By the general maritime law, a sentence of condemnation completely extinguishes the title of the original proprietor. 1818. By the British statute of the 13th George II. ch. 4. the jus postliminii The Star. is reserved to British subjects upon all recaptures of their vessels and goods by British ships, even though they have been previously condemned, except where such vessels, after capture, have been set forth as ships of war. The statute of the 43d George III. ch. 160. s. 39. has no farther alter ed the previous British laws, than to fix the salvage at uniform stipulated rates, instead of leaving it to depend upon the length of time the recaptured ship was in the hands of the enemy. Neither of these statutes extend to neutral property. The 5th section of the prize act of the 26th June, 1812, ch. 107. does not repeal any of the provisions of the salvage act of the 3d of March, 1800, ch. 14. but is merely affirmative of the pre-existing law. By the law of this country the rule of reciprocity prevails upon the recapture of the property of friends. The law of France denying restitution upon salvage after 24 hours possession by the enemy, the property of persons domiciled in France is condemned as prize by our courts on recapture, after being in posession of the enemy that length of time. APPEAL from the circuit court for the district of New-York. It appeared by the libel, claim, evidence, and admissions of the parties in this cause, that the ship Star was captured by the American privateer Surprise, on the high seas, on the 27th of January, 1815. That the ship Star was then on a voyage from the British East Indies to London. That she was under the British flag, had British papers as a trading vessel, and a license from the British East India Company, and that her ostensible owners were British subjects, residing in London. It further appeared, that previously to the late war, and till, and at the time of the capture and condemnation in the British 1818. The Star. Feb. 11th. court of admiralty hereinafter mentioned, the said ship was a duly registered American ship, and was owned by Isaac Clason, deceased, an American citizen, residing in New-York, or by the claimants, his executors, who were also American citizens, residing in New-York. That soon after the commencement of the late war, the said ship sailed from the United States on a foreign voyage, and immediately after leaving a port of the United States on the said voyage, was captured by a British vessel of war, and carried into Halifax, Nova Scotia, where she was regularly libelled and condemned as prize in the court of vice-admiralty of that province; after which she was purchased by the British subjects who claimed to own her at the time she was re-captured by the Surprise. This last-mentioned capture having been made, the ship Star was brought into the port of New-York, and libelled in the district court of New-York as prize to the said privateer; upon which libel the appellants put in a claim, claiming the said ship as the property of their testator, and claiming to have the said ship restored to them upon the payment of salvage; which claim was rejected, and the ship was condemned. The cause was then carried to the circuit court, where the decree of the district court was affirmed. It was then brought, by appeal, to this court. Mr. Key, for the appellants and claimants. The question in this cause arises under the prize act of the 26th of June, 1812, sec. 5. which, it is contended, repeals the salvage act of 1800, as to this matter. The latter act provides, that condemnation in the enemy's prize courts shall be a bar to restitution on salvage to the original owner. The 5th section of the prize act of 1812, declares, "that all vessels, goods, and effects, the property of any citizen of the United States, or of persons resident within, and under the jurisdiction of the United States, or of persons permanently resident within, and under the protection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners, upon payment by them respectively, of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law." This section directs all vessels, goods, and effects, of citizens and neutrals, recaptured from the enemy, to be restored on payment of salvage, without reference to the fact, whether they had been previously condemned or not; and so far it modifies and repeals the salvage act of 1800. The original owner is, therefore, entitled to restitution, notwithstanding the British condemnation. Upon any other interpretation, the entire section would become wholly inoperative, as every case is included in the previous act of 1800. When that act passed, our law conformed to the English rule, which then prevailed. England subsequently altered her law, and our act 1818. The Star of 1812 copied the British statute of the 43d George III. That act must have been intended to make some change in the existing legislation on the subject; and it is probable that congress meant to make a distinction between recaptures by public ships and by private ships, unfavourable to the latter. The "provisions heretofore established," do not refer to all the provisions of the act of 1800; these words merely refer to the rate of salvage fixed by that act, and not to the principle of restitution. The latter is changed; the former remains unaltered. Our Mr. Winder, and Mr. Harper, contra. The act of 1800 was not a prize act for privateers. The provision in the act of 1812 is merely incidental, and refers to the pre-existing law. Our policy of 1812 was not like that of England, which contemplates the extreme probability of the recapture of British vessels, even after condemnation by the enemy. object was to hold out the most liberal encouragement to cruizing. The British salvage acts merely refer to the recapture of British property; our act extends to neutral, as well as American property. The British statutes are merely an exception to the general rule, municipal and local. Our law is founded on the law of nations. The construction contended for might extend to enforce a demand of restitution after the lapse of an indefinite length of time, and after the intervention of repeated treaties of peace. a Park on Insurance, 94. 6th London ed. 2 Marshall on Ins. 501. Horne's Compendium, 34. The act of 1800 is merely in affirmance of the law of nations, which universally devests the title of the original owner after condemnation. The very term recapture, implies former ownership still subsisting; but it does not subsist here. How could the former owner be considered the "lawful owner" after condemnation? "The nature of each case" is to be determined by reference to the act of 1800, and imports something more than the mere rate of salvage. The contrary construction would make a distinction between public ships and privateers, unfavourable to the latter, contrary to the uniform policy of the coun try; and would create a confusion as to the recapture of the property of friends, which it cannot be supposed the legislature intended to introduce. The equitable rule of reciprocity would be prostrated; and neutral property must, in all cases, be restored, (after or before twenty-four hours possession by the enemy,) although the friendly power would not in the same case restore. Such a departure from the public law of the world is not to be lightly presumed; and statutes made in pari materia are to be construed together, and nothing is to be repealed by mere implication that may stand consistently with former enact ments. Mr. Jones, in reply. The claimants found their claim to restitution on payment of salvage, upon the 5th section of the act of the 26th of June, 1812. The captors resist the claim because the vessel was condemned before the recapture-and contend that the act of the 3d of March, 1800, is the law which is to determine the rights of the parties. This seems, 1818. The Star. |