in their power, that it is quite important to hold them strictly to their duty of protecting and preserving the property, for the benefit of their owners, with all reasonable diligence and care, and with entire honesty. And this responsibility of the salvors continues as long as the property is subject to the decree of the court. So that an embezzlement or theft, after it is in custody of the officers of the court still works a forfeiture.2 But salvage is not forfeited by misconduct of the crew before the salvage, or, probably, after, if nothing wrong can be imputed to them in connection with the salvage service, or the property.3 If property which has been embezzled after having been saved, comes again into the possession of the owner of it, salvage on it is due to those of the original salvors who had nothing to do with the embezzlement. But any neglect or want of due skill or care on their part, would forfeit or diminish their salvage.5 Whether they might not be answerable farther for mischief caused by their interference with the property, has not been decided. We should say, however, that they would be liable as other wrongdoers; that is, on the same ground and to the same extent. The duties of parties when a pilot is on board in charge of a vessel we have already considered, and only remark here that a salvor cannot be maintained. The Rising Sun, Ware, 378; The Bark Missouri, U. S. D. C., Mass., 18 Law Reporter, 38. The question was discussed at length in this case, whether a conspiracy, fraud and actual embezzlement on the part of the master would defeat the claim of the owners of the vessel, the property having been saved. The court were of the opinion that only the guilty parties should suffer. The Duke of Manchester, 2 W. Rob. 470, to the contrary, may be explained on two grounds, either that the innocence of the owners was not proved, or that no beneficial service was rendered. 1 In The John Perkins, U. S. D. C., Mass., 19 Law Reporter, 490, 496, the share of a salvor was diminished because he was not sufficiently watchful in preventing third persons from plundering the vessel. 2 Schooner Boston, 1 Sumner, 328. 3 The Centurion, Ware, 477, 484. 4 The Bark Missouri, U. S. D. C., Mass., 18 Law Reporter, 38. 5 The Rosalie, 1 Spinks, Adm. 188, 25 Eng. L. & Eq. 605; The Lockwoods, 9 Jurist, 1017; The Bark Dygden, 1 Notes of Cases, 115; The Neptune, 1 W. Rob. 297; The Duke of Manchester, 2 W. Rob. 470; The Barefoot, 1 Eng. L. & Eq. 661; The Glory, 2 Eng. L. & Eq. 551; The Dosseitei, 10 Jurist, 865; The Cape Packet, 3 W. Rob. 122. In this last case it is said that the extent of the diminution is not measured by the amount of loss or injury sustained, but is framed upon the principle of proportioning the diminution to the degree of negligence, not to the consequences." See ante, Vol. I. p. 483, n. 1. cannot excuse negligence on his part by proof that there was a pilot on board. The utmost honesty and good faith on the part of the salvors is required. All attempts at extortion, either by direct acts 2 or by an exaggerated account of the service performed, are received by the court with great disfavor, and work a forfeiture or diminution of salvage.3 Forfeited shares in salvage enure generally to the benefit of the owners of the property saved, and not to the co-salvors.4 It has been held at common law, that where one of the crew who had been guilty of embezzlement, sued the owner of his ship for his share of the salvage, this owner could not make the defence of embezzlement, because the owner of the property had paid to him the share of the seaman, without deducting what was forfeited by embezzlement.5 The master has no right to give away any of the cargo or stores of his vessel; and an acceptance of them by the salvors, or their connivance with his waste or misuse of such cargo or stores, would forfeit or diminish their salvage. A salvage claim may also be lost by a sufficient lapse of time." In cases of salvage, the salvors themselves are admitted as witnesses in their own behalf, from necessity, as they are often the only persons who have any knowledge of the circumstances.8 But this necessity, from which their competency arises, limits that competency, and they are not admissible as witnesses for themselves, or for each other, to entirely independent facts which can be proved by other testimony.9 From the fact that they are thus admitted, and the reason for their admission, we should draw another inference; namely, that material perjury on their part should operate as an embezzlement of the truth, and of the trust which is in their hands, and 1 The Duke of Manchester, 2 W. Rob. 470. 2 Houseman v. Schooner North Carolina, 15 Pet. 40; The Giacomo, 3 Hagg. Adm. The Susannah, cited 3 Hagg. Adm. 345, note. 344; 8 The Elizabeth & Jane, Ware, 35, 37; The Towan, 2 W. Rob. 259. The Rising Sun, Ware, 378; Schooner Boston, 1 Sumner, 328. 5 Blake v. Patten, 15 Maine, 173. Ship Octavia, cited in Marvin on Salvage, 113. 7 The Rapid, 3 Hagg. Adm. 419; The Samuel, 4 Eng. L. & Eq. 581. 8 The Elizabeth & Jane, Ware, 35. 9 The Boston, 1 Sumner, 328; The Henry Ewbank, id. 400. should work a forfeiture of their claim. This has been earnestly contended for, but the question has not yet received, so far as we know, distinct adjudication. SECTION IX. OF MILITARY SALVAGE. This is demandable as of right for vessels or cargoes, saved from pirates or a public enemy. And in cases of recapture, it follows as an incident of prize, and will be awarded by the court of restitution, whether prayed for in the libel or not. And it is lawful to take a ship at sea which is in a condition liable to capture, and bring or send her in for examination and adjudication by the courts.3 The amount of salvage on recapture is fixed by statute for most cases; and when not so determined must be governed by 1 Talbot v. Seeman, 1 Cranch, 1. 4 Act of 1800, ch. 14, 2 U. S. Stats. at Large, 16. The first section of this act applies to the case of recapture by any vessel acting under the authority of the United States, before condemnation, of a vessel other than a vessel of war or a privateer, or any goods which have before belonged to any person resident within or under the protection of the United States, and which has been taken by an enemy of the United States, or by the authority of a government against which the United States have authorized defence or reprisals. If the recapture is made by a public vessel of the United States, one eighth is allowed, if by a private vessel, one sixth. And if the vessel retaken has been sent forth armed either before or after the capture, and before the retaking, one half is allowed. The second section relates to vessels or goods recaptured under similar circumstances, which formerly belonged to the United States. For the recapture of an unarmed vessel or any goods therein, one sixth of the value when made by a private vessel of the United States, and one twelfth when made by a public armed vessel, and for the recapture of a public armed vessel when made by a private vessel, one moiety, and when made by a public armed vessel, one fourth. The third section provides for the recapture of property formerly belonging to an alien friend, from an enemy of the United States. The amount of salvage in this case, is that which is given by the alien friend on the restoration of property of a citizen of the United States under like circumstances, and where no such law or usage is known, then the same salvage is allowed as in the first section of this act. No restoration is to be made in such a case, if the vessel had been condemned before the recapture, or the general principles of law. And it has been said in England, that military salvage being fixed by law at a low rate, may be increased by the court, when special services are rendered.2 Lord Stowell has held that the master and crew are, strictly speaking, the only salvors; the owners having generally, but a slight claim, grounded only on the danger incurred by their property.3 But every one concerned in the rescue of a captured ship has a lien on the property for his salvage, and his action in personam as well as in rem. In England it is no part of the duty of the crew, as seamen, to rescue their own ship in case of capture;5 but rescue is a voluntary and meritorious act, to be rewarded as where no restoration would be made by the alien friend under like circumstances, or where a different provision is made by treaty. The fourth section provides for the manner of distributing the salvage among the officers and crew of the recapturing vessel. It has been held under the first section, that only one sixth of the cargo is to be given in case of its recapture by a private armed vessel, although the vessel recaptured was originally an armed vessel. The Sch. Adeline, 9 Cranch, 244. See also the same case for the construction of the third section. 1 Talbot v. Seeman, 1 Cranch, 1. This was a case of a recapture by an American vessel of a Hamburg vessel from a French vessel. France and the United States were at war, and Hamburg was neutral to both. The court held that the case did not fall within the third section of the act of 1800, construing that section to apply only to the case of a friend hostile to the capturing power. One sixth was allowed as salvage. 2 The Sir Francis Burton, 2 Hagg. Adm. 156. 3 The San Bernardo, 1 Rob. Adm. 178. The Two Friends, 1 Rob. Adm. 271. 5 In England, the law is, that the obligation of the crew is at an end on a capture taking place. The Two Friends, 1 Rob. Adm. 271; The Beaver, 3 Rob. Adm. 292. They may therefore be entitled to salvage on recapture, as well as where the service is performed by third persons. But in this country it is certain that it is the duty of the crew to remain by the vessel after capture until condemnation. It would therefore seem that they did no more than their duty in recapturing the vessel. In Phillips v. M'Call, 4 Wash. C. C. 141, the vessel had been captured and a prize crew put on board; but on another vessel approaching, the captors, fearing recapture, left the vessel in the possession of part of her original crew, they giving a ransom bill, promising to pay half the value. It was held that the crew were not entitled to salvage, their contract not being dissolved by the capture. But in Clayton v. Ship Harmony, 1 Pet. Adm. 70, salvage was allowed on a recapture by the crew, their contract being considered to be at an end. In Williams v. Suffolk Ins. Co., 3 Sumner, 270, the question was whether a decree of the admiralty court in Connecticut, giving salvage to the crew of a vessel who had recaptured her when she was illegally detained by a foreign power, was binding upon the insurers. Mr. Justice Story held that the decree was conclusive, and added: "If that decree were reëxaminable, there is no question that it was rightfully a case for salvage; for the recapture saved the vessel and outfits from an imminent peril of condemnation." such. If one does only his duty, he cannot on this ground claim military, any more than civil salvage; and this is sometimes said where the service rendered is not so strictly within his duty, but that he might have refused to perform it. 3 4 Nor is it necessary that the salvor should incur personal risk; thus where the enemy sells or gives a captured ship to a stranger who brings her back to her owner, his right to salvage is unquestionable. As to freight, it has been held, that this must contribute to salvage, when a commencement of the voyage has taken place, then a capture, and a recapture, by which the voyage was afterwards accomplished. In that case the whole freight is included in the valuation on which salvage is given.5 But it is not always sufficient to make the freight contributory that its earning was made possible by the recapture; as if a ship be cut out of port and then recaptured and she afterwards sails on and completes her voyage; no salvage would be due from the freight. When there is a recapture by a public ship of war, and the parties do not consent to appraisement, the value of the recaptured property must be ascertained by a sale of it. Recapture to give the right to salvage must be legal, for if founded on a tort no compensation is due.8 Whether salvage is to be decreed or not in cases of recapture, is often a question of much difficulty, and one of mingled law and fact. So far as the principal cases may aid in answering this question, we have arranged them as follows: — Military salvage has been decreed, and the vessel restored to the original owner, because the condemnation and sale under which 1 See note, supra. 2 See Phillips v. M'Call, 4 Wash. C. C. 141, where it was held that a passenger, and another person who was the ship's physician, were bound to aid in rescuing the vessel after capture. 3 The Henry, Edw. Adm. 192. In The London, 2 Dods. 74, the captors offered to release the vessel to the master on condition of his drawing a bill for £1,000, payable in London. He did this, but took care to send advices to London in time to prevent the payment. Held, that he was entitled to salvage. The Sir Peter, 2 Dods. 73. 5 The Dorothy Foster, 6 Rob. Adm. 88. 6 The Dorothy Foster, 6 Rob. Alm. 88, 91, per Sir William Scott. |