12. It may be proper to mention in this place the practice of the Court of Admiralty, in the case of the property of the allies of this country, taken at sea by a common enemy, and retaken by the subjects of this country. For this purpose I cannot do better than use the words of the learned Judge, who now presides in that Court. "The maritime law of England,” says Sir William Scott, "having adopted a most liberal rule of "restitution on salvage, with respect to the recaptured

property of its own subjects, gives the benefit of that "rule to its allies, till it appears that they act towards

ciple of the English Courts of Admiralty (previous to their acts of parliament,) is adopted, of considering the property of goods captured completely, devested only by a sentence of condemnation in a court of competent jurisdiction. 2 Burr. Rep. 694. 1208. The jus postliminii continues until such condemnation, and no longer. Hutson v. Guestier, 4 Cranch. Rep. 293. The act of Congress of the United States, 3. March, 1800, (5 U. S. L. 38. sect. 1.) provides, that if the vessel or goods of any person, resident within or under the protection of the United States, be recaptured after a hostile capture before such vessel or goods shall have been condemned as prize, it shall be restored to the ⚫ owner on payment of salvage, of one eighth part if recaptured by a public vessel, and of one sixth part if by a private vessel of the United States; but if the recaptured vessel be armed, either before or after capture, then the salvage shall be one half part.

If the recaptured vessel or goods belong to the United States, the salvage shall be one sixth part, if recaptured by a private vessel, and one twelfth part, if by a public vessel and if the recaptured vessel be a public armed vessel, then one moiety if recaptured by a private vessel, and one fourth part if by a public vessel. Same act, sect. 2.

"British property on a less liberal principle; in such a 26 case it adopts their rule; and treats them "according to their own measure of justice" (a). [403] In conformity to this rule the San Jago was not restored to the King of Spain, because retaken from his then enemy the French under circumstances, in which the Spanish Courts had condemned British property retaken by the Spaniards: and shortly afterwards two Portuguese ships were for the same reason condemned; and several others at the same time restored (y), be cause in the interval between the different captures, an Ordinance of the Court of Portugal had altered the rule of restitution in that country; and they were restored upon payment of the rate of salvage established in Portugal; viz. one-eighth to King's ships, and one-fifth to privateers. Of this rule of British jurisprudence, whatever attempts may be made to shake it from motives of public policy or private interest, reason must now declare, and posterity will hereafter confess, that it is founded on the immoveable basis of reciprocal justice (1).

(x) In the case of the SANTA CRUZ, 1 Rob. A. R. 63. The whole is a most finished model of judicial

eloquence.

(y) Same case.

(1) The act of Congress above cited (sect. 3.) adopts the same liberal rules in its provisions on this subject in the fullest extent. See in the Appendix this act at large.

In cases of recapture, by the same act, the salvage, if given to a public armed vessel, is to be distributed as prize money; if given to a private armed vessel then according to the agreement between the parties concerned; if there be any, if not, then as the court having jurisdiction thereof shall appoint.

13. If the property of a nation not engaged in hostility with the enemies of this country, happen to be taken as prize by them, and retaken out of their hands by his Majesty's subjects; the probability of its condemnation in the Courts of the country of the captors is to be considered: and unless there appear to be ground,

In other cases of salvage the manner in which it shall be distributed is discretionary.

The leading cases on this head in England are in case of derelict, The Aquila, 1 Rob. Adm. Rep. 37. ;-of recapture by unauthorized vessels, The San Bernardo, 1 Rob. Adm. Rep. 178. The Haase, 1 Rob. Adm. Rep. 286. The Amor Parentum, 1 Rob. Adm. Rep. 303.; of rescue, The Two Friends, 1 Rob. Adm. Rep. 271.; of services to vessels in distress, The William Beckford, 3 Rob. Adm. Rep. 355. The Franklin, 4 Rob. Adm. Rep. 147. The Vrow Margaretha, 4 Rob. Adm. Rep. 103. In the United States in case of derelict, The Mary Ford, 3 Dallas' Rep. 188.; and of service to vessel in distress, Mason & others, Libellants, v. Ship Blaireau, 2 Cranch. Rep. 240. On recapture of American Ships, Bas. v. Tingey, 4 Dall. Rep. 37.; of neutral ships, Talbot v. Ship Amelia, 1 Cranch. Rep. 1. See also 2 Dall. Rep. 1. 1 Peters. Adm. Rep. 31. 70. 87. 278. 284. 424.

If apprentices are salvors, their masters are not entitled to their share of the salvage, but it shall be paid to the apprentices themselves. The right of the master to the earnings of his apprentice extends only to those in the ordinary way of his business, and not to those which arise from extraordinary services, which have no connection with his business. The Ship Blaireau, 2 Cranch. Rep. 240. The same point seems decided incidentally in The Beaver, 3 Rob. Adm. Rep. 292.

on which it may be supposed that it would have

been condemned in those Courts, it is to be re- [404]

stored without the payment of any salvage. In the late war, the conduct of the cruizers and prize courts of France having given reason to apprehend that neutral property arrested by the former on the high seas, would in almost all cases be condemned by the latter, salvage was usually allowed to recaptors of neutral property out of the hands of the French by our Court of Admiralty, and such allowance was not thought unreasonable by the neutral merchants: but this was treated as an exception to the general rule, founded on particular circumstances (z).

(z) The CARLOTTA, Pasquel, 5 Kreagh, 4 Rob. A. R. 156. Rob. A. R. 54. The HUNTRESS, Stinson, 6 Rob. The ELEONORA CATHARINA, A. R. 104.

But while the policy of the law holds forth a liberal reward to all persons who fairly exert themselves to succour vessels in distress, it studiously denies it to those who on occasions of that nature are guilty of gross misconduct or fraud, and therefore if one of the salvors embezzle part of the goods saved, he forfeits his right to salvage. The Ship Blaireau, 2 Cranch. Rep. 240.

See also as to this general doctrine, The Huntress, 6 Rob. Adm. Rep. 104. The Sansom, id. 410., and Talbot v. Ship Amelia, 1 Cranch. Rep. 1. S. C. 4 Dall. Rep. 34.

CHAPTER THE ELEVENTH.

OF THE DISSOLUTION OF CONTRACTS FOR THE CAR

1.

RIAGE OF GOODS IN MERCHANT SHIPS.

HAVING

AVING thus considered the several species of contract made for the carriage of goods in merchant ships, and the various duties arising therefrom, I proceed in the last place to the examination of the modes, by which contracts of this nature may be dissolved. And these are, either the voluntary act of the [405] contracting parties, or some extrinsic matter happening after the making of the contract and

before its completion.

2. It is a general rule that whatever derives its force and validity from the consent of parties, may by the mutual consent of the same parties be rendered null and invalid. There is indeed a technical rule of the law of England, which requires the discharge of a person from a contract to be made by an instrument of as high a nature as the original instrument of contract: and this rule is applicable to the contract of affreightment by charter-party under seal; but in case of a discharge by mutual consent not expressed in this formal manner, the rule would at the utmost have no other effect than to render it necessary for the party to apply to a Court of Equity. In all such cases however prudence requires that the deed should be cancelled and delivered up.

But a merchant, who has laden goods, cannot insist upon having them relanded, and delivered to him, with