of lading to different persons, as was the case in Caldwell v. Ball, the master should deliver to the person, to whom the consignor first made the indorsement. consignee has assigned the bill of lading, and the validity of the assignment be questionable; it seems most proper for the master to deposit the goods in a place of safety, and apply to the Court of Chancery by way of interpleader, to compel the contending parties to litigate their rights by an action between themselves.

HAVING

1. AVING thus treated of the rights and duties arising out of the contracts between the ship-owner and merchant, it seems proper in the next place to consider a subject, which the dangers of navigation frequently render interesting to both alike; namely, the compensation that is to be made to other persons, by whose assistance a ship or its loading may be saved from impending peril, or recovered after actual loss. This compensation is known by the name of [ 382] salvage, and at present is commonly made by a payment in money, but in the infancy of commerce was more frequently made by the delivery of some portion of the specific articles saved or recovered.

All foreign codes of maritime law, both ancient and modern, contain provisions and enactments on this head. In some of them the value to be paid is fixed at a certain portion of the articles saved, or of their value, according to their nature and quality, or the circumstances of the case. se. But it is obvious that positive and settled rules are little adapted to the administration of justice in varying and unsettled cases; and what can be more various and unsettled, than the degrees of labor experienced on the ocean, or the degrees of peril, to which persons, who engage in the meritorious task of assisting the distressed on that element, are at different times exposed? and therefore in the case of wreck or derelict

as sea, the law of England, like the law of some other countries, has fixed no positive rule or rate of salvage, but directs only as a general principle that a reasonable compensation shall be made (a). (1) The legislators of

of all civilized and commercial states in modern

[383] times (b), have laboured earnestly to repress

by due severity of punishment, the barbarous spirit of plundering the helpless and distressed mariner, whose situation calls for assistance and relief. And very salutary provisions have been made on this subject by the wisdom of our own parliaments (c), but which I shall forbear to detail, as not properly belonging to my subject, and proceed to the consideration of salvage, FIRST, with regard to the effects preserved from the perils of the sea; and, SECONDLY, with regard to effects retaken from an enemy, into whose hands they may have fallen.

2. A person, who by his own labor preserves goods, which the owner, or those intrusted with the care of them, have either abandoned in distress at sea, or are

(a) In the case of derelict becoming the property of the crown, it was formerly the settled practice of the Court of Admiralty to give a moiety to the finders or salvors, but the practice has been long disused, and the reward become discretionary. Case of the AQUILA, 1 Rob. A. R. 37. Wellwood's Sea Laws, tit. 24.

modern times," because formerly the claim of the sovereign power in some countries was not dess barbarous than the temper of the inhabitants. See Valin's preface to tit. 9. of book 4. of the French Ordinance.

(c) See the statutes 3 Ed. 1. c. 4. 4 Ed. 1. stat. 2. sect. 2. 12 Ann, stat. 2. c. 18. and 26 Geo. 2. c. 19.

(b) I have used the words " in 1 Blac. Com. c. 8. s. 11.

(1) Where the

nount of salvage is not fixed by positive law, it must be determined by the principles of general law, and is discretionary under all the circumstances of the case. Talbot v. Seaman, 1 Cranch's Rep. 1.

unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved, until a proper compensation is made to him for his trouble (d). This compensation, if the parties cannot agree upon it, may by the same law be ascertained by a Jury in an action brought by the salvor against the proprietor of the goods: or the proprietor may tender to the salvor such sum of money as he thinks sufficient, and upon refusal to deliver the goods, bring an action (e) against the salvor; and if the Jury think the sum tendered sufficient, he will recover his [384] goods or their value, and the costs of his suit.

If the salvage is performed at sea, the Court of Admiralty has jurisdiction over the subject, and will fix the sum to be paid, and adjust the proportions, and take care of the property pending the suit; or if a sale is necessary, direct a sale to be made, and divide the proceeds between the salvors and the proprietors according to equity and reason. And in fixing the rate of salvage, this Court usually has regard not only to the labor and peril incurred by the salvors, but also to the situation, in which they may happen to stand with respect to the property saved, to the promptitude and alacrity manifested by them, and to the value of the ship and cargo, as well as the degree of danger, from which they were rescued (f). In the case of a homeward bound WestIndia ship taken by the French, near the Coast of Jamaica, while proceeding from Savannah le Mar to Bluefields to join convoy, and re-captured by persons going

(d) Hartfort v. Jones, 1 Ld. Rayın. 393. Baring & others v. Day, 8 East. 57.

(e) Viz. of detinue or trover....

(ƒ) The WILLIAM BECKFORD, Muirhead. At the Delegates, 17th and 24th Nov. 1801. MS. 3 Rob. A. R. 355. S. C.

in boats from the shore, one-sixth was allowed for salvage; and as the voyage homeward, and consequently the right to freight, had commenced, and the freight was ultimately earned, the salvage was paid upon the freight as well as the ship and cargo (g). (1)

In the case of a slave ship rescued from insurgent slaves on the coast of Africa, by another vessel employed in the same trade, one-tenth of the value was [385] allowed (h). In the case of a Danish ship, deserted by its crew on the English coast, and brought into Harwich without any considerable danger, two-fifths were decreed for salvage (i). In the case of another ship, which having struck upon a rock, lost her rudder, had her bottom beaten in, and been deserted by

(g) The DOROTHY FOSTER, Sowden, 6 Rob. A. R. 88.

(h) The TRELAWNEY, Lake,

4 Rob. A. R. 223.

(i) The FORTUNA, Quest. 4 Rob. A. R. 193.

(1) In Talbot v. Seaman, 1 Cranch Rep. 1, the supreme court of the United States decreed payment of one third of the nett value as salvage. In Mason & others v. Ship Blaireau, 2 Cranch 240, the same Court decreed one third of the gross value as salvage: and one third of the salvage to the owners of the saving ship; and in the case of the ship Mary Ford, 3 Dallas' Rep. 188, the same court decreed one third of the gross value as salvage, and two thirds of that to the owners of the saving vessel. In the case of the brig Jefferson stated in Post & another v. Robinson, 1 Johns. N. York Rep. 24, the district court of New York decreed one half of the nett proceeds as salvage. These cases are cited only to shew that here, as in England, the amount of salvage is discretionary, and that the Courts are liberal in the allowance of it. See also 4 Cranch. Rep. 317.