Joseph Story

“ In order to do so, I shall observe that salvage has, in every country and in every code of laws, been considered as a matter of general average: the service is an act done for the common benefit, and to be recompensed by common and proportionate contributions. Vessel and cargo always contribute expressly; freight, in some cases, expressly; in others, really but less obviously, where the salvors receive their proportion of the cargo or its value without paying freight. ”

“ If, indeed, the principal might always withdraw himself from the view of the Court, and shelter his pretensions behind the affidavit of an innocent or ignorant agent, there would be no end to the impositions practised upon the Court. The Court expects, in proper cases, something more than the mere formal test affidavit of an agent, who may swear truly, and yet, from his want of knowledge, be the dupe of cunning and fraud. ”

“ If the first supposition be true, the awarding of salvage for the re-captured goods on board an armed vessel is a casus omissus; and the least we can be warranted in saying is, that it is in the discretion of the Court to settle that rate. ”

“ All foreigners who are permitted to reside in the United States, are under their protection, but no person who resides out of the United States is under the protection of the United States, but their own citizens. ”

“ No proceedings can be more unlike than those in the Courts of common law and in the admiralty. In prize causes, in an especial manner, the allegations, the proofs and the proceedings are, in general, modelled upon the civil law, with such additions and alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose. The Court of prize is emphatically a Court of the law of nations ”

“ Before we proceed to the consideration of the principal questions which have been argued, it will be proper to notice several objections to the regularity of the allegations, proceedings and proofs in the cause.
It is, in the first place, asserted, on behalf of the Claimants, that if this should turn out not to be a case of enemy property, but of salvage merely, (as most certainly as to some of the claims it must be held to be) the re-captors can take nothing by the present libel, because it proceeds upon the mere footing of the property being prize of war. ”

“ Because by the French law belligerent property, of which an enemy has had 24 hours possession, is considered to have changed owners, to be the absolute property of that enemy, and when re-captured it is treated as the absolute property of that enemy, and condemned as such by libel for prize of war. ”

“ It is no answer to this argument to say that where property has been libelled as prize, property of friends is frequently condemned upon the ground of residence in an enemy's country or trading with an enemy, because such property is considered, quoad hoc, as enemy's property, and therefore comes within the allegation of enemy's property in the libel. ”

“ The presumption is that the merchandize is enhanced that value by the importation. Now the salvage is not on the invoice value, but on the true value of the goods. This value is ascertained by sale or appraisement at the place where the property is brought; no deduction is made except imports and duties. Besides, the re-captors should not claim an additional recompense for perfecting that without which they could not participate in the cargo. The bringing this property safely in entitles them to the one sixth of its value, and that alone is specified in the statute as their reward. ”

“ They are all Frenchmen, and if they have not shewn a sufficient domicil to obtain for them the American national character, they must be considered as Frenchmen and abide the reciprocity resulting from their law. Where they are clearly permanent residents within the United States, they will be entitled to the benefit of that character, if my reasoning as to Americans domiciled in France be correct; if it be not, they must suffer under the rule the Court will then lay down and be regarded as Frenchmen. ”

“ Prize proceedings were immediately instituted against the vessel and cargo as enemy property; and various claims were interposed in behalf of American and French merchants. Upon the hearing of the cause, the district Court decreed a restoration of all the property of American citizens and other persons resident in the United States, upon the payment of one sixth of the value as salvage, and condemned all the property of French subjects and of American citizens domiciled in France, and of all others whose residence remained unexplained, as good and lawful prize to the captors. ”

“ Because, being American citizens, and there being nothing unlawful in their residing in France, or any other country, with which we are at peace, they have not forfeited any of their rights as citizens of the United States. ”

“ The service is not rendered to an individual, it is rendered to the nation; it is more meritorious; feelings of patriotism more than of interest may have impelled to the performance of the duty; the danger was greater, the object more important; the recompense should therefore be encreased.
But the first and second sections of this statute are wholly independent. The first relates to the re-capture of private property either by our public or private armed vessels. The second relates to the re-capture of public property either by our public or private armed vessels. ”

“ Ogden's argument, who (partially admitting that a bad claim is tantamount to none at all) contends that the want of one is no ground for condemnation. In England, by the prize acts, regulations are made in case of non-claims for a limited time. In our Courts, for want of any such regulations, defaults, as I understand, are usually taken, but the property not put out of the power of the Court for a reasonable time. ”

“ The sentence was reversed on appeal, but as it was neutral property re-captured, the lords of appeal referred it to their surrogates to decide whether any and what salvage was due, with provisions for executing their decree. The surrogates decided that no salvage was due; but it is clear that if it had been a case for salvage, the restitution, on this reversal of the sentence of condemnation, would have only been on payment of it. It is unnecessary to discuss the arguments drawn from our different and totally inapplicable modes of proceeding under our municipal code. ”

“ In the present instance it is idle to talk of danger; the Adeline from her armament was incapable of making resistance, and whether she did or not is problematical, as from the proparatory examinations there appears to be an uncertainty whether any resistance was attempted. It is, however, certain that the resistance, if any, was a mere parade; and that having fired one or two guns, the vessel instantly surrendered. Not a soul was hurt on either side, and the privateer did not deem the resistance sufficiently important to return. ”

“ It is argued, in behalf of the re-captors, that the Adeline being an armed vessel, they are entitled to a moiety of the value of the cargo as well as of the vessel; either upon an equitable construction of the statute, or upon general principles, as a case not within the purview of the statute.
We are all, however, of a different opinion. The statute is expressed in clear and unambiguous terms. It does not give the salvage of one sixth part of the value upon goods, the cargo of an unarmed vessel ”

“ The same reasoning will not apply to the goods; the public reap not the same benefit from their re-capture.
But it has been heretofore argued in this cause, that a greater rate of salvage should be allowed than one sixth, and that a construction to that effect should be given to the statute, because the service was very meritorious; the property had almost reached an enemy port, and but for the management and intrepidity of the re-captors would have been wholly lost. ”

“ They discriminate between private unarmed vessels and goods, allowing one sixth for salvage, and for the vessel alone, if armed, a moiety. The recaptured property of the United States is placed in a distinct section, wholly unconnected with the other. ”

“ But where the principal is within a reasonable distance, something more than a formal affidavit by his agent is expected. At least the suppletory oath of the principal as to the facts, should be tendered ”