Sec. 17. Salvage introduced or acknowledged by Great Britain. Thus it was established by several Acts of Parliament that the maritime right of postliminium shall subsist even to the end of the war; and, therefore, the ships or goods of the subjects of this country taken at sea by an enemy, and afterwards retaken, even at any indefinite period of time, and whether before or after sentence of condemnation, are in general to be restored to the original proprietors, but subject to certain specified exceptions, and, in general, also subject to the payment of salvage to the recaptor.' "As to ships and goods captured at sea and afterwards. recaptured, rules are adopted somewhat different from those which are applicable to other personal property. These rules depend upon the nature of the different classes of cases to which they are applied. Thus the recapture may be made either from a pirate; from a captor clothed with a lawful commission, but not an enemy; or, lastly, from an enemy. "In the first case there can be no doubt the property ought to be restored to the original owner; for as pirates have no lawful right to make captures, the property has not been divested. The owner has merely been deprived of his possession, to which he is restored by the recapture. For the service thus rendered to him, the recaptor is entitled to a remuneration in the nature of salvage. "If the property be retaken from a captor clothed with a lawful commission, but not an enemy, there would still be as little doubt that it must be restored to the original owner. For the act of taking being in itself a wrongful act, could not change the property, which must still remain in him. "If, however, the neutral vessel thus recaptured were laden with contraband goods destined to an enemy of the first captor, it may perhaps be doubted whether they should be restored, inasmuch as they were liable to be confiscated as prize of war to the first captor. Martens states the case of a Dutch ship captured by the British under the rule of the war of 1756, and recaptured by the French, which was adjudged to be restored by the Council of Prizes, upon the ground that the Dutch vessel could not have been justly condemned in the British prize courts. But if the case had been that of a trade considered *Vattel, p. 385, n. contraband by the law of nations and treaties, the original owner would not have been entitled to restitution. "In general, no salvage is due for the recapture of neutral vessels and goods, upon the principle that the liberation of a bona fidei neutral from the hands of the enemy of the captor is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized."* upon municipal "The laws of different nations vary in the amount of reward Amount of salvage dependent which they assign to the rescuer of vessels. In regard to the law. salvage to be paid to our recaptors or rescuers by the owners of foreign vessels and goods, the law of the United States adopts the principle of reciprocity, measuring the amount by that which is paid by the State to which the vessel belongs. In regard to the amount to be paid by citizens or resident foreigners, the law contains various provisions, of from one-half to onetwelfth of the value; more being granted for the salvage of an armed vessel recaptured than an unarmed, and more to a private vessel recapturing than to a public armed vessel. In no case is salvage allowed if the recapture occurs after condemnation by a competent authority, since the property is regarded as having passed over from the original owner to the captor. "The legislation of a particular State may withhold salvage from its citizens or subjects, but cannot deprive a neutral or an ally of the exercise of this right."† The law of the United States as to salvage is as follows: "If the captured property belonged to the United States, it shall be restored to the United States, and there shall be paid from the Treasury of the United States the salvage, costs, and expenses ordered by the court. If the recaptured property belonged to persons residing within or under the protection of the United States, the court shall adjudge the property to be restored to its owners, upon their claim, on the payment of such sum as the court may award as salvage, costs, and expenses. If the recaptured property belonged to any person permanently resident within the territory and under the protection of any foreign prince, government, or State in amity with the United States, and by the law or usage of such prince, government, or State, the property of a citizen of the United States would be restored *Lawrence's Wheaton, pp. 634-49-50. + Woolsey, Sec. 144. Law of the relating to United States salvage. English rule. Sec. 18. Treaty agreements. Sec. 19. Rescue under like circumstances of recapture, it shall be adjudged to be restored to such owner, upon his claim, upon such terms as by the law or usage of such prince, government, or State would be required of a citizen of the United States under like circumstances of recapture; or, when no such law or usage shall be known, it shall be adjudged to be restored upon the payment of such salvage, costs and expenses as the court shall order. The whole amount awarded as salvage shall be decreed to the captors, and no part to the United States, and shall be distributed as in the case of proceeds of property condemned as prize.' The rule observed by the English courts is stated by Chitty to be the same in principle as the law of the United States.† The United States have treaty agreements with several powers that ships and other property taken by pirates, and found within the jurisdiction of either party, shall be restored to the original owners. It is stipulated generally that the claim for restitution shall be made within one year. The treaties with Spain, Muscat, and Sweden and Norway do not limit the time of making claims for restitution. These treaties are with Bolivia, 1858; Brazil, 1828; United States of Colombia, 1846; Ecuador, 1839; Italy, 1871; Guatemala, 1849; Mexico, 1848; Muscat, 1833; San Salvador, 1850; Spain, 1795; and Sweden and Norway, 1827. The latter treaty also stipulates that when the vessels of either party, being neutral, are captured by an enemy and recaptured by the vessels of war or privateers of the other, being a belligerent, they shall be restored to the original owners on proper proof. The same treaty, and that with Prussia of 1799, revived in part by the treaty of 1828, contain special agreements as to salvage where the parties may be engaged in a joint war.§ "Rescue and recapture are distinguishable from each other. and recapture. The term recapture is ordinarily employed when a prize, having been captured by an enemy, is recovered from his possession by the arrival of a friendly force. The term rescue more usually denotes that recovery which is effected by the rising of the captured party himself against his captor. There is, however, another kind of rescue, which partakes of the nature † Vattel, p. 385, n. * Rev. Stat. U. S., Sec. 4652. U. S. Treaties, 1873, "Bolivia," &c. of recapture: it occurs where the weaker party, before he is overpowered, obtains relief from the arrival of fresh succors, and is thus preserved from the force of the enemy."* "It is no objection to an allowance of salvage, or a recapture, that it was made by a non-commissioned vessel; it is the duty of every citizen to assist his fellow-citizens 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. And if a convoying ship recaptures 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. 66 To entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture; for military salvage will not be allowed in any case where the property has not been actually rescued from the enemy. 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. 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. 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. 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 the 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. 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 *Lawrence's Wheaton, p. 668, n. 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. 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. Where 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. 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. 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. 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 prize courts of the captor's country to divest his original right in case of a subsequent recapture.' "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. 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 other persons, upon the ground of superior authority, to dispossess them without cause. "In all cases of salvage where the rate is not ascertained by *Lawrence's Wheaton, pp. 664-5. |