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Of salvage; in belong to share, though actual capture by the boats would be recapture. sufficient for that purpose, for they are a part of the force of the
ship. (a) The admission of a constructive captor to share with the actual captor cannot be so far extended as to let in another ship, which had been a joint chaser, previously with such constructive captor, where there was no contribution of assistance, either virtual or actual, but only a picking up of the boats of the ship, which became afterwards the constructive captor; (b) and the onus probundi lies upon the joint captor to make out his case. (c) Darkness intervening and preventing sight will not universally exclude from a right to share; nor can the opposite rule be universally laid down : but if the asserted joint captor continued steering the same course with the prize, and but for darkness must have been in sight, the Court will sustain the claim. (d) The circumstance alone of being in sight entitles a ship to share in the prize, unless the case fall within the exceptions. (e) But a revenue cutter is not entitled to share with the actual captors, merely on the ground of being in sight. (f). It is a clear rule of law, that when ships are engaged in a joint enterprize, and are acting under the orders of the same superior officer, they are entitled to share in each other's prizes. (8)
XLVIII. We have cited the above cases in order to shew the principle upon which the Court of Admiralty proceeds in determining questions of capture, whether they are joint or several. It is unnecessary to observe that cases of capture frequently resolve themselves into mere cases of recapture, upon which the question of salvage arises. In all cases where the recapture is joint, the court governs itself by the same equitable principles which it applies to the cases of simple recapture, and apportions
the salvage accordingly, Of salvage on XLIX. No rule is prescribed by the law of England in the case rescue.
of foreign property rescued. In cases, of rescue by British subjects, the court usually adopts the proportion of recapture : but it is not bound so to do, neither is the reward limited. In respect to foreigners the only guide is, that of quantum meruit, And every person assisting in a rescue acquires a lien in rem. And the Court of Admiralty will exercise jurisdiction over a foreign ship rescued from the enemy, where there is any British subject concerned in
(a) La Belle Coquette, Dod. 20.
(c) Union Dod. 348.,, and Joha
(d) Union, Dod. 349.
the rescue who prays to be rewarded; and therefore, in a case of Of salvage on salvage on recapture of an American ship by the crew, part of whom were British seamen, and claimed to be rewarded, the court overruled the protest against their jurisdiction. It should seem, moreover, that foreign seamen, rescuing a foreign ship and cargo, and bringing them to this country, might entertain an action in rem in the British Admiralty Courts. (a) In a case of rescue from the enemy on the part of a British master and boy, one-sixth was given as salvage, the court holding it to be a case of great merit. (b)
L. It is the peculiar law of England to restore, to the former owner British property captured and retaken from the enemy; the jus postliminii still remaining so long as the property is in the hands of the enemy. But the prize act (c) does not give restitution where vessels so taken have been sent forth after capture by the enemy for the purposes of war. (d) LI. In the case of the ships recaptured from the French at Of salvage on
recapture by a Oporto, by the allied British and Portuguese army, the court military force. refused salvage on Portuguese property; bụt gave it on British without distinction, including the cargoes which had been relanded and warehoused by the enemy, and estimated the value at the port of restitution. (e) And in the Admiralty Court the army is alone considered as recaptors, and entitled to sustain a claim of salvage for service done without the co-operation of the naval force. (f) But the liberation of the property by the army must be the immediate and direct consequence of military operations, either in the vicinity of the place besieged, or so as to have an immediate influence on its surrender. (g) And possession of the port of the enemy, in which the vessels were contained, was deemed a sufficient capture to entitle the recaptors to salvage, without having actual possession of each individual ship. And it is not necessary that it should be the primary intention of the captors to recover the property: but it will be sufficient if the service be performed, and the recovery of the property be the immediate and necessary result. (h) So persons not in a military capacity, but merely acting as private individuals, if they happen by any successful effort to rescue property from the enemy, will be entitled to salvage. (i) And recapture by the conjunct operations of the
(a) Two Friends, 1 Rob. 279.
(f) Progress, Edw. 210.
Of salvage on military recapture.
army and navy is within the provisions of the prize act, which was drawn only with the intention of expressing the meaning of the law of nations as it at present exists. (a)
LII. In the recapture, of which we have been speaking, the court gave salvage on the freight of those vessels which were chartered for one entire voyage out and home; considering them in the course of earning their freight whilst in the harbour of Oporto. But salvage was not given upon the freight of vessels taken up at Oporto, whose voyage had not commenced. (b)
LIII. In the case of the Actæon (c) salvage was decreed on neutral vessels recaptured from the French, not having certificates of origin on board. The court in this case repeated the wellknown principle, that no salvage was due where a service was not actually performed, or where a loss was not highly probable: but added, that where there was ground to apprehend that the prize court of the belligerent would have considered the capture legal
, the recaptors should be entitled to salvage. (d)
THE NEW NAVIGATION ACTS.
An Act to repeal certain Acts, &c. relating to the Importation
of Goods and Merchandize.-3 Geo. 4. c. 42. W!
HEREAS an act was passed in the Parliament of England, in the English Navi
twelfth year of the reign of his Majesty King Charles the Second, gation Act, for the encouraging and increasing of shipping and navigation : and
12 C. 2. c. 18. whereas by an act passed in the Parliament of Ireland, in the twentyseventh
of the reign of his late Majesty King George the Third, Irish Naviintituled 5 An Act for the further Increase and Encouragement of gation Act, Shipping and Navigation,” it was enacted, that the said recited act 27 G. 3. c. 23. passed in England, in the twelfth year of the reign of King Charles the Second, and every provision therein contained, (so far as the same are not altered or repealed by the said act of the Parliament of Ireland) should be of full force and effect within Ireland : and whereas divers acts have been from time to time passed for the further regulation of amended by shipping, navigation, and commerce; and it is expedient that certain of acts which it the provisions contained in the said several acts relating to the countries is expedient to from whence, and the ships in which goods and merchandize shall be repeal, &c. imported into any part of the United Kingdom of Great Britain and Ireland, should be repealed, in order that other regulations relating to such importation may be declared, consolidated, and comprised in one act passed for that purpose: may it therefore please your Majesty that it may be enacted; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that from and after the passing of this act, so Repeal of much of the said recited act, passed in the twelfth year of the reign of his 12 C. 2. c. 18. Majesty King Charles the Second, intituled “ An Act for the encourag- s. 3. as to iming and increasing of Shipping and Navigation,” shall be repealed, portation of whereby it is enacted, that no goods or commodities whatsoever, of the Africa, or Amegrowth, production, or manufacture of Asia, Africa, or America, be rica, in British imported into England, Ireland, or Wales, the islands of Guernsey or ships only. Jersey, or town of Berwick upon Tweed, in any other ship or ships, vessel or vessels whatsoever, but in such as do truly and without fraud
belong only to the people of England or Ireland, dominion of Wales, or town of Berwick upon Tweed, or of the lands, islands, plantations, or territories in Asia, Africa, or America, to his Majesty belonging, and whereof the master and three-fourths of the mariners at least are English, under the penalty in the said act mentioned; and so much and such parts
of the said recited act is hereby repealed accordingly. Repeal of s. 4. II. And be it further enacted, that from and after the passing of this of the same act, act so much of the said recited act of the twelfth year of the reign of as to the im
King Charles the Second, for the eńcottaging and increasing of shipping portation of gouds of Asia, and navigation, shall be repealed, whereby it is enacted, that no goods &c. directly or commodities that are of foreign growth, production, or manufacture, from the
place and which are to be brought into England, Ireland, Wales, the islands of their growth of Guernsey and Jersey, or town of Berwick upon Tweed, in English.
built shipping, or other shipping belonging to some of the aforesaid places, and navigated by English mariners, shall be shipped or brought from any other place or places, country or countries, but only from those of the said growth, production, or manufacture, or from those ports where the said goods and commodities can only be or are or usually have been first shipped for transportation, and from none other places or countries, under the penalty in the said act mentioned ; and so much and such part
of the said recited act is hereby repealed accordingly. Repeal of s. 8. - III. And be it further enacted, that from and after the passing of this of the same act, act so mứch of the said recited act of the twelfth year of the reign of as to the im
King Charles the Second, for the encouraging and increasing of shipping portation of goods of Rus-' and navigation, shall be repealed, whereby it is enacted, that no goods sia, and certain or commodities of the growth, production, or manufacture of Muscový, enumerated
of the countries, dominions, or territories to the great duke or European
emperor of Muscovy or Russia belonging, as also that no sort of masts, goods, and Turkish goods, timber, or boards, no foreign salt, pitch, tar, rosin, hemp, or flax, raisins, in British ships, figs, prunes, olive oils, no sorts of corn or grain, sugar, pot-ashes, wines
, or ships of the vinegar, or spirits called aqua vitæ, or brand -wine, shall be imported country of their growth.
into England, Ireland, Wales, or town of Berwick upon Tweed, in any ship or ships, vessel or vessels whatsoever, but in such as do truly and without fraud belong to the people thereof, or some of them, as the true owners or proprietors thereof, and whereof the master and three-fourths of the mariners at least are English; and that no currants not commodi. ties of the growth, production, or manufacture of any of the countries
, islands, dominions, or territories to the Ottoman or Turkish empire belonging, shall be imported into any of the aforementioned places
, in any ship or vessei but which is of English-built, and navigated as afore said, and no other, except only such foreiga ships and vessels as are of the built of that country or place of which the said goods are the growth
, production, or manufacture respectively, or of such port where the said goods can only be or most usually are first shipped for transportation, and whereof the master and three-fourths of the mariners at least are of the said country or place, under the penalty in the said aćt mentioned'; and so much and such part of the said recited act is hereby repealed
accordingly. Repeal of s. 12, IV. And be it further enacted, that from and after the passing of this 14, of the same act so much and such parts of the said recited act of the twelfth year of to goods of the the reign of King Charles the Second, for the encouraging and increasing Streights,
of shipping and navigation, shall be repealed, as relate to the importation Spain, and
of any of the commodities of the Streights of Levant Seas, or to the Portugal. importation of all sorts of goods or commodities of the growth, production
or manufacture of the plantations or dominions of Spain of Portugal