capture, (without experiencing any undue influence, either arising from apprehension and compulsion) might have on the master or crew, and whether they might not thereby be comprised within a new obligation, is not now our duty to determine." (2) In the case of the Franklin, Forsyth, the master and his crew having risen upon the prize-master and his men, confined them below, and altered the ship's course, for her own port of destination. As the ship and cargo were the property of different persons, the question occurred before the Lords of Appeal, whether the owners of the cargo were bound by the misconduct of the master? Overruled after much deliberation, and ship and cargo condemned. (k) The armed American schooner Topaz, Nicoll master, lay in the road stead of Macoa, (which extends for some miles between islands, and was asserted to be neutral Portuguese territory) where the British came on board to exercise the right of visitation and search. An American seaman deserted afterwards, and gave information, that she had committed various acts of piracy under a British flag, during her cruize upon the Spanish Maine. The British came a second time to exercise the right of search, to which the Americans made a desperate resistance, but were taken, and the vessel condemned in Bombay. The Lords of Appeal, the 9th of Feb. 1811, affirmed the condemnation. () (i) Acton, 1-36. CHAPTER IV. OF AID, IN PERILS OF THE SEA. (1) The Perils of the Sea, and the accidents to which the vessel and cargo are thereby liable, create a tacit contract for compensation, between the owners of such vessel and cargo, and those by whose assistance, either may be saved from impending peril, or recovered from actual loss. This compensation, is known by the name of Salvage, and is now most commonly made in money, for the expenses, time, labour and risk of the party, entitling himself thereto. Salvage is of two kinds, civil (or ordinary) salvage, when it is a rescue from the accidents and dangers of the elements; and military salvage, when it is a rescue from the hands of men. The doctrine of civil salvage, embraces the former doctrine of wreck; that of military, those legislative provisions and legal decisions, whereby salvage, or recapture from the hands of an enemy is entitled to compensation. SECTION I. OF SALVAGE. (CIVIL) Books of General Reference. Literatur des gesammten, sowohl natürlichen als positiven Völkerrechtes. Von OMPTEDA. Regensburg, 1785. § 218, 219 and 220. (1) The phrase "Perils of the Sea," it will be perceived, is here used in its largest sense, comprehending, as some authors observe, all the accidents or misfortunes, to which those engaged in maritime adventures, are exposed. 2 Rol. Ab. 248, pl. 10. Comb. 56-1 Show. 322. 3. NAU's Grundsätze des Völker-Seerechtes. Hamburg, 1802. § 113 to 119. These works, in the sections referred to, treat of the elder literature upon the subject of salvage. Commentarius de jure litoris auctore SCHUBACK. Hamburg, · 1751. This work has been since translated into German, and published in 2 vols. 4to. and contains all the oldest regulations on this subject, and is moreover interesting, in an historical point of view. Commentaire sur l'ordonnance de la Marine, par VALIN. Rochelle, 1766. The chapter "des naufrages" contains very appropriate remarks upon the BUESCH'S Zusätze zu seiner theoretish-practischen Darstellung der Handlung. Hamburg, 1798. The Life of Sir LEOLINE JENKINS. London, 1724. These works and the English reports referred to in the foregoing chapter, contain numerous interesting decisions and opinions upon cases of wreck. IT is to be hoped, that the period is approaching, when the right of wreck will only be known as a subject of history. The assumption, when a ship was lost at sea, that all goods which were thrown upon land, were the property of the lord of the shore, whether the real owner was known, to claim them or not, is a feature of the times, when every stranger found upon another's territory was looked upon as an enemy; and it is vain to seek for its origin with any particular nation, when the practice is known to have been universal. It is certainly erroneous, to ascribe it to the misapprehended revenue customs of the Rhodians. In accounting for its origin, it is to be observed, that as well before the civilization of the ancients, as also before the ad vancement of modern nations, piracy and sea robbery preceded any regular state of commerce; and that pirates and others who plundered the coasts, might naturally expect a retributive return from the inhabitants, in cases of wreck. But as soon as commerce assumed a regular system, it was to be expected that this right of wreck would have been abolished; and the Roman books contain many laws enacted for its suppression. Thus the Emperour Antonine,* in the first law of the Codex, under the title de naufragio, observes: "Quod enim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium-sectetur ?" What right has the treasury to profit by the calamities of others in hardships so severe ? Some time after this, in the Greek empire, various irregularities crept into the practice, which the Emperour Andronicus Comnenus, 1183, sought to remedy, by energetick laws on the subject. (a) In other parts of Europe, the Popes, principally on account of the crusades, sought to circumscribe the cruelty of the Law of Wrecks, and the Council of Lateran, 1179, attacked it in their Bull Coena Domini. A previous national Council, had sometime before 1127, taken the same step. (b) The Pomeranian Duke Bogislav, made a vow in one of the crusades, to abolish the right of wreck in Pomerania, and subsequently a limitation of three years was allowed, during which the owners might reclaim goods cast on shore; (c) an enlargement of privilege, which is allowed to such extent, in no other country but England. The decisions of Oleron, having relation to the numerous cases on the coast of Guyenne, and the shores adjacent, in Art. 25 & 26, (d) are so many attempts to restrain the right of tion. Not Constantine, as Blackstone has it in vol. II-292. Christian's edi (a) Loccenius de jure maritimo & navali. L. I. cap. 7. § 16. (b) Consulat de la mer, par Boucher. Paris, 1808. (c) Stypman jus maritimum, pars 5. cap. 5. N. 6. (d) Les us et coutumes de la mer. Tome 1-pag. 496: wreck, and by Louis the Pious, it was at length effected, that every master could procure from the Duke of Bretagne, a letter of exemption from the Laws of Wreck. Henry III. King of England and Aquitain, 1226, enacted by law, that goods stranded on the coast of France, wherewith a single person might escape from the wreck, should be restored; and, that if a living animal escaped, such goods should be subject to a claim for three months; after which period, they should with other goods, in cases where no living long to the publick treasury. (e) before enacted by Henry 1. (f) and subsequently of the Normans, from the reasons above assigned for its origin, have undoubtedly contributed to the continuation of the right of wreck. In North Germany, in consequence of this extended right, (Grundrure) even things which by the dilapidation of bridges, or other means, fell into the water and touched the bottom, as well as other shipwrecked goods, or vessels which in upsetting had caused the death of any person (which in England, is termed Deodand) formerly escheated to the lord of the soil. (g) person or animal escaped, beSimilar ordinances had been The inroads of the Saxons, The Emperour Frederick I. had previously ordained, that all stranded goods should be restored to their owners without any deduction; (h) and, Charles V. by the 218th Article of his Criminal Code, sought to abolish all the cruelty and injustice of this asserted right in Germany. But this right of wreck, particularly on the coast of North, Germany, was of long continuance, and Shuback's treatise contains many lamentable commentaries on it. The Consulate contains no direct provisions with regard to the right of wreck, because, as Boucher asserts, no such right (e) Engelbrecht corpus juris nautici, pag. 67. (f) Consulat de la mer, par Boucher. Tom. 1-pag. 497. (g) Molloy de juré maritimo et navali. London, 1774. L. 2. 1. 13. (h) Engelbrecht corpus juris nautici, pag. 38. |