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By the 4th section, an estimated appropriation for the expenses referred to in the 3d section, including those for the first half year, is made, and the limitation is in the proviso to that section. What is the meaning of that limitation? Was it designed to apply to the first half of the then next ensuing fiscal year; or only to such periods as estimates were to be made for under the 3d section? I think it means the latter. opinion, the words admit of that interpretation, and the spirit of the act demands it. That Congress could ever have designed, without information, blindly to limit the expenditure necessary for the collection of the public revenue, and leave the government to the injurious consequences of a mistake in the limitation, it would be derogatory to that body to suppose. I construe, therefore, the term “thereafter," in the proviso, as applicable to the period for which estimates are to be made under the 3d section, and not to the beginning of the coming fiscal year. Under that construction no mischief can ensue to the government; for if, in the judgment of the Secretary, the limitation which must control his esti. mates would be injurious to the collection of the revenue, he would so suggest, and Congress being in session, could, by specific or other appropriation, afford the remedy by enlarging it. If the proviso had been attached to the 3d section, it would be very clear that this would be its meaning; and looking to the whole act, its objects, and the possible, if not certain evil results of a different interpretation, my opinion is, that it is to be so interpreted. I have the honor to be, very respectfully, sir, your obedient servant,
REVERDY JOHNSON. Hon. WM. M. MEREDITH,
Secretary of the Treasury.
VESSELS OF THE NAVAL MARINE ENTITLED TO SALVAGE.
The officers and crew of a vessel in the naval marine service of the United States are entitled
to salvage for saving a French ship whilst on the rock of El Riso, near the anchorage of
Anton Lizardo ; the objection thai government vessels are not thus entitled being invalid. The rule is universal in the United States, that salvage rendered by the naval marine is to be
compensated in like manner as that rendered by the private marine.
ATTORNEY GENERAL'S OFFICE,
June 20, 1849. Sır: In compliance with the request of your note of the 11th instant, I proceed to give you a more formal opinion than I have heretofore done upon the question some time siuce submitted to this office, in the case of the salvage claim, at one time made by Captain Carpender, of the United States steamer Iris, in behalf of himself, officers, and crew, for saving the French ship “Engénie," off Vera Cruz, whilst on the rock of El Riso, near the anchorage of Anton Lizardo, in 1848.
I do not understand that it is devied that the service rendered entitled the parties rendering it to salvage, except upon the ground that them. selves and their vessel constituted a portion of the naval marine of the United States. Nor could such a deuial have been made. The property saved was in the most imminent peril, and its destruction certain, but for the aid of Captain Carpender and his men. It had every element of a
salvage case, and, upon general principles, independent of the official character of the salvors, their title to such an allowance would have been perfectly clear. The single objection then to the claim was, and is, that they were a part of the naval marine of the United States. Is this a valid objection? I think not; and I propose to examine it briefly, first upon authority, and second upon principle.
Unless there be, upon some ground of reciprocity, a different rule upon this subject, in relation to French vessels and property rescued from dan. ger, under circumstances entitling to salvage, than exists in relation to American and other vessels and property, it will be found, upon authority, to be a perfectly plain question.
How is the law in England ? Does there exist there any distinction hetween salvage service rendered by a public and a private vessel, or to a do mestic and a foreign vessel? There does not. This will be plain from the citation of a few cases. First, that the service is rendered by a public vessel. In the case of the Gage, (6 Rob., 273,) civil and military salvage were both decreed; and in the Lord Nelson, (1 Edwards, 79,) civil salvage; in each, the service being rendered by English men-of war, and the property saved being also English. No objection was intimated by the bar or bench to the claim, because of the official character of the salvors—an omission utterly inconsistent with the existence there of a distinction in such cases between public and private vessels rendering salvage service. Second, is the rule there a different one when the vessel and property saved are foreign, and not domestic? Clearly not.
In the case of the Pensamento Feliz, (Edwards, 115,) the vessel saved was Portuguese, and the claim actually made by the salvors was resisted, not upon that ground, nor upon the ground of the public character of the salvors, but because the service was not of a military kind, entitling to military salvage. In answer to this, Sir William Scott said: “Now, sup: posing it were clear that there was really no salvage of war, the effect of ihis objection would only be that I should put the parties to the expense of a new proceeding in the instance court. There is no doubt that a court of admiralty has a general jurisdiction to reward services of this nature, and that the party would recover by action in the instance court."
He evidently considered the claim as perfectly clear, doubting only as to the character of the salvage to be awarded; that is, whether it should be military or civil. But the right to it, notwithstanding the salvors belonged to the naval service of England, and the property saved was foreign, was esteemed too plain for question.
I could multiply English cases if I thought it necessary. The objection, indeed, is nowhere, that I have been able to discover, suggested, either in any English or American case, or by any English or American commentator. Nor is it necessary to cite but one American case-(the United States vs. the Amistad, 15 Peters, 518.) The facts, as far as this ques. tion is concerned, were these: The Amistad, a Spanish schooner, on the 27th June, 1839, cleared from Havana, in Cuba, for Puerto Principe, in the same island, having on board Captain Ferrer, and Ruiz and Montez, Spanish subjects, and fifty-four negroes. During the voyage the negroes rose, killed the captain, and took possession of the vessel. They spared the lives of Ruiz and Montez, on their engaging to aid in steering the schooner for Africa, or to a place where negro slavery did not exist. The negroes were, however, in this deceived, and the vessel steered for the
United States, where she arrived off Long Island on the 26th of August, and anchored within half a mile of the shore. In this condition she was discovered by the United States brig Washington, Lieutenant Gedney. With the assistance of his officers and crew, he took possession of her and of the negroes, and brought them into the district of Connecticut, and there libelled vessel, cargo, and negroes, for salvage. The Spanish owners of a part of the cargo filed their claim to it, and denied salvage The district court decreed it to Lieutenant Gedney, his officers, and crew, to the amount of one-third of the value of vessel and cargo, rejecting it for the negroes; and the owners of the cargo appealed to the circuit court. That court affirmed pro forma the decree, and the case was brought to the Supreme Court of the United States. There were many other questions, growing out of facts which I have not stated, because they have no bearing upon the one I am considering. It will be seen that, as far as that question is involved, the case is di. rectly in point. The property saved, vessel and cargo, were foreign, and the salvors a portion of the naval marine of the United States, on board a public vessel of the United States. It was even stronger, in this: that there the United States themselves intervened, maintaining that it was their duty, under the treaty with Spain of the 27th October, 1795, as continued in 1819 and 1821, to have the property delivered entire to the Spanish owners, without any abatement for salvage, or any other claim. The then Attorney General, Mr. Gilpin, concludes his opening argument by saying that “the court below has erred, because it has not decreed any part of the property to be delivered entire, &c. From the vessel and cargo it has deducted the salvage, diminishing them by that amount." Bui neither in the court above nor below was the title to salvage contested, except upon the ground of the supposed treaty obligation to restore Spanish property in the condition in which this was found. It was not pretended that any objection to it existed in the public character of the sal. vors or of their vessel. In giving the opinion of the Supreme Court, Mr. Justice Story says: “No question has been here made as to the proprie. tary interests in the vessel and cargo. It is admitted that they belong to Spanish subjects, and that they ought to be restored. The only point on this head is, whether the restitution ought to be on the payment of salvage or not.” (15 Peters, 592.)
(15 Peters, 592.) And, after examining the other questions which the case presented, he concludes the point of salvage in these words: “ As to the claim of Lieutenant Gedney for his salvage service, it is understood that the United States do not now desire to interpose any obstacle to the allowance of it, if it is deemed reasonable by the court. It was a highly meritorious and useful service to the proprietors of the ship and cargo, and such as by the general principles of maritime law is al. ways deemed a just foundation for salvage. The rate allowed by the court (being, as stated, one-third the value) does not seem to us to have been beyond the exercise of a sound discretion, under the very peculiar and embarrassing circumstances of the case.” And the decree as to that was accordingly affirmed. This must be held to be conclusive upon the proposition. The point was distinctly made, and distinctly decided. It is not, therefore, with us an open question; nor indeed, upon the preten. sions upon which I understand it to be resisted in the case of Captain Carpender, (the public character of the salvors,) was it, in England or the United States, ever doubted. In the case of the Amistad that character
existed, as also the foreign ownership of the saved property; and it was in relation to service so rendered, to property so owned, that the court said that it was • such as by the general principles of maritime law is al. ways deemed a just foundation for salvage.
T'he doctrine upon the subject is therefore obviously the game with us as in England; or, to use the language of Story, in his edition of Abbot on Shipping, page 379, No. 1, "the general principles as to the allowance of salvage are the same in American as in English jurisprudence."
The only point, therefore, that could possibly arise in the present case is, whether we have a different rule in regard to the salvage of French property. I can find none stated or intimated anywhere. The rule I hold, then, to be universal in the United States, that salvage service rendered by the naval marine of the United States is to be compensated in like manner as that rendered by the private marine.
And this brings me to inquire, secondly, how should the rule be upon principle?
That the public policy of all nations should encourage a service of this description, is manifest. Safety of life and property demands it, and the experience of the commercial world recommends it to universal adoption. It is the end to be attained which entitles it to, and secures to it, public favor, irrespective of the character of the means by which it is accomplished. The former addresses itself with persuasive influence to all. That end, as life and property are dear, is, if possible, to be secured, and all fair and lawful means to effect it are consequently to be encouraged. Why, then, is it that the officers of public armed vessels are not to have the same incentive to exertions necessary to the end with others? Are they under any other special obligation to do such deeds of kindness and humanity? The officer and the citizen are alike impelled to such service by general considerations of social duty. But the law has deemed it wise to add to the incentive of mere duty that of pecuniary reward. The ser. vice is often attended with great peril, and the experience of the world has proved that it should be stimulated by the prospect of pecuniary compensation. In the language of Sir William Scott, in the case of the Louisa Dodson, 318: “And, though it is certainly the duty of the King's ships 10 afford assistance to all his Majesty's subjects whom they may meet with in distress, yet I do not know that it is incumbent upon them, at the hazard perhaps of their lives, and without any prospect of reward, to take charge of a ship in a sinking state. Any hesitation in affording assistance might be of dangerous consequence to the property of persons so circumstanced; and it is therefore proper, for the encouragement of prompt and signal exertions on the part of the King's officers and men, to hold out to them the prospect of reward.”
The whole doctrine rests, in truth, upon an enlarged policy, and, from its very nature, must be irrespective of the private or public character of the salvors. In the words of Chief Justice Marshall, in the case of Mason et al. vs. Ship Blaireau, 2 Cranch, 240—a French vessel, by-the-by, res. cued from danger by the claimants of salvage -“ the allowance of a very ample compensation for these services (one very much exceeding the mere risk encountered and labor employed in assisting them) is intended as an inducement to render them, which it is for the public interests and for the general interests of humanity to hold forth to those who navigate the
If such considerations be well founded and who can doubt it?-it might prove a perilous experiment for France to adopt the rule, and obtain its recognition by the other nations of the world, that no salvage shall be allowed those who might rescue French life and property upon the ocean from impending destruction.
There is, however, no such rule now existing; and I am, therefore, very clear in the opinion that the case before me was one for salvage. I have the honor to be, very respectfully, sir, your obedient servant,
REVERLY JOHNSON. Hon. John M. CLAYTON,
Secretary of State.
THE CLAIM OF CHARLES F. SIBBALD.
Where by act of Congress the Third Audito“ of the Treasury was required, under the direc
tion of the Auorney General, to ascertain the actual damages which a claimant had sustained, and would be likely to recover, upon principles of law applicable to similar cases, by reason of the interference of any agent or agents of the United States, acting under their authority, with the use and enjoyment of his lands in East Florida, and under such instrucuons examined, and, in 1844, reported the saine at an amount which was accepted; and the matter was in 1847 re-opened, pursuant to a resolution of Congress, by direction of the Secretary of the Trensury, who, after causin: some of the items reported by the Comptroller to be reduced and others io be increased, made a final award of an additional amount, which was also subsequently received by the claimant, who, being dissatisfied therewith, desires the matter to be again opened - DECIDED, that the decisions, awards, and payment were a final dis
position of the claim, and to be esteemed in law a till execution of ihe act and resolution. Besides, the receivi' g of the sum allowed by the decisions and awards estops the claimant from
questioning that such allowance and payment was a full and final satisfaction of his entire claim.
ATTORNEY GENERAL'S OFFICE,
June 27, 1849. Sir: I have considered the case of Charles F. Sibbald, as you have subinitted it to this office, with much care, and have formed the opinion I am about to stale.
By the act of 232 August, 1842, (6 Stalutes at Large, 864,) the Third Auditor, ui der the direction of the Attorney General, was “ directed to ascertain the actual damages which Charles F. Sibbald has sustained, and would be entitled to recover, upon principles of law as applicable to similar cases, by reason of the interference of any agent or agents of the United States, acting under their authority, with the use, possession, or enjoyment of his lands," &c., in East Florida; and that the Secretary of the Treasury, aster such damages shall have been in that way ascertained, “in case any sum shall be found due,” shall pay the saine to Sibbald out of any unappropriated money in the treasury.
On the 12th Noveinber, 1842, Mr. Legaré, the then Attorney General, instructed the Auditor as to the manner of executing the law; and, among other things, advised him that the meaning of the words which I have above endorsed was, that the law was not to be considered as an admission that anything was due by the government, but that the claim was to be esteemed open for proof, and to be made out upon its merits. Under these instructions, the Auditor, after examination, reported against the claim altogether.
On the 21st September, 1814, Mr. Nelson, the then Attorney General,