Page:EB1911 - Volume 24.djvu/112

Rh and the officers andcrew divide the 'rest-l inf proportion to their ratings. ' But where the- salving ship »has"sustained 'special damage in the service, or her owners havetbeen put toiloss by it, thatvis taken into account. On the other handy where special* personal services have been rendered by members' of the 'crew they are specially rewarded. I  A f I ' f ~ ' » 1-As an illustration take the case of'1:he';ffRasche li ~(L.R. 4 A. and E.. 127). 'The brigantine “ Rasche/l derelict, was fallen injwithgby the ship “ Scythia ” (carrying a very valuable cargo) 220 m.   of the Lizard. The mate and three hands of the ""'Scythia” Were put on board, and in circuinstancesof much 'hardship and danger they brought her after eighteen dayslsafely to. Liverpool. After* deducting expenses incurred;by the owners of .the “.Scythia, ”f the, value of the property saved was £6294. Sir-R. Phillirnorevawarded £3z'9o; and' of thishe gave £600 to the mate, £510 to each, of the threemen who had-accompanied him; £500 to the owners of 'the “ Scythia ”; and £350 to her other officers and crew. '~ 1 '  '-An agreement as to the salvage to be paid is sometimes made' s at the time the assistance isigiven. When made fairly the court 1 will act:upon it, though it maytum out toTbe a badhbargain for one or other of the, pa.rties.5 But if the facts were not correctly apprehended by -one or both, or ifthe position was one of such difficulty, that those salved had' no realnoption as to accepting the sa.lvor's terms, the courts will set' the agreement aside. This happened, foriinstance, where thevsalving ship =refused~ to rescue 550, wrecked pilgrims -from the Parkin Rock 'in the Red Sea for a less sum than £4000. An agreement had in consequence been signed for their conveyance for that' sum to Iedda, two or three days' sail. The Parkin Rock stands 6 ft. above the water, and had had weather co'me' on the lives would have been in 'great danger. It was held that the sum asked for was exorbitant: and that the agreement, made. under (S>ractical~, co, mpulsion, could not stand (the ' Medina, ” 2 P, D. 5). n the other hand, an agreement to tow, for a fixed sum, ia vessel which had suffered considerable damage, was set aside, and salvage awarded, on the ground that the damaged condition had not been disclosed to the tug'when the contract was made (the f' Kingalocli, " I Spink, 265). 4 =, Q.,
 * The award of salvage is generally made in oneisumagainst.

ship, freight and cargo; and those interests, contribute to the amount in proportion to the value saved. N0 distinction is made between the degree of service rendered to one interest and another. But, with a possible, exception in the -case of life salvage, there is not a. joint liability of the several interests. Each is liable to the salvors for his own share, and for, n0 more.-The ship cannot be made to pay the cargo's share, nor the cargo the ship's. If, however, the shipowner pays the cargo's share, hehas a lien upon it for the amount. In practice the liabilities for salvage are ordinarily adjusted as part, of general average. Strictly, however, there is a difference. .Theliability topay salvage is a direct liability to the salvors, arising atonce, e.g. at the port of refuge, and proportional to the values there; whereas the liability to contribute to a general average loss or expenditure is postponed until the completion or break upof the adventure, and depends upon the values of the interests which have arrived there; which may be very different. (See AVERAGE, INSURANCE, I Marine, and a1so ADM1RAr.TY JURISDICTION.) -, ., V. s

.—Kennedy, On the, Law of Civil Salvage (London, 1907); Abbott, Law of Merchant Ships and Seamen (14th ed., London, 1901); Carver, Carriage by Sea (5th ed., London, (1909).

2. Military Salvage is analogous to civil salvage. It is defined as such a service as may become'the ground for the demand of a reward in the court as a prize court, and consists in the rescue of property from the enemy in time of war. Such cases almost invariably relate to ships and their cargoes; and theyf have always been dealt with by courts having Admiralty jurisdiction, sitting as prize courts. They involve the determination 'oftwo questions: first, whether the property is ito, be restored” to its original owner or condemned as prize to fthe recaptor; and second, what amount of salvage, if any, is to accompanyrestitu# tion. 'Generally speaking, the first question depends upon the law of nations, which may be taken to be that where a ship has been carried by an enemy infrdpraesidia, and especially after 'a sentence of condemnation, the title of the original owner is divested, and does not revest upon recapture by third parties. Intlsuch a -case, ” therefore, jure gentium restitution cannot be élaimed. 'The municipal law of civilized countries, however, cloe'sf¢not 'encourage subjects- to “fmakef"reprisals upon one another” (the “ Renard, ” Marr. Adm. Dec.'2z2), *and lawsaare generally foundjas -in England, which 'as between subjeéts of that particular state provide for restitution irrespective of any change in the title to the subject matter which may have occurred. But (speaking 'henceforth of England) in cases. which do' not fall strictly within these acts, the old maritime law, which was in unison with the generalvlaw of nations, is applied by the courts; Moreover, the English Prize Acts do not apply to foreign owners of recaptured prizes, and therefore no award: can be made against them unless in accordance with the law 'of nations. In practice the courts:have acted upon the “ rule of reciprocity ” where recaptures have been made of the property 'of formal allies, dealing with tl'1€l11'8.S~' the 'allied state would have 'dealt with Englislrproperty. In the 'case of neutralfrecaptures restitution is always ordered. -An exception to the rule of restitution as between British subject sis made in the case of a British ship whichfhas- been 'f set forth as a ship of war ” by the captor, and subsequently retaken by a British ship.” Such a ship is not liable to restoration, but is 'the prize of the recaptor. This exception, thefobject of which is to encourage the capture of armed ships, dates from 1793, previous acts .having -provided for restitution upon payment of a moiety as salvage. The condition of setting forthiasa ship of war is satisned, where under afair semblance of authority, which is not disproved, the ship “has been used in the operations of war, and constituted a part of the naval foice of the enemy ” (the “ Ceylon, ” 1 Dod. IOS). Such a user perma# nently 'obliteratestlie ship's original character, and extinguishes all future claims to restitution' (“ L, 'A¢:l@', ” Edw. 185). As to the right to salvage and the amount whichrfwill 'be allowed; this is also a question of the jus gentium, though usually governed by municipal law. The right was recognized so long ago as the 11th century, when the “ Consolatodel M are ” (see CONSULATE or rms TSEA) laid down elaborate provisions on the subject. In England the first statutory recognition of the right occurs in 1648, when an act of the Commonwealth, which in its outline has been the model for all subsequent Prize-Acts, provides that British vessels 'captured by an enemy and retaken 'by British ships shall be restored upon payment of one-eighth of the value of the property in lieu of salvage, orlone-ha1f“in the case of a prize “set forth as a ship of war.” From that date until 1864, the date of the act now in force, there have been thirteen Prize Actsdealing with recapture, each of which, except that of 1864, has been passed to meet a particular occasion, and has expired with the cessation of the then existing hostilities. Since the first act, and down to the actof ISO 5 inclusive, a distinction has always been drawn between a recapture effected by one 'of the royal ships of' war and -a recapture by a privateer or other vessel. In the former case the allowance has always been one-eighth, in the latter it varied, but was usually one-sixth. In the act of 1692 a clause taken 'from a-Dutch law gave salvage to a privateer, rising in amount from oneleighth to one-half according to'the number of hours the prize had been in the enemy's possession, but this clause has disappeared since 1756. There is no provision in the present act for the payment of salvage, except in case of recapture by one'of' His Majesty's ships, but it seems beyond question that re captors are entitled at lawto salvage, although they may hold no commission from the crown; “ It is the duty of every subject of the king to assist his fellow-subjectsxin war, and to retake their property in the possession of the enemy: no commission is necessary to give a person so employed a title to the reward which the policy of the law allots to that meritorious act 5 of duty ” (the “Helen/' 3 C. Rob. 226, per Sir W. Scott). Though it is improbable that privateers williigure in any future war, it may reasonably be anticipated that recaptures may be 'made by private vessels, and in such cases salvage would probably be awarded, the proportion lying in the discretion' of the court. Similarly, salvage is awarded in the case of" recapture " from pirates orvfrom a mutinous crew; In the case ofroyal ships the present act allows one>eighth salvage, which in cases of “ special difficulty or' danger ” the court niayincrease to 'a> quarter. Tho latter provisidn is an innovation. V' " ' '