. As to Crown's right to wreck, see sect. 53 of same statute. (f) Sects. 477, 479; and see 24 & 25 Vict. c. 96, ss. 64-66. (g) Sects. 477, 484. (h) 17 & 18 Vict. c. 104, s. 468, whenever the bond or other security given to the receiver is for an amount exceeding 2007., the salvors or owners of the property salved may proceed in those courts for the adjudication of the questions between them, and the enforcement of the bond or other security (i). If the salvor voluntarily offers to abandon his lien upon the property salved, upon the master or other person in charge thereof entering into a written agreement to abide the decision of a Court of Admiralty, and thereby giving security to such amount as may be agreed on by the parties to such agreement, it shall bind the ship, cargo, and freight, and be adjudicated upon and enforced in the same manner as bonds provided in the case of detention for salvage services rendered by H. M.'s ships (k). Chap. 2. The receivers may sell the property detained, the parties liable to Selling for pay being aware of its detention, for payment of salvage and expenses, salvage. paying the surplus to the parties entitled, when the amount of salvage is not disputed and payment not made within twenty days-when payment is not made within twenty days after the decision of a tribunal from which there is no appeal, and when payment is not made within twenty days after decision of the first tribunal, and no monition or other proceeding for its review issues during that time from a Court of Appeal (1). Subject to the payment of expenses, fees, and salvage, the owner of wreck satisfying the receiver of his claim, is entitled, within one year after such wreck has come into the receiver's possession, to have the same delivered up to him (m). 12. Of Salvage within the Jurisdiction of the Cinque Ports. By the same statute, which has not deprived the Court of Admiralty of its concurrent jurisdiction within the boundaries of the Cinque Ports (n), it is enacted, that disputes with respect to salvage within those boundaries shall be determined (0) in the manner in which the same have hitherto been determined; and as the provisions of 1 & 2 Geo. 4, c. 76, by which the provisions of several previous Acts relating to that jurisdiction were consolidated and amended, have not been repealed-it will be necessary to advert also to the enactments of that statute. The lord-warden, or the deputy-warden and lieutenant of Dover Castle for the time, is to appoint three or more substantial persons in each of the Cinque Ports, two ancient towns and their members, to adjust and determine any difference relative to the salvage, which may arise between the master of any vessel and the person or persons bringing cables and anchors ashore; and in case any vessel shall be (i) Ibid. (k) Sect. 498. (7) Sect. 469. (m) Sect. 470. (n) The Maria Louisa, Swab. 67. The Jeune Paul, 36 L. J. Ad. 11; 4 L. R. Ad. (0) 17 & 18 Vict. c. 104, ss. 460, 476. Part VI. either forced or cut from her cables and anchors by extremity of weather, or by any other accident whatever, and leave the same in any roadstead or other place within the jurisdiction, and the salvage cannot be adjusted between the persons concerned, then the same shall be determined by any three or more of the said persons so to be appointed as aforesaid, within the space of twenty-four hours after such difference shall be referred to them for their determination (a). [The commissioners are authorized to decide on all claims made by any person whatsoever for services of any sort or description rendered to any vessel, as well for carrying out anchors, cables, or stores, from any place within the jurisdiction, as for conducting vessels from the Downs, and other bays and roadsteads on the coast of Kent, Sussex, and Essex, and from the island of Thanet, or from the sea, or any place, to Ramsgate, Dover, or any other place within the jurisdiction, or for the saving or preserving within the jurisdiction any goods or merchandises, wrecked, stranded, or cast away from any vessel, the master or owners thereof, or their agent, being present at the place where the commissioners are sitting; and this whether the ship shall have been in distress or not (b). But no commissioner can act for any other port or place than that in which, or within a mile whereof he is resident (c). And either party may within eight days after the award declare his desire of obtaining the judgment of some competent Court of Admiralty with respect to the salvage or compensation, in which case the party must forthwith declare whether he will proceed in the Admiralty of England, or in the Admiralty of the Cinque Ports, and must proceed within twenty days from the date of the award; and the commissioners are to permit the ship and cargo to depart on their voyage, or deliver the goods to their owners, taking bail in double the amount of the sum awarded (d). An appeal so made is to be final (e). I have been thus particular in arranging and detailing the provisions of these statutes, from a hope that a better knowledge of them may induce the masters of ships in distress to avail themselves of them; and not submit to the very heavy charges too frequently made for assistance on such occasions (f), or incur the expense of litigation in the courts of law.] (a) 1 & 2 Geo. 4, c. 76, s. 1. See 9 Geo. 4, c. 37, s. 1. (b) 1 & 2 Geo. 4, c. 76, s. 2. As to giving notice of meeting to salvors, see the Elise, Swab. 436. (c) Sect. 3. (d) [1 & 2 Geo. 4, c. 76, s. 4.] (e) Sect. 5. As to making a tender on an appeal, see the Annette, 42 L. J. Ad. 13; L. R. 4 A. & E. 9. (f) [The French Ordinance, so often quoted, contains an apparently excellent set of regulations on this subject, liv. 4, tit. 9, Des Naufrages. All vessels, &c., driven on shore, whether belonging to subjects or foreigners, are taken into the King's pos session; the officers of the Admiralty are the persons appointed to preserve and take charge of them, and pay the persons who assist in the salvage, and who are to act under their awards. But there seems to be no proper mode of settling the charges of the officers themselves, no custos custodum; and this defect has probably occasioned the complaints which the commentator informs us have often been made against their con. duct in many places. A year and a day is the period allowed for reclaiming property, after which it is to be sold for the benefit of the Crown. But claims have, in fact, been allowed after that period, as Valin informs us.] 13. Of Salvage on Recapture. [I proceed in the next place to the consideration of salvage payable upon recapture. I have in a former chapter (g) spoken of the subject of capture, and of the alteration of property thereby occasioned. With a view to the subject more immediately under consideration at present, it may be taken as a general proposition, liable only to one exception, which will be noticed hereafter, that the ships or goods of the subjects of this country taken at sea by an enemy, and afterwards retaken at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to their original proprietors upon payment of salvage to the recaptors. This, however, is the result of the peculiar enactments of the Legislature of this country; it is a new and peculiar law made by this country for itself, in favour of merchant property recaptured, introducing a policy not originally adopted by other countries, and differing from its own more ancient practice. By the ancient rule of law, where a ship was taken and carried infra præsidia, and especially after a sentence of condemnation, the ship became the property of the captor; and if retaken, the former owner had no jus postliminii; and this continued to be the general law of Europe down to a very late period (h). With regard to the beneficial interest in the goods of an enemy taken at sea, it was anciently established that in the case of capture by ships in the pay of the King, the King should have one-fourth, the owners of the ships another fourth; and the other moiety be divided among the captors; the admiral taking, if present, the share of two men in each vessel; if absent, of one only; and that in the case of capture by private ships not in the King's pay, the King should claim no part, but the captors take the whole, allowing, however, to the admiral as much as the share of two men (i). But these proportions were occasionally varied at the King's pleasure; and Sir MATTHEW HALE informs us that in his time the admiral had the third of goods taken by private men-of-war as his fee, but in the right of the King (k). The entire beneficial interest was first given to the captors, whether belonging to the royal navy, or private ships of war, by a statute passed in the reign of Queen Anne (1). This statute,] (g) Ante, Part I, Chap. 1, sect. 3, p. 16. (h) [By Sir WM. SCOTT, in the case of L'Actif, 1 Edw. 135.] (i) [Black Book of the Admiralty (a), 19, 20; Clerk's Praxis, p. 163.] (k) [Hale's Treatise, in three parts, part 3, chap. 28; in Hargrave's Law Tracts, p. 247. Two of the Ordinances passed in the time of the usurpation mention "the tenth of prizes customarily due to the Lord High Admiral," and direct the same to be laid () [Anne, c. 13. See Dr. Robinson's note Chap. 2. |