8. RECAPTURE-SALVAGE.

§ 1213.

A neutral vessel and cargo, having been unlawfully captured by a belligerent, were captured by another belligerent more than twentyfour hours after the first capture. The second captors claimed that the property had then passed to the first captors, both under the law of nations and the ordinance of Congress, and was therefore to be considered as good prize. Held, that the first capture being illegal, the twenty-four hours' occupation did not operate to transfer the property, and that the vessel and cargo were not good prize.

Case of The Resolution, Federal Court of Appeals, 1781, 2 Dallas, 1.

With reference to the ordinance of Congress, providing that after a capture and occupation of twenty-four hours the property captured should be prize, the court said: "The ordinance of Congress is in truth a new regulation of the jus post liminii, and limits it to a recapture within twenty-four hours, and therefore can only relate to the subjects of the United States. It adopts the ordinance of France, and that ordinance relates only to the subjects of France. In both cases, with regard to the owner, a subject, the property captured is not passed away before the expiration of twenty-four hours. But put the case of a capture and the sale of it before twenty-four hours to a neutral subject; the sale is certainly good and conclusive upon the owner; for the question must be decided by the law of nations, and by the law of nations, the property captured is transferred to the captor as soon as it is taken. Both the ordinances therefore of Congress and of France, in our opinion, relate only to property captured from a subject and recaptured; and not to property captured from a neutral and recaptured."

Case of The Resolution, Federal Court of Appeals, 1781, 2 Dallas, 1, 4.

In September, 1799, the U. S. ship of war Constitution, Captain Talbot, recaptured the Amelia, an armed Hamburg vessel, which was then on its way to San Domingo in charge of a French prize crew, for adjudication. Captain Talbot libeled the vessel at New York as prize, under the act of Congress authorizing the seizure of French armed vessels. The owners put in a claim, insisting that as Hamburg was at peace with France the Amelia was not lawful prize and the property had not changed, and that nothing was due to the recaptors. The district court of the United States decreed one-half of the gross amount of the sale of the vessel and cargo to the recaptors and the other half to the owners. Washington, Justice, in the circuit court, reversed the decree, holding that, as the vessel could not have been

lawfully condemned by the French, nothing was due to the recaptors. From this judgment an appeal was taken to the Supreme Court.

Marshall, C. J., delivering the opinion of the court, said that, in order that salvage might be demanded, two circumstances must concur, (1) the taking must be lawful, and (2) there must be a meritorious service rendered to the captured. As to the first point, the lawfulness of the taking must depend on the state of the relations between the United States and France, since a recapture by a neutral power would be unjustifiable and an act of hostility. The laws of the United States at the time, however, authorized the capture of French armed vessels, and regulated the salvage in case of recapture; and it was a universal principle, which applied to those engaged in partial as well as to those engaged in a general war, that where the vessel met with at sea was in the condition of one liable to capture it was lawful to take her and subject her to the examination and adjudication of the courts. The Amelia was an armed vessel commanded and manned by Frenchmen, and apparently there was no evidence on board from which to ascertain her character. It was therefore unquestionable that there was probable cause to bring her in for adjudication, and that the recapture was lawful.

But it was contended that the recapture was lawful only in consequence of the doubtful character of the Amelia, and that a right to salvage could not accrue from an act which was founded in mistake. But, said Marshall, it was the opinion of the court that, had the character of the Amelia been completely ascertained by Captain Talbot, yet, as she was an armed vessel under French authority, and in a condition to annoy American commerce, it was his duty to capture her and bring her in.

This being so, was there a meritorious service rendered? It was stated, said Marshall, that no service was rendered in recapturing a neutral from a belligerent, because it was in no danger, and consequently that no salvage was due in such a case. But suppose a nation should so change its laws as to subject to condemnation all neutrals captured by its cruisers? The neutral would then be in as much danger as if he had been captured by his own enemy. By the French decree of January 18, 1798, it was made a ground of condemnation for a neutral to have on board merchandise the production of England or her possessions. It appeared that the Amelia, when captured, was on a voyage from Calcutta, in Bengal, laden with the products and manufactures of that country. A French court doubtless would have condemned her, unless it had been plainly shown that the cargo was from a part of Bengal not within the British power. The Amelia, therefore, was in danger, nor was the danger less real because the decree in question was violative of the law of nations.

Under all the circumstances it was held that one-sixth was a sonable allowance" for salvage.

Talbot v. Seeman (1801), 1 Cranch, 1.

The word "captured," as used in the fourth article of the treaty with France of 1800 (expired by limitation), as a technical and descriptive term, does not include the meaning, and ought not to be construed to have the effect, of the term "recaptured" in the sense of the treaty.

Lincoln, At. Gen., 1802, 1 Op. 111.

A vessel, the property of a resident of St. Thomas, then neutral, was, while on her way to the French island of Guadaloupe with a cargo of American produce, captured by a French privateer. She was subsequently recaptured by the commander of a United States frigate, who claimed salvage. The court, referring to the case of the Amelia, said that it was a precedent to be followed in similar circumstances, one of which was that the vessel recaptured should be armed and in a condition to annoy American commerce. In the present case there was on board of the vessel only one musket, a few ounces powder, and a few balls. Her capacity for defense did not warrant her capture as an armed vessel; nor was it proved that she was in such "imminent hazard of being condemned as to entitle the recaptors to salvage." The claim for salvage was dismissed.

Murray v. Schooner Charming Betsy (1804), 2 Cranch, 64, 121.

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A donation on the high seas by a captor to a neutral does not exempt the property from recapture, and the donee who brings it into a port of his own country must be treated as a salvor.

The Adventure, 8 Cranch, 221.

In cases of recapture the rule of reciprocity is applied. If France would restore in a like case, then we are bound to restore; if otherwise, then the whole property must be condemned to the recaptors. It appears that by the law of France in cases of recapture, after the property has been twenty-four hours in possession of the enemy, the whole property is adjudged good prize to the recaptors, whether it belonged to her subjects, to her allies, or to neutrals. We are bound, therefore, in this case to apply the same rule; and as the property in this case was recaptured after it had been in possession of the enemy more than twenty-four hours, it must, so far as it belonged to persons domiciled in France, be condemned to the captors.

Schooner Adeline, 9 Cranch, 244.

"Recaptures are emphatically cases of prize; for the definition of prize goods is, that they are goods taken on the high seas, jure belli,

out of the hands of the enemy. When so taken, the captors have an undoubted right to proceed against them as belligerent property in a court of prize: for in no other way, and in no other court can the questions presented on a capture jure belli be properly or effectually examined. The very circumstance that it is found in the possession of the enemy, affords prima facie evidence that it is his property. It may have previously possessed a neutral or friendly character; but if the property has been changed by a sentence of condemnation, or by such possession as nations recognize as firm and effectual, the neutral or friendly owner is forever ousted of his right."

The Adeline (1815), 9 Cranch, 244, 284.

The American letter of marque, Adeline, from Bordeaux to the United States with a cargo owned partly by citizens of the United States and partly by French subjects, was captured on March 14, 1814, by a British squadron. Six days afterwards she was recaptured by an American privateer, brought into the United States, and libeled, The question arose as to the rate of salvage to be allowed to the recaptors upon the cargo. By the act of Congress of March 3, 1800, it was provided that, upon the recapture of any vessel other than a vessel of war or privateer, or of any goods belonging to persons resident within or under the protection of the United States, such vessel and goods, if recaptured by a private vessel of the United States, should be restored on payment of one-sixth of the value; and if the vessel so recaptured should appear to have been armed as a vessel of war, before such capture or afterwards, she should be restored on payment of one-half of her value. It was argued, in behalf of the recaptors, that, as the Adeline was an armed vessel, they were entitled to a half of the value of the cargo as well as of the vessel. The court held that the statute was clear, and that it gave in any case only one-sixth of the value of cargo, whether a vessel was armed or unarmed.

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The Adeline (1815), 9 Cranch, 244, 287.

Where a British vessel was captured by an American privateer, then recaptured by another British vessel, and then captured again by another American privateer, it was held that prize vested in the last captor; Marshall, C. J., for the court, saying: "An interest acquired by possession, is devested by the loss of possession from the very nature of a title acquired in war. The law of our own country, as to salvage, settles the question, and the case of the Adventure is directly in point and conclusive."

The astrea (1816), 1 Wheat. 125.

The Adventure was a vessel (British) captured by two French frigates, and, after a part of the cargo was taken out, presented to certain citizens of the United States, then neutral, whose vessel the frigates

had before taken and burnt. It was held to be a case of salvage. one-half being allowed to the salvors, and the other half reserved for proper disposition after the close of the war between the United States and Great Britain.

The American privateer Cadet, having captured a British vessel. was standing in for the shore with her when another American privateer, the Paul Jones, flying American colors but having sails of English canvas, began a pursuit. The Cadet, supposing the pursuer to be British, parted company with the prize, and the Paul Jones then pursued the latter, firing at her. When near the shore the prize crew abandoned the vessel and the Paul Jones took possession of her, and, raising British colors, carried her away, though aware that she was a prize of the Cadet. Held, that the vessel should be restored to the first captor, with damages.

The Mary (1817), 2 Wheat. 123.

The general salvage act of March 3, 1800, expressly excepted from its operation recaptured property which had been condemned by competent authority. Section 5 of the prize act of June 26, 1812, provided for the restoration of recaptured property to the "original owners," on payment of salvage "agreeably to the provisions heretofore established by law." Held, that the latter provision did not repeal the former, but was merely affirmative of it, and that, where the captured property had been condemned, the "lawful owners were not the original owners, but those who held title under the condemnation.

The Star (1818), 3 Wheat. 78.

See a long note by Wheaton to this case, on the subject of salvage, 3
Wheat. 93–101.

By the British statute of 13 George II., chapter 4, the jus postliminii was reserved to "British subjects" upon all recaptures of their vessels and goods by British ships, even though they had been previously condemned, except where such vessels had, after capture, set forth as ships of war. This rule was not altered by the statute of 43 George III., chapter 160, section 39, which established uniform rates of salvage. Neither of these statutes extended to neutral property.

The Star (1818), 3 Wheat. 78.

"It is admitted, on all sides, by public jurists, that in cases of capture a firm possession changes the title of the property; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture or on the pernoctation, or on the carrying infra præsidia, of the prize; it is universally allowed, that at all events, a sentence of con