CHAPTER II.

OF SALVAGE; AND HEREIN,

SECTS. 1. Of Salvage generally, p. 557.

2. Of Salvage at Common Law, p. 558.

3. Of the Jurisdiction of the High Court of Admiralty and the Rates of Salvage awarded by it in Cases of Salvage of Ships in Distress at Sea and of Derelict, p. 560.

4. Of Salvage by Chartered Ship; Salvage Agreements; Salvage between Ships belonging to the same Owner, or engaged as Consorts in the same Adventure; Salvage by Persons employed to render other than Salvage Service; Salvage of Ships damaged by Collision with the Ships of those claiming from them Salvage remuneration; Salvage by licensed Pilots, p. 567.

5. Of Salvage by the Crews of the Royal Navy, and by licensed Pilots, p. 570. 6. Of the Apportionment of Salvage Reward among those engaged in the Salvage Service, p. 572.

7. Of Salvage for Preservation of Life, p. 577.

8. By whom and in respect of what Interests Salvage is payable, p. 579.

9. Proceedings in Admiralty, p. 580.

10. Appointment and Duties of Receivers, under 17 & 18 Vict. c. 104, p. 580.

11. Of Salvage in the United Kingdom, 17 & 18 Vict. c. 104, p. 583.

12. Of Salvage within the Jurisdiction of the Cinque Ports, p. 587.

13. Of Salvage on Recapture, p. 588.

14. Of Salvage of Ships and Merchandise found in Possession of Pirates, p. 594.

1. Of Salvage generally.

Ir seems proper in the next place to consider a subject which the dangers of navigation frequently render alike interesting to the shipowner and to the merchant; namely, the compensation that is to be made to other persons, by whose assistance a ship or its lading may be saved from impending peril, or recovered after actual loss. This compensation is known by the name of salvage, and at present is commonly made by 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, con

tain provisions and enactments on this head (a). 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. 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 labour 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 at 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. The legislators of all civilized and commercial states in modern 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 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. Of Salvage at Common Law.

A person, who by his own labour preserves goods which the owner, or those entrusted with the care of them, have either abandoned in distress at sea, or are unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved, until the 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 on his implied contract (if the circumstances justify an inference of it) to make compensation for the service rendered in respect of them (e) 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 (f) against the salvor; and if the jury think the sum tendered sufficient, he will recover his goods or their value and the costs of his suit. But a

(a) See the Calypso, 2 Hagg. 218.

(b) I have used the words "in modern times," because, formerly, the claim of the Sovereign power in some countries was not less 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 Edw. 1, c. 4; 4 Edw. 1, stat. 2, s. 2; 12 Anne, stat. 2,

c. 18; 26 Geo. 2, c. 19, and 1 & 2 Geo. 4, c. 75 and 76; 1 Black. Com. chap. 8, sect. 11.

(d) Hartfordv. Jones, 1 Lord Raym. 393. Nicholson v. Chapman, 2 Hen. B. 257. Newman v. Walter, 3 B. & P. 612. Baring and Others v. Day, 8 East, 57.

(e) Lipson v. Harrison, 2. W. R., Q. B. 10. (f) Viz., of detinue or trover.

CHAP. II.]

Salvage.

person, even though he may be the lord of the manor, cannot entitle himself to a claim of salvage by taking possession of a wreck or parts thereof against the consent of those who are at hand and upon the spot, employed by the owner of the ship to save and preserve them (g). And if one set of persons have taken possession of a vessel abandoned at sea, and are endeavouring to bring it into port and save it, another set have no right to interfere with them and become participators in the salvage, unless it appears that the first would not have been able to effect the purpose without the aid of the others (h). Nor, if a vessel be preserved, the cargo of which consists of government stores, is the dispossession of the original salvors by the officers of a king's ship warranted by law, without reasonable cause for their interference. Should, however, persons be found in possession, who, from want of experience, may be unfit to be trusted with valuable property, or who have been guilty of gross misconduct, which may render their removal proper and necessary, the interference of the king's officers may in such cases be not only justifiable but even laudable (i).

Å salvor is defined to be one, who, as a volunteer at sea or on land (k) assists a ship in distress (7); therefore, a mariner placed by his own captain under the orders of a captain of a ship in distress, cannot sue the owners of the latter for his services. Nor can the officers and crew of a ship claim salvage in respect of service rendered to it (m), unless indeed their duty to its owners had ceased by the master's bona fide abandonment of it at sea without hope of recovery (n); but it is otherwise if the abandonment be on the coast, or only temporary," or not by the order of the master (0).

Express demand or express acceptance of salvage services actually performed is not necessary to entitle salvors to salvage reward (p).

It being the duty as well as the interest of all persons on board a ship in distress to contribute their aid for its rescue, a passenger is not entitled to make a claim for the ordinary assistance he may be enabled to afford on such an occasion (q). He is not, however, bound to remain on board the ship in time of danger, but may quit it if he has an opportunity to do so; much less is he required to take upon himself any responsibility as to the conduct of the ship. And, therefore, in the following case, a passenger was permitted to recover a very considerable sum for extraordinary services performed and responsibility incurred. A ship, bound to the West Indies, struck upon the shoals who had off Chichester in a gale of wind, and in that situation was deserted by person the master, who took part of the crew with him. A commanded vessels in the same trade, and was then on board as a

passenger, took the command of the ship by the desire of the passengers, and with the consent of the mate and the remainder of the crew, and carried her back in safety to Ramsgate harbour. At the trial of the cause, Lord Alvanley, C. J., told the jury, that as the plaintiff appeared to have placed himself in a situation of responsibility, and would have been answerable for neglect or misconduct, he was entitled to be paid something for his service-and they gave 4007. An application was made to the Court of Common Pleas in the ensuing term to set aside the verdict, but the court refused to do so (r). The rights of original salvors are always jealously maintained by the Court of Admiralty (s); even where their efforts have been unsuccessful until the arrival of other assistance, a large share of salvage has been allotted to them (t): but it is otherwise if, having laboured unsuccessfully, they abandon the ship without intention of returning, and she is afterwards got off by others (u). If the ship be in distress and accept the services of strangers, they are entitled, though the work done by them be of little difficulty or importance, to a salvage remuneration, their claim to which is not prejudiced by an injury sustained by the distressed ship from the negligence of a licensed pilot in whose charge it was given by them after bringing it to a situation of safety, though not to anchor (v).

3. Of the Jurisdiction of the High Court of Admiralty, and of the Rates of Salvage awarded by it in Cases of Salvage of Ships in Distress at Sea and of Derelict.

If the salvage is performed at sea (w), or between high and low water-mark (x), the Court of Admiralty has an original 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.

This jurisdiction was extended by the 3 & 4 Vict. c. 65, to all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or seagoing vessel, or in the nature of towage, and to the enforcing of payment thereof, whether the ship may have been within the body of a county or upon the high seas at the time when the services were rendered (y).

By the 17 & 18 Vict. c. 104 (≈), the court has jurisdiction to decide

(r) Newman v. Walters, 3 B. & P. 612. (8) The Charlotte, 2 Hagg. 364. The Glory, 14 Jur. 678. The Pickwick, 16 Jur. 670. The Effort, 3 Hagg. 165. The Glasgow Packet, 2 W. Rob. 313.

(t) The Gennessee, 12 Jur. 401. (u) The Indian, 1 W. Rob. 406. Zephyrus, ib. 330.

miralty seems not to extend higher up the river Thames than a sand, called the Black Tail Sand. See 6 Rob. 39, and the case of Baxter and Others v. Reader, there cited.

(x) 1 & 2 Geo. 4, c. 75, s. 31. The Court of Admiralty has jurisdiction over an agreeThe ment for salvage service, though it be made on shore. The Catherine, 12 Jur. 682. (y) Sect. 6. (2) Sect. 476.

(v) The Bomarsund, 1 Lush, 17.
(w) The jurisdiction of the Court of Ad-

upon all claims relating to salvage, whether the services in respect of which salvage is claimed were performed upon the high seas or within the body of any county, or partly in one place and partly in the other, and whether the wreck be found at sea or cast upon the land, or partly in the sea and partly on the land.

In fixing the rate of salvage, this court usually has regard not only to the labour 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 (a).

"As

To owners of vessels, which, in rendering assistance, have either been diverted from their proper employment, or have experienced a special mischief, occasioning delay, injury, and loss, equitable compensation is frequently awarded by the Court of Admiralty (b). to the owners," said Sir Christopher Robinson, in the case of the Jane (c)," the general principle of law is, that their claim is very slight, unless, from the circumstances of the case, their property becomes exposed to danger, or they incur some real loss and inconvenience. There was no danger to their property in this case; but in the detention of their vessel, and consequential risk and expenses, I think there is strong foundation on their part for a claim to share in the salvage." In one case, where the sum of 4,000l. was allowed for salvage, onehalf was allotted to the owners of the assisting vesssel, on the ground of the injury she had sustained, by the great weight of the articles saved, and the risk she ran of vitiating her insurances by increasing the peril of her voyage. Upon the same principles, in the case of the Thetis (d), the claim of the commissioners of the Admiralty to share in the salvage reward, in respect of the wear and tear of the vessels employed in the salvage service, and the stores supplied to them was admitted (e).

It will be presumed, in favour of salvors, should their vessel be injured or lost in the course of the salvage service, that the misfortune was was caused by the necessities of that service, and not by their own default, the burthen of proof to the contrary being thrown upon the defendant (f). If salvors have misconducted themselves, or acted negligently or unskilfully, although their services may upon the whole have been meritorious, a smaller amount of salvage than would otherwise have been given will be accorded to

(a) In the case of the Upnor, 2 Hagg. 3, salvage was refused for bringing into port a barge found, without anchor or crew, aground, on evidence that it was not uncommon to leave barges where the barge was, and fetch them off afterwards. See also the William Beckford, Muirhead. At the Delegates, 17th and 24th Nov. 1801, MS. 3 Rob. 355, S. C. (b) The Vine, Jay, 2 Hagg. 1. The Mulgrave, 2 Hagg. 77. The Salacia,2 Hagg. 262. (c) Those who remain on board the salving vessel usually share the salvage, if ready to encounter the peril, though not to the same extent as those actually engaged in the

service. The Baltimore, 2 Dods. 132. The Charlotte, 2 W. Rob. 495. The Jane, 2 Hagg. 338. The Sarah Jane, 2 W. Rob. 119. The Mountaineer, 2 W. Rob. 7; but see the Emma, 3 W. Rob. 131.

(d) Post, pp. 563, 573.

(e) The Waterloo, 2 Dods. 436. But in a recent case, the court refused to increase the share of the owners on account of the probable vitiation of a policy of insurance on the ship, and said that in apportioning a salvage remuneration it would consider every vessel as uninsured. The Deveron, 1 W. Rob. 180. (f) The Thomas Blyth, 1 Lush. 16.