SIR WILLIAM SCOTT. This case has already been before the court once or twice, and I have now come to the determination to permit the attendance of Trinity masters. It is the case of an American ship which was proceeding on a voyage from Boston to Petersburgh, and put into the Texel in distress. At the former hearing I was much inclined to hold that, although a vessel going into a blockaded port would be subject to condemnation, the legal presumption that she is going in there for the purposes of trade, was ousted by the fact of her being taken coming out without having delivered her cargo. But I think that the case, in the first instance, is fit for further inquiry, because, if it shall turn out that the ship went in for the purpose only of getting repaired, and that the port of the Texel was a fair port to make, with reference to the alleged distress, the case will be entitled to be favorably considered. If, on the other hand, it should appear that there was no such necessity, the legal presumption will be, that she actually went in there for the fraudulent purpose of delivering her cargo; and it is not her having come out again without executing that purpose, owing to some unexpected change of circumstances, that will entirely remove the illegality. At present the court has no absolute constat that the vessel came out with the original cargo, as it has not been inspected; but supposing the fact to be that the cargo remains the same, but that she went in

*

meaning to dispose of it, and there found the rigor of the [* 253] French decrees, or the disadvantages of the market, to be such as to frustrate the intention, in that case the delinquency of a fraudulent intention has actually been consummated, and the vessel would be subject to confiscation. I am, therefore, desirous to look a little further into the case, in order to know whether her going into the Texel, after passing by all the intermediate ports between the island of Sylt and that place, was a step which, under the circumstances alleged, ought naturally to have been taken. The master states in his deposition, " that having passed the Texel, and made

1 [The Hurtige Hane, 2 C. Rob. 124.]

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the island of Sylt, he was driven back by stress of weather, and compelled to put into port." I think, therefore, that I see enough in the case to make it not improper to require the attendance of Trinity masters, in order to ascertain how far the Texel was fairly a preferable port, under all the circumstances of the case. Certainly it is a port which ought not to have been resorted to unless under the clearest necessity.

On a subsequent day, the Trinity masters gave it as their opinion, that the deviation was necessary, and that the Texel was fairly a preferable port, as the state of the wind made it impossible for the ship to proceed to Gottenburgh, and there were circumstances which made the ports in the neighborhood of Sylt objectionable. This being a sufficient justification, the ship and cargo were ulimately restored.

Salvage on American vessels recaptured from the French not having certificates of origin on board.1

JUDGMENT,

SIR WILLIAM SCOTT. This is a case which involves the question whether these American ships and cargoes which were not proceeding to French ports, are liable to pay salvage on recapture by British vessels out of the hands of the enemy. The principle to which this court adheres is, that no salvage is due where a service is not actually performed, or where loss was not highly probable. It has been contended by Dr. Dodson, that salvage is due upon American property on a principle of reciprocity, and a case has been cited by him. from Dallas's reports of cases adjudged in the courts of the United States of America, for the purpose of showing that it is the practice of those tribunals to decree salvage on neutral property rescued from the possession of French captors. It was the case of a Hamburg ship which had been captured in the course of a voyage from Calcutta to the port of her owners by a French national corvette, and

2

1 [The War Onskan, 2 C. Rob. 299.]

2 Talbot v. The Ship Amelia, 4 Dallas, p. 34.

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was afterwards retaken by a ship of war belonging to the United. States, and carried to New York. By a decree of the supreme court at Washington, the ship and cargo were restored to the neutral claimant, on payment of one sixth part of the net value for salvage; and from this it seems, at first sight, as if the Americans considered the rescue even of a neutral vessel, from the possession of a French captor, as a sufficient ground for salvage. But I think it is open to this explanation, that the case went not upon the general principle, but upon the irregular administration of maritime law [255] in the French courts of admiralty at that time, by which

a vessel once in the hands of a French captor, whether neutral or not, would be in danger of confiscation. I cannot, therefore, take this case as furnishing a rule on which this court can rely for giving salvage on American property rescued from the possession of the French, on any principle of reciprocal justice.

In the early part of the last war, the court held, that though America was not in a state of actual and entire warfare with France, yet that American property recaptured was subject to salvage, on the ground that such was the rapacity of the enemy that no vessel had a chance of being liberated from their courts of prize, under their known disregard to all neutral claims. In that state of qualified hostility, (for war had not been declared by France against America,) the demand of salvage was very readily submitted to by the Americans, and the service of recapture thankfully acknowledged. Upon the breaking out of the present war, an expectation was entertained that the French courts of admiralty would revert to the genuine principles of maritime law, and, therefore, this court did not give salvage on the recapture of American property. But if this expectation was cherished for a short time, it soon became notorious that the French government had long since rendered it abortive. France has fulminated her decrees against the commerce of the whole world, and has even compelled this country, defensively, to have resort to measures, which abstractedly and originally, would be unjust in the highest degree. In the present case, the ground assigned by the captor for the claim of salvage is, that there are no certificates of origin on board this vessel, and much discussion has taken place upon the question, whether or not this requisition was confined to [* 256 ] ships navigating to the ports of France. Certainly, looking to the terms of the original decree, it would seem that it was so confined; but it has been understood in practice to apply to all commerce, and it is clear that it has been so understood by America herself, for many ships of that country have been brought in, on board of which these certificates have been found, though they were destined

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to neutral ports. In the exposition which this country gives of the French decrees in its orders in council, it is evident that his Majesty's government is persuaded that they are invariably required, whatever be the ports to which they may be destined. Amidst the fluctuating and capricious practice of the prize courts of France, it is difficult to say, with any degree of confidence, whether the requisition extends to vessels destined to neutral ports, or whether it is confined to vessels coming to French ports. It is objected to the captors, however, that the onus lies on them to adduce positive evidence that such a rule has obtained universally in the French courts, notwithstanding the restricted terms of the decree; and I admit that this demand is not unreasonable. There are, however, two cases in which the captor may so far discharge himself as to throw the burden of proof on the other side: the first is, where he has produced strong analogical proof on which the court may venture to found a reasonable presumption that no such rule obtains; secondly, where he has produced a certain degree of proof, and where no proof is adduced by the claimants in opposition to it, they having it in their power to produce direct evidence in opposition, if the facts would enable them so to do, as they

possess greater facilities of information. In such cases, the [*257 ] court is bound to say that the captors have satisfied *the requisitions of the law, and that there is that moral probability which will justify the conclusion. I think the observation of Dr. Lushington correct, that I am not to consider what would have been the fate of this ship if she had reached Tonningen, but what would have been her fate if the enemy had carried her into a French port. From the import of the decrees themselves, I think it appears to be the policy of France to require that her allies shall exercise the same measure of hostility against the common enemy as she herself does. That, indeed, is a general principle of the law of war; this country adopts the same policy, and confiscates the property of allies trading with the enemy without a license from their own government, just as it does British property in like circumstances; and France certainly has never been behindhand in her expectations of this reciprocal assistance from her allies. She has gone the length of considering the ports of her allies as being no less subservient to the purposes of these French regulations than her own ports; and those allies seem to have evinced a weak, unprincipled submission in this, as in every other instance. What is the language of the Neapolitan papers1 which are now before the court? A number of American

1 See Appendix for papers invoked in the case of The Galen v. Bowden.

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ships had arrived at Naples upon the faith of a decree issued by that government, assuring them of the liberty of disposing of their cargoes in that port, on the condition of exporting the produce of that kingdom; they were immediately seized by the French and Neapolitan ships of war, and were afterwards confiscated. The American consul remonstrated; and the Neapolitan minister for foreign affairs, in his answer, says: "The king has not seen without sorrow the small conformity which is found between the representations made in the remonstrance, and the principles adopted by the [* 258 ] government of the United States, and manifested in its resolutions, contained in the act of the 1st of March last year, against the commerce of France, and the States attached to the political system of the French empire." Here, then, the French empire, and the nations attached to the political system of France, are completely identified; the ships which were seized at Naples, were proceeded against at Paris, which could be upon no other ground, than that France considers the ports of her allies as subject to the same degree of injurious restriction as her own. If that is the case, and if this is the manner in which France dictates the law of war to her allies, respecting the conduct which they are to observe towards the common enemy, though I cannot take upon myself to say absolutely that the absence of a certificate of origin in these cases would have led to condemnation, because the conduct of the courts of France, acting under the direction of the government, is so irregular as to leave no certain ground of conjecture as to the application of almost any principles whatever, yet I may safely venture to assert, that no man can suppose that the want of such a document would not be highly dangerous. I observe that the American consul at Hamburg considers these decrees as applying universally; he says in his letter addressed to the masters of the American ships bound to Hamburg, "In the present unprecedented crisis, such great and almost daily changes take place, and the measures of the belligerents affecting commerce are put into such immediate operation, that it is impossible for the most prudent to avoid the injuries which, on every side, lie in wait for fair neutral trade." Now, this is an observation which cannot be intended to apply to the regulations of this [*259 ] country; because, be their operation what it may, the fact is notorious, that proper time is always allowed to put neutral merchants on their guard. But he goes on to say, that "the French custom-house officers, or douaniers, without any official intimation to the foreign agents here, have some time since, in virtue of an imperial decree, applied the commercial regulations and laws of France to the trade of this city, and without any exceptions, require certificates of 16

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