Talbot

for salvage, was reversed, and a decree rendered, diSeeman. recting the restoration of the vessel without salvage.

V.

27

* 28

*The facts agreed by the parties, and the pleadings in the cause, present the following case:

The ship Amelia sailed from Calcutta, in Bengal, in April, 1799, loaded with a cargo of the product and manufactory of that country, and was bound to Hamburgh. On the 6th September, she was captured by the French national corvette La Diligente, commanded by L. J. Dubois, who took out the captain, part of the and most of the papers of the Amelia, and, putting a prizemaster and French sailors on board her, ordered her to St. Domingo, to be judged according to the laws of war.

crew,

On the 15th of September, she was recaptured by Captain Talbot, commander of the Constitution, who ordered her into New-York for adjudication.

At the time of the recapture, the Amelia had eight iron cannon, and eight wooden guns, with which she left Calcutta. From the ship's papers, and other testimony, it appeared that she was the property of Chapeau Rouge, a citizen and merchant of Hamburgh; and it was conceded by the counsel below, that France and Hamburgh were not in a state of hostility with each other, and that Hamburgh was to be considered as neutral between the present belligerent powers.

The district court of New-York, before whom the cause first came, decreed one half of the gross amount of the ship and cargo as salvage to the recaptors. The circuit court of New-York reversed this decree, from which reversal, the recaptors appealed to this

court.

The Amelia was libelled as a French vessel, and the libellant prays that she may be condemned as prize; or, if restored to any person entitled to her as the former owner, that such restoration should be made on paying salvage. The claim and answer of Hans Frederic Seeman, discloses the neutral character of the vessel, and claims her on behalf of the owners.

The questions growing out of the facts, and to be decided by the court, are,

*Is Captain Talbot, the plaintiff in error, entitled to any, and if to any, to what salvage in the case which has been stated?

Salvage is a compensation for actual service rendered to the property charged with it.

It is demandable of right for vessels saved from pirates, or from the enemy.

In order, however, to support the demand, two cir

cumstances must concur.

1. The taking must be lawful.

2. There must be a meritorious service rendered to the recaptured.

1. The taking must be lawful; for no claim can be maintained in a court of justice, founded on an act in itself tortious. On a recapture, therefore, made by a neutral power, no claim for salvage can arise, because the act of retaking is a hostile act, not justified by the situation of the nation to which the vessel making the recapture belongs, in relation to that from the possession of which such recaptured vessel was taken. The degree of service rendered the rescued vessel is precisely the same as if it had been rendered by a belligerent; yet the rights accruing to the recaptor are not the same, because no right can accrue from an act in itself unlawful.

In order, then, to decide on the right of Captain Talbot, it becomes necessary to examine the relative situation of the United States and France at the date of the recapture.

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.

*To determine the real situation of America in regard to France, the acts of congress are to be inspect

ed.

The first act on this subject passed on the 28th of May, 1798, and is entitled "An act more effectually to protect the commerce and coasts of the United States."

This act authorizes any armed vessel of the United States to capture any armed vessel sailing under the

Talbot

V.

Seeman.

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: Talbot.

V.

Seeman.

* 30

authority, or pretence of authority, of the republic of France, which shall have committed depredations on vessels belonging to the citizens of the United States, or which shall be found hovering on the coasts for the purpose of committing such depredations. It also authorizes the recapture of vessels belonging to the citizens of the United States.

On the 25th of June, 1798, an act was passed "to authorize the defence of the merchant vessels of the United States against French depredations."

This act empowers merchant vessels, owned wholly by citizens of the United States, to defend themselves against any attack which may be made on them by the commander or crew of any armed vessel sailing under French colours, or acting, or pretending to act, by or under the authority of the French republic; and to capture any such vessel. This act also authorizes the recapture of merchant vessels belonging to the citizens of the United States. By the 2d section, such armed vessel is to be brought in and condemned for the use of the owners and captors.

By the same section, recaptured vessels belonging to the citizens of the United States, are to be restored, they paying for salvage not less than one eighth nor more than one half of the true value of such vessel and cargo.

On the 28th of June, an act passed "in addition to the act more effectually to protect the commerce and coasts of the United States."

This authorizes the condemnation of vessels brought in under the first act, with their cargoes, excepting only from such condemnation the goods of any citizen or person *resident within the United States, which shall have been before taken by the crew of such captured vessel.

The second section provides that whenever any vessel or goods, the property of any citizen of the United States or person resident therein, shall be recaptured, the same shall be restored, he paying for salvage oné eighth part of the value, free from all deductions.

On the 9th of July another law was enacted, "further to protect the commerce of the United States." This act authorizes the public armed vessels of the United States to take any armed French vessel found on the high seas. It also directs such armed vessel,

with her apparel, guns, &c. and the goods and effects found on board, being French property, to be condemned as forfeited.

The same power of capture is extended to private armed vessels.

The 6th section provides, that the vessel or goods of any citizen of the United States, or person residing therein, shall be restored, on paying for salvage not less than one eighth, nor more than one half, of the value of such recapture, without any deduction.

The 7th section of the act for the government of the navy, passed the 2d of March, 1799, enacts, "That for the ships or goods belonging to the citizens of the United States, or to the citizens or subjects of any nation in amity with the United States, if retaken within twenty-four hours, the owners are to allow one eighth part of the whole value for salvage," and if they have remained above ninety-six hours in possession of the enemy, one half is to be allowed.

On the 3d of March, 1800, congress passed " An act providing for salvage in cases of recapture."

This law regulates the salvage to be paid "when any vesels or goods, which shall be taken as prize as aforesaid, shall appear to have before belonged to any person or persons *permanently resident within the territory, and under the protection, of any foreign prince, government or state, in amity with the United States, and to have been taken by an enemy of the United States, or by authority, or pretence of authority, from any prince, government, or state, against which the United States have authorized, or shall authorize, defence or reprisals."

These are the laws of the United States, which define their situation in regard to France, and which regulate salvage to accrue on recaptures made in consequence of that situation.

A neutral armed vessel which has been captured, and which is commanded and manned by Frenchmen, whether found cruising on the high seas, or sailing directly for a French port, does not come within the description of those which the laws authorize an American ship of war to capture, unless she be considered quoad hoc as a French vessel.

Talbot

V.

Seeman.

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Talbot

V.

Seeman.

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Very little doubt can be entertained but that a vessel thus circumstanced, encountering an American unarmed merchantman, or one which should be armed, but of inferior force, would as readily capture such merchantman as if she had sailed immediately from the ports of France. One direct and declared object of the war, then, which was the protection of the American commerce, would as certainly require the capture of such a vessel as of others more determinately specified. But the rights of a neutral vessel, which the government of the United States cannot be considered as having disregarded, here intervene; and the vessel certainly is not,.correctly speaking, a French vessel.

If the Amelia was not, on the 15th of September, 1799, a French vessel within the description of the act of congress, could her capture be lawful?

It is, I believe, a universal principle, which applies to those engaged in a partial, as well as those engaged in a general war, that where there is probable cause to believe the vessel met with at sea is in the condition of one *liable to capture, it is lawful to take her, and subject her to the examination and adjudication of the

courts.

The Amelia was an armed vessel commanded and manned by Frenchmen. It does not appear that there was evidence on board to ascertain her character. It is not then to be questioned, but that there was probable cause to bring her in for adjudication.

The recapture, then, was lawful.

But it has been insisted that this recapture was only lawful in consequence of the doubtful character of the Amelia, and that no right of salvage can accrue from an act which was founded in mistake, and which is only justified by the difficulty of avoiding error, arising from the doubtful circumstances of the case.

The opinion of the court is, that had the character of the Amelia been completely ascertained by Captain Talbot, yet as she was an armed vessel under French authority, and in a condition to annoy the American commerce, it was his duty to render her incapable of mischief. To have taken out the arms, or the crew, was as little authorized by the construction of the act of congress contended for by the claimants, as to have taken possession of the vessel herself.