The case of a vessel and cargo belonging to a citizen of one
belligerent nation captured on the high seas by a cruiser of the
other belligerent, given to a neutral and by him brought into a
port and libeled in a court of his own country, between which and
the nation to which the vessel originally belonged war breaks out
before final adjudication, is to be considered as a case of
salvage, one moiety adjudged to the libellants and the other moiety
to remain subject to the future order of the court from which the
appeal was brought up and to be restored to the original owner
after the termination of the war unless legislative provision
should previously be made for the confiscation of enemy's property
found in the country at the declaration of war.
The act of bringing in the cargo, though consisting of articles
the importation of which was prohibited by law, was not considered,
under the. peculiar circumstances of this case, as subjecting the
property to forfeiture.
There is no precise rule as to the amount of salvage, nor is it
in its nature reducible to rule. For it must in every case depend
upon peculiar circumstances, such as peril incurred, labor
sustained, value decreed, &c., all of which must be weighed and
estimated by the court that awards the salvage. As far as the
inquiries of this Court have extended, where a proportion of the
thing saved has been awarded, a half has been the maximum and an
eighth the minimum; below that it is usual to adjudge a
compensation
in numero. In some cases, indeed, more than a
half has been awarded, but they will be found to be cases of very
extraordinary merit or on articles of very small amount.
The facts of the case, as stated by JOHNSON, J. in delivering
the opinion of the Court, were as follow:
The libellants were the master and crew of the American brig
Three Friends. On 14 November, 1811, whilst on their
voyage from Salem to the Brazils
Page 12 U. S. 222
with a valuable cargo on board, they were captured by the
Nymphe and
Medusa, French frigates, and by them
the brig was plundered and burnt. On the 21st, the frigates
captured the
Adventure, a British ship laden with British
goods, and after taking out a part of the cargo, made a present of
the residue to the libellants. The fact of the gift is established
by a writing under the hand of the captain of the
Medusa,
commander of the squadron, in which he says,
"Je donne au
capitaine", &c., in the language of an unqualified
donation. On 23 November, they left the squadron and arrived at
Norfolk on 1 February, 1812, after a long and boisterous voyage in
a large ship navigated by a very inadequate crew. On her arrival in
the United States, she was libeled by the captain and crew as their
property acquired under the donation of the French captor, and the
United States interposed a claim for the forfeiture incurred under
the nonimportation act. At the time of her arrival, peace existed
between this country and Great Britain, but on 18 June following,
and pending this suit, war was declared.
Page 12 U. S. 226
JOHNSON, J., after stating the facts of the case as before
mentioned, delivered the opinion of the Court as follows:
The very peculiar circumstances of this case require the
application of a variety of principles, and the Court has not been
aided in its inquiries by that elaborate discussion which such
novel cases generally elicit. But it is relieved by the reflection
that the principles to which it must resort in forming its judgment
are well established and lead satisfactorily to a conclusion.
The most natural mode of acquiring a definite idea of the rights
of the libellants in the subject matter will be to follow it
through the successive changes of circumstances by which the nature
and extent of the rights of the parties were affected -- the
capture, the donation, the arrival in the United States, and the
state of war.
As between the belligerents, the capture undoubtedly produces a
complete divesture of property. Nothing remains to the original
proprietor but a mere
scintilla juris, the
spes
recuperandi. The modern and enlightened practice of nations
has subjected all such captures to the scrutiny of judicial
tribunals as the only practical means of furnishing documentary
evidence to accompany ships that have been captured, for the
purpose of proving that the seizure was the act of sovereign
authority, and not mere individual outrage. In the case of a
purchase made by a neutral, Great Britain demands the production of
such documentary evidence, issuing from a court of competent
authority, or will dispossess the purchaser of a ship originally
British.
The Fladoyen, 1, Rob. 114, 135. Upon the
donation, therefore, whatever right might in the abstract have
existed in the captor, the donee could acquire no more than what
was consistent with his neutral character to take. He could be in
no better situation than a prize master navigating the prize in
pursuance of orders from his commander. The vessel remained liable
to British capture on the whole voyage. And on her arrival in a
neutral territory, the donee sank into a mere bailee for the
British claimant, with those rights over the
Page 12 U. S. 227
thing in possession which the civil law gave for care and labor
bestowed upon it.
The question then occurs is this a case of salvage?
On the negative of the proposition, it is contended that it is a
case of forfeiture, and therefore not a case of salvage as against
the United States -- that it was an unnatural act to assist the
enemy in bringing the vessel
infra presidia, or into any
situation where the rights of recapture would cease, and therefore
not a case of salvage as against the British claimant.
But the Court entertains an opinion unfavorable to both these
objections.
This could never have been a case within the view of the
legislature when passing the nonimportation act. The ship was the
plank on which the shipwrecked mariner reached the shore, and
although it may be urged that bringing in the cargo was not
necessarily connected with their own return to their country, yet,
upon reflection it will be found that this also can be excused upon
very fair principles. It was their duty to adhere strictly to their
neutral character, but to have cast into the sea the cargo, the
property of a belligerent, would have been to do him an injury by
taking away that chance of recovery subject to which they took it
into their possession. Besides, bringing it into the United States
did not necessarily presuppose a violation of the nonimportation
laws. If it came within the description of property cast casually
on our shores, as we are of opinion it did, legal provision exists
for disposing of it in such a manner as would comport with the
policy of our laws. At last they could but deliver it up to the
hands of the government, to be reshipped by the British claimant or
otherwise appropriated under the sanction of judicial process. And
such was the course that they pursued. Far from attempting any
violation of the laws of the country, upon their arrival here, they
deliver it up to the custody of the laws, and leave it to be
disposed of under judicial sanction. The case has no one feature of
an illegal importation, and cannot possibly have imputed to it the
violation of law.
Page 12 U. S. 228
As to the question arising on the interest of the British
claimant, it would at this time be a sufficient answer that they
who have no rights in this Court cannot urge a violation of their
rights against the claim of the libellants. But there is still a
much more satisfactory answer: to have attempted to carry the
vessel
"infra presidia" of the enemy would, unless it
could have been excused on the ground of necessity, have been an
unneutral act. But when every exertion is made to bring it to a
place of safety, in which the original right of the captured would
revive and might be asserted, instead of aiding his enemy, it is
doing an act exclusively resulting to the benefit of the English
claimant.
It being determined to be a case of salvage, the next question
is as to the amount to be allowed. On this subject there is no
precise rule; nor is it, in its nature, reducible to rule. For it
must in every case depend upon peculiar circumstances, such as
peril incurred, labor sustained, value decreed, &c., all of
which must be estimated and weighed by the court that awards the
salvage. As far as our inquiries extend, when a proportion of the
thing saved has been awarded, a half has been the maximum, and an
eighth the minimum; below that, it is usual to adjudge a
compensation
in numero. In some cases, indeed, more than a
half may have been awarded, but they will be found to be cases of
very extraordinary merit or on articles of very small amount. In
the present case, the account sales of the cargo was near $16,000,
and we are of opinion that the one-half of that sum will be an
adequate compensation.
The next question arises on the application of the residue. On
this point, the Court is led to a conclusion by the following
considerations.
At the arrival of the vessel in the United States, the original
British owner would unquestionably have been entitled to the
balance. The state of war, however, at present, prevents his
interposing a claim in the courts of this country. But as this
property was found within the United States at the declaration of
war, it must stand on the same footing with other British property
similarly situated. Although property of that description is liable
to be disposed of by the legislative
Page 12 U. S. 229
power of the country, yet until some act is passed upon the
subject, it is still under the protection of the law, and may be
claimed after the termination of war if not previously confiscated.
We will therefore make such order respecting it as will preserve
it, subject to the will of the court, to be disposed of as future
circumstances shall render proper.
As to the mode of distributing the amount of the salvage, the
Court has concluded to adopt an arbitrary distribution, because
there exists no positive rule on that subject. It would have
adopted the rules of the prize act relative to cases of salvage had
the circumstances of the case admitted of its application.
This Court orders and decrees that the decree of the Circuit
Court of Virginia in this case be reversed; that the costs and
charges be paid out of the proceeds of the sale; that the one-half
of the balance be adjudged to the libellants, to be divided into
thirteen and a half parts, three of which shall be paid to the
captain, two to the supercargo, two to the chief mate, one and a
half to the second mate, and one to each of the seamen. And that
the balance be deposited in the Bank of Virginia, to remain subject
to the future order of the circuit court.
