Whether or not military salvage is paid depends upon (1) the
character of the original captor, whether recognized belligerent
or pirate, (2) the character of the original owner of the vessel
whether neutral, subject, or ally, (3) the character of the title the
original captor has in the vessel.
In regard to the first point it may be said that recaptures from
pirates or unrecognized belligerents should always be returned to the
original owner on the payment of salvage. Pirates can never acquire
any title in a capture, so the title of the original owner remains
good. We need therefore consider only recapture from recognized
belligerents.
In the case of recapture of neutral vessels the original captor had
no title and could get none. A prize court of his own country would
have decreed restitution of the vessel to the original owner so the
recaptor has conferred no benefit by recapturing the vessel. He
therefore is entitled to no salvage. In cases, however where no legal
prize court exists in the country of the original captor the recaptor
does the original owner benefit so should be rewarded by salvage.
This situation was held to have existed in France in 1799 and in a
case[1] which came up at that time Sir William Scott speaking for the
British prize court said:
"I know perfectly well that it is not the modern practice of the law
of nations to grant salvage on recapture of neutral vessels; and
upon this plain principle that the liberation of a clear neutral
from the hand of the enemy is no essential service rendered to him,
inasmuch as that same enemy would be compelled by the tribunals
of his own country, after he had carried the neutral into port to
release him with costs and damages for the injurious seizure and
detention." However in the case before the court the French courts
were held to be incompetent so salvage was awarded the captor.
In recapture of vessels originally belonging to subjects, most
countries make distinctions in reference to the character of the
original captors title. However Great Britain has provided by statute
that recaptures shall always revert to the original owner when a
subject on payment of salvage with the one exception that in case the
vessel has been fitted out by the enemy as a ship of war it shall not
be returned but shall be declared good prize.[2]
The final case remains of recaptures of vessels of an ally. Here
the question of the original captor's title enters in, for if the
original captor had good title, the vessel is enemy property and
should be condemned as good prize to the benefit of the recaptor;
but if the title of the original captor is incomplete the original
owner still has a certain title which must be respected. The question
therefore arises, when is the original captor's title complete? There
have been many rules on the subject. Thus Sir William Scott has said:
"It can not be forgotten that by the ancient law of Europe the
perductio infra praesidia, infra locum tutum was a sufficient
conversion of the property, that by a later law a possession of
twenty-four hours was sufficient to divest the former owner. This is
laid down in the 287th article of the Consolato Del Mare in terms
not very intelligible in themselves but which are satisfactorily
explained by Grotius and by his commentator Barbeyrac in his notes
upon that article."[3] Sir Leoline Jenkins, in 1672 said:
"In England we have not the letter of any law for our direction only
I could never find that the court of admiralty either before the
late troubles or since has in these cases adjudged the ships of one
subject good prize to another." He then refers to the Commonwealth
laws of 1649 and says, "Whether the usurpers intended this as a new
law or an affirmance of the ancient custom of England I will not take
upon me to determine, only I will say, condemnation upon the enemies
possession for twenty-four hours is a modern usage."[4] Later legal
adjudication and condemnation was clearly required before the title
of the captor state was complete. Thus Lord Mansfield said:
"I have talked with Sir George Lee who has examined the books of the
court of admiralty and he informs me that they hold the property not
changed, so as to bar the owner in favor of a vendee or recaptor till
there had been a sentence of condemnation, and that in the reign
of Charles II, Sir Richard Floyd gave a solemn judgment upon the
property and decided restitution of a ship retaken by a privateer
after she had been fourteen weeks in the enemies possession because
she had not been condemned."[5] And again "That no property vest
in any goods taken at sea or on land by a ship or her crew, till a
sentence of condemnation as good and lawful prize."[6] These cases
referred to vessels owned by subjects rather than allies as they
occurred before the law granting especial restitution to citizens had
been passed but they serve to make it clear that English law regards
the title of the enemy captor complete and the title of the original
owner destroyed after legal condemnation in the enemy prize court
and not before. Vessels originally belonging to allies after such
condemnation will be considered good prize and the ally has no claim.
There is no question of salvage, instead the captor receives his
share of prize money. Recaptures before the enemy title is complete
revert to the ally on payment of salvage but if instances can be
given of British property retaken by them and condemned as prize, the
court of admiralty will determine the case according to their own
rule.[7]
Thus the recaptor may receive no reward at all, may be entitled to
salvage or may be entitled to prize money.
The first case occurs when a neutral vessel is recaptured from a
recognized belligerent.
The second occurs when the recapture is made from a pirate, when the
original owner is a British subject, or when the original owner is
an ally and the vessel has not been condemned by the enemy's prize
court.
The third case occurs when the vessel originally belonged to an ally
but has been legally condemned by the enemy prize court and in any
case of an ally's vessel where that country refuses to return British
vessels.
To be entitled to salvage the recaptor must make an actual military
recapture. Constructive recaptures such as occupation of a vessel
abandoned by the enemy do not entitle to military salvage.[8]
As already stated where salvage is allowed it consists of one-eighth
of the value of the vessel and cargo recaptured or in cases of
exceptional difficulty one-fourth to be governed by the discretion of
the court.[9] Salvage is apportioned among the officers and crew in
the same manner as prize money.
_NOTES._
Chapter V, Part 4.
[1] The War Onsken, 2 C. Rob. 299, quoted in Atherley-Jones, op. cit.
p. 601.
[2] 27 and 28 Vict., c 25, s 40, L'Actif, Edw. Adm. Rep. 184, quoted
in Atherley-Jones, op. cit. p. 608.
[3] The Ceylon, 1 Dod. Adm. Rep. 105, quoted in Atherley-Jones, op.
cit. p. 607.
[4] Sir Leoline Jenkins, Life of, by Wynne, ii, 770; quoted in
Atherley-Jones, op. cit. p. 619.
[5] Lucas 79, quoted in Atherley-Jones, op. cit. p. 619.
[6] Lindo vs. Rodney, 2 Doug. 612; 99 Eng. Rep. 385; see also
Atherley-Jones, op. cit. p. 619.
[7] The Santa Cruz, 1 C. Rob. 497, quoted in Atherley-Jones, op. cit.
p. 622.
[8] Phillimore, op. cit. iii, 638.
[9] 27 and 28 Vict., c 25, s 40, 1864.