Compensation has been refused the owners, where the master had made a valid contract to perform the service.1 And only a

remuneration for wear and tear was allowed where the service was performed by boats from the shore.2

Compensation was entirely refused to the owners where the vessel was abandoned at sea, and the crew in the boats fell in with another vessel which was also abandoned, and which they saved. If a vessel is met with short-handed at sea, and assistance is rendered by sending some men on board, this is a salvage service, as we have seen, but yet one for which the owners of the vessel rendering assistance, are entitled to some compensation, but not to a great one unless the assistance thus rendered materially weakened their own vessel. If the vessel is engaged in a lucrative employment at the time of rendering a salvage service, this of course is an essential ingredient in estimating the compensation to be awarded to the owners; but if not actually engaged, it has been held that no allowance is to be made for what she might have earned.5

Even if actually engaged at the time, if the vessel to which the service is rendered is not then in imminent danger, it is said that no compensation is to be made for any loss of profits unless the master of the vessel saved is informed at the time of

the nature of the employment in which the salvor is engaged."

The master has, perhaps commonly in our courts, about twice as much as the mate; but here, and still more as to the seamen, it can hardly be said that there is a rule. The share of an apprentice

perform a salvage service are entitled to a liberal compensation. One half of the amount decreed was allowed in The Howard, cited 3 Hagg. Adm. 256, and in The Earl Grey, 3 Hagg. Adm. 363; and in The Beulah, 1 W. Rob. 477, over four fifths were allowed. In The Spirit of the Age, 1 Swabey, Adm. 286, the court allowed the damage done to the vessel and a reasonable sum for the loss of services to be deducted before division, and then allowed the owners one half of the moiety, remarking that after such deductions more than a moiety was never allowed.

1 The Mulgrave, 2 Hagg. Adm. 77.

2 The Charlotte, 3 W. Rob. 68. But in The Norden, 1 Spinks, Adm. 185, it was held that owners of fishing smacks were entitled to salvage, although the service was of short duration and not dangerous.

3 The Two Friends, 2 W. Rob. 349.

4 Williamson v. The Brig Alphonso, 1 Curtis, C. C. 376, 380. And see cases cited ante, p. 613, n. 8.

5 The Louisa, 3 W. Rob. 99.

The Nicolai Heinrich, 22 Eng. L. & Eq. 615; The Hedwig, 1 Spinks, Adm. 19.

is given to him and not to his master, and an agreement to the contrary would be void;2 and slaves, it would seem, are entitled to salvage for their own use.3 If some of the salvors decline or refuse to claim salvage, this will not enure to the benefit of the co-salvors, but to the benefit of the owners of the property.1

SECTION VII.

ON WHAT PROPERTY SALVAGE IS ALLOWED.

Salvage is generally decreed on all the property saved, whether ship, cargo, or freight. It is allowed on public property, and

1 Mason v. Ship Blaireau, 2 Cranch, 240; The Two Friends, 2 W. Rob. 349; The Columbine, 2 W. Rob. 186. In this last case additional compensation was made to the owners of the vessel, on the ground that although the owner was not entitled to receive the whole benefit of the apprentice's services, yet that to a certain extent the owner was entitled to derive benefit from it. But the language used by the learned judge in the subsequent case of The Two Friends, is not consistent with the master's claim in any

case..

2 The Columbine, 2 W. Rob. 186.

3 In Small v. Goods, etc., 2 Pet. Adm. 284, 287, salvage was decreed to slaves for their own use. But in Mason v. Ship Blaireau, 2 Cranch, 240, it was adjudged to the master, he having-agreed to manumit the slave and to pay him one fifth of the sum allowed.

Evans v. Ship Charles, 1 Newb. Adm. 329.

5 Where a salvage service is concluded at one port and the cargo is taken to another and sold, the value at the former port is to be taken. The George Dean, 1 Swabey, Adm. 290. The cargo in this case was sent on from Lisbon to London, it being represented that it could not be sold at Lisbon. The court said: "I imagine the strict method to arrive at the value of the cargo at Lisbon would be, not on any assertion of its being unsalable there, but by putting it at 71. and 81. per cent. less than the proceeds of its sale in London, deducting freight and other charges for the voyage from Lisbon to London, but allowing a pro rata freight as far as Lisbon." When the cargo is saved, suit should be brought against it as well as the ship, as the proper mode of apportioning the salvage is to take the value of both, and if the value of the cargo does not appear, the court will not be able without much difficulty to apportion the salvage, The Mary Pleasants, 1 Swabey, Adm. 224.

6 In The Peace, 1 Swabey, Adm. 85, where an action was entered against the vessel and her freight, but as the cargo had been delivered, only the vessel was arrested, and bail was given for both ship and freight, the court held that the owners of the vessel were bound to bring in an account of freight on oath, and to set forth when, and the names of the parties by whom, such freight had been paid.

all goods of the government pay the same rate as if they were owned by individuals.1 But there is an exception to this rule in favor of the mails,2 and perhaps in the case of a ship of war belonging to our own government.3 And it has been determined in this country, that vessels of war belonging to a foreign neutral power cannot be arrested in our ports into which they have lawfully come.+

The same is true of a private armed vessel sailing under a commission from a foreign government. But the general rule is that our courts have jurisdiction over all property to whomsoever it belongs, which comes within their territorial jurisdiction; and though an exception is made in favor of an armed vessel, and her munitions of war, yet the private property of a foreign sovereign, or the prize property which a vessel of war brings into our ports comes within the general rule and not within the exception.

We should therefore say that where the court could take jurisdiction it would enforce a salvage claim but not otherwise. Salvage is not however allowed on the clothing left by the master and crew on board of the vessel, which they abandon, but this should be returned, free of charge. Nor on money found on the person of a drowned man.9 Nor, it is said, for saving from a wreck, bills of exchange, or other evidences of debt or documents of title.10 It has also been held, that admiralty will not allow, in a suit for salvage, charges made by the salvors for

1 The Lord Nelson, Edw. Adm. 79; The Marquis of Huntly, 3 Hagg. Adm. 246. The law is the same in general average. See ante, Vol. I. p. 324, n. 2.

2 Sch. Merchant, cited in Marvin on Salvage, 132.

3 This was so held in England in 1816, in the case of The Comus, cited 2 Dods. 464.

4 The Sch. Exchange v. M'Faddon, 7 Cranch, 116.

5 L'Invincible, 1 Wheat. 238.

6 The Santissima Trinidad, 7 Wheat. 283.

7 In The Prins Frederik, 2 Dods. 451, this question was discussed at length, but no decision was given, as the foreign government afterwards consented that the judge of the admiralty court might determine the amount of salvage due.

s The Rising Sun, Ware, 378.

The Amethyst, Daveis, 20, 29. The expense of his interment was, however,. allowed out of this money.

repairs; but this we should think could not always be true, when these repairs were necessary, and properly made.1

The rights of co-shippers are sometimes quite distinct. The goods of each shipper paying the salvage decreed for saving his goods only, if there be any difference in the facts, circumstances or merits attending the saving of different parcels of the cargo.2 But it would seem that no difference is to be made between the

ship and cargo. The value of the one is to be added to the value of the other and a proportion of this amount is to be given.3

SECTION VIII.

OF THE MANNER IN WHICH A CLAIM FOR SALVAGE MAY BE BARRED.

If assistance is rendered to a vessel under circumstances which would generally constitute it a salvage service, it may yet not be such; as where the service is rendered under a custom to give assistance gratuitously in similar instances, or where the aid is given under a special contract. And even after the right of action has accrued it may be lost by misconduct or by a lapse of time. We shall consider these in their order.

If two vessels sail as consorts and under an agreement to assist each other, neither can claim salvage for assistance rendered to the other. It has been questioned, whether if two ships be owned by one owner or by the same parties, and one of them relieves the other in distress, the relieving ship can claim salvage.5 And it has been held if a vessel, owned by the person to whom another vessel is chartered renders assistance to that vessel, and both vessels are under the control of the owner of the saving

1 The Rainger, 2 Hagg. Adm. 42. This decision seems to have proceeded on the ground that the admiralty had no jurisdiction over a shipwright's bill.

2 See The Samuel, 4 Eng. L. & Eq. 581; Stephens v. Bales of Cotton, Bee, Adm. 170. 8 The Vesta, 2 Hagg. Adm. 189; Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421.

The Zephyr, 2 Hagg. Adm. 43.

5 The Margaret, 2 Hagg. Adm. 48, note.

vessel, he appointing the officers and crew, that no salvage is due, the crews of both vessels being considered as his servants.1

The East India Company have been held to pay salvage to a ship which they had chartered and employed, for the salvage services rendered to another ship which was their property. The officers and crew of the chartered ship being appointed by its owner,2 and not by the East India Company.

It has been questioned whether a custom to render assistance might not be such and so proved as to bar a claim for salvage. We should say that even where vessels sailing together are not consorts nor owned by the same party, it is possible that there may be a usage of mutual help, which would defeat a claim of salvage, and under such circumstances such a claim would be materially diminished, even if no usage were proved. Thus it is said that if a steamer be stranded on a sand bank in the Mississippi, and another steamer draws her off, usage prohibits any claim for salvage.5

But a custom of one port that vessels shall assist each other gratuitously is not binding on vessels of other ports rendering assistance to vessels of the port where the custom exists. And we should doubt whether a custom that steamers should aid sailing vessels, and vice versa, would be good, there being no mutuality between the two classes of vessels.7

If at the time of the service the salvors make a bargain with the owners of the property in peril, or their servants, as to the

1 The Maria Jane, 1 Eng. L. & Eq. 658.

2 The Waterloo, 2 Dods. 433.

* The Harriot, 1 W. Rob. 439. This was a case of salvage in the South Sea, rendered by one whaling vessel to another. The service was not denied, but the respondents contended that a custom existed in the South Sea Fishery for vessels to render assistance to each other gratuitously. Such a custom being proved to exist, Dr. Lushington held that it was legal. But such a usage does not apply to the case of a whaling vessel being frozen up in Davis' Straits, and another whaling vessel sailing from England for the purpose of rescuing her. But in such a case, government bounty having been granted for the rescue of the vessel, the claim of the salvors for demurrage and the payment of stores was not allowed by the court. The Swan, 1 W. Rob. 68.

4 The Ganges, 1 Notes of Cases, 87; The Trelawney, 4 Rob. Adm. 223, 227; The Waterloo, 2 Dods. 433, 443. But see Williamson v. The Brig Alphonso, 1 Curtis, C. C. 376.

5 Montgomery v. Steamboat T. P. Leathers, 1 Newb. Adm. 421, 429. The Red Rover, 3 W. Rob. 150.

7 See The Africa, 1 Spinks, Adm. 299.