RIGHT OF THE MASTER AND CREW OF A

CAPTURED SHIP TO EFFECT HER RESCUE

A MERCHANT ship captured in war by a cruiser is commonly put in the hands of a prize crew and, often with her own master and crew aboard, directed to proceed to the nearest port of the captor available for adjudication as to prize or no prize.

The cases in which the original master and crew have, during such transit, risen against the prize crew and, by force or fraud or both regained control of the ship are fairly numerous. It is proposed to examine the legality of such a course, and the rights derived therefrom; also the rights in the premises of the belligerent whose possession is displaced.

Bouvier lays down the rule that "Rescue differs from recapture. The rescuers do not by the rescue become owners of the property, as if it had been a new prize, but the property is restored to the original owners by the right of post liminium." 1

In the first place, it must be observed, that on the capture of a neutral vessel no title whatever is divested and none passes to the captor, until adjudication. In the meantime possession got by force may be kept by force and likewise may be displaced by force. If it is so displaced by the original master and crew, it is not a recapture but a rescue, and the original title is merely freed from the forcible possession of the enemy and exists unencumbered as before capture. As soon as the ship reaches a port in her own sovereignty, liability to any penalty for such rescue ceases, and if captured on a subsequent voyage, she cannot be condemned for the former transaction. The lien of the captor, as it were, is destroyed when possession ceases. No adjudication is necessary to restore the title of the original owner, which has never ceased to exist. It was encumbered by the enemy's possession; that being ended, the title resumes its freedom and exists as before capture.

1 Bouvier's Law Dictionary, title, "Rescue in Maritime Law."

The act of the master and crew in rescuing their ship is not one covered by their contract of service. It is beyond such agreed labors and responsibilities. A mariner is bound to aid in saving his ship from marine disaster and, therefore, he has no salvage for such service, which is fully rewarded by his wage. On the other hand, the rescue, being beyond his employment, is held good ground for salvage. Since neither salvage nor other reward is given by a court of justice for immoral or unlawful acts, such awards of salvage are the highest evidence that such rescues are, so far at least as the law of the court awarding the salvage is concerned, neither immoral nor unlawful acts. They have been frequently termed, in the opinion of eminent judges "highly meritorious acts."

On a claim for salvage against an American ship taken by the French while bound from Philadelphia to London and rescued by her crew, the English court took jurisdiction because certain of the rescuing crew were British subjects and claimed salvage. Sir W. Scott (p. 277) says:

For although it is meritorious to rescue by force of arms from an enemy, it is quite the reverse to rescue from a neutral, from whom the owner would have a right to claim costs and damages for an unjust seizure and detention. If instead of this a rescue by force is attempted, and the party takes the law into his own hands, it becomes a breach of the law of nations, which would endanger the ship and cargo if that attempt should be disappointed.

He holds the French enemies to America and then holds that every person assisting in rescue has a lien on the thing saved. He holds the acts of the master and crew as to the rescue were

no part of their general duty as seamen; they were not bound by their general duty as mariners to attempt a rescue; nor would they have been guilty of a desertion of their duty, in that capacity, if they had declined it. It is a meritorious act to join in such attempts; and if there are persons who entertain any doubts whether it ought to be so regarded I desire not to be considered as one of the persons who entertain any such doubts. But it is an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship in discharge of any official duty, either ordinary or extraordinary.2

2 The Two Friends, McDougal master, 1 C. Robinson, 271.

Two years later, in 1801, the same eminent judge decided the celebrated case of The Beaver, Conner master. This was a case of a British merchant ship taken with a cargo of wine, in sight of the English coast, by a French privateer, when all the crew, except the master and one boy, had been taken out. The master, seeing an opportunity, rose upon five Frenchmen that had been put on board and by knocking down the prize master and possessing himself of his pistols, the only fire arms on board, succeeded in driving the rest of the crew down below, and gained possession of the vessel. After steering some time toward the English coast, the ship was nearly lost in a storm. The master got twelve men from a British frigate, which came in sight, and kept possession. Finally, thinking the ship must be lost, all returned to the frigate. Later, the storm abating, the master returned to his ship and, with the help of a boat crew from the frigate, brought her to port. Sir W. Scott held this "a case of very peculiar merit on the part of the original salvors, the master and the boy, by whose distinguished gallantry the property was rescued out of the hands of the enemy." He says further of the master: "He is the person whose service must stand highest in the estimation of the court; and I do not recollect to have seen any case of salvage in which personal merit of that species presented itself more strongly for encouragement and reward. On this part of the case I shall decree at least the usual salvage of a sixth."

He held the King's ship bound to give assistance as well against the elements as against the enemy. Further he said: "The value of the property saved is about £6239,- I shall give a sixth of that sum, or £1000 to the master and boy, in this proportion, £850 to the master and £150 to the boy; who, I observe, is described as his apprentice and rather above the condition of a common seaboy without articles." He allows half as much only to the King's ship and put the costs on the owners. The reward to the courageous master and the sturdy boy must gratify every reader, even yet, after one hundred and sixteen years have passed.

This was a case where the tribunal was that of one of the belligerents and the ship rescued was of that nation, therefore of belligerent ownership.

33 C. Robinson, 292; Scott's Cases Intern. L. p. 653.

The attorney general of the United States held a very similar doctrine, as we shall see, as to an American ship, which was neutral, but which was captured for breach of the pacific blockade of Mexican ports, and, before adjudication, rescued by her master. His conclusions, however, are based on the lack of power or duty on the part of neutrals to enforce belligerent rights which have not yet been consummated so as to change the title. The case was as follows:

The vessel, Loue, Captain Clark, had entered the port of Matamoras and sailed thence for New Orleans, its port of final destination. On this homeward voyage the ship was captured by a French ship of a squadron blockading the port of Matamoras. Some days after capture, but before condemnation, Captain Clark rescued his ship and brought her safely to New Orleans. The French Government demanded that she be surrendered to it on account of breach of blockade and such rescue. The Attorney General held that if it were admitted that a breach of blockade had occurred and a rescue, each of which was good cause for condemnation, "still it is a principle equally well established and recognized that the offense thus incurred never travels on with the vessel further than the end of the return voyage. If captured or recaptured in any part of that voyage, she is taken in delicto, and liable to be condemned; but if she terminates the entire voyage in safety, that liability has entirely ceased; nor can the captors demand her condemnation, much less her delivery to them." Also that by international law "capture transfers no property in the vessel and cargo to the captors" till condemnation. Therefore, whatever may be thought of the conduct of Captain Clark in entering the port of Matamoras and the subsequent rescue, the captors have no rights of property in the vessel and have lost all right to cause her to be condemned.

The opinion holds that by well settled principles of international law "it is made the duty of the captors to place an adequate force upon the captured vessel; and if from a mistaken reliance on the sufficiency of their force, or misplaced confidence, they fail to do so, the omission is at their own peril. No instance is known in which it has been regarded as a ground for asking such interposition as is now sought."

See "Breach of Blockade Capture Rescue," opinion of Hon. Felix Grundy, Attorney General, Oct. 11, 1838, 3 Opinions Atty. Genl. 377.

The blockade in question was a "peaceful blockade" but, in the absence of precedents as to such blockade, the Attorney General based his opinion on the principles applicable "to ordinary blockades in time of war." Further the Attorney General held that the executive could not order such property of an American subject in the possession of the owner surrendered to a foreign government; that if there were any remedy open to the captor it was by judicial and not executive action.

The master and crew, it seems, are under no obligation to assist the prize crew in navigating the ship and if they refuse to assist and the prize crew, being inadequate, leave to the original master and crew the control of the ship and the latter turn her towards her own port, no penalty seems to attach. Thus in The Pennsylvania, M. Pherson, Master, an American merchant ship from Trieste to Canton was captured by two British cruisers in the Mediterranean and three persons put on board. They were unable to navigate the ship, and the captain continued to direct her course according to the direction of the owners, refusing to carry her into Malta for adjudication, as required by the prize master. Just after passing Malta she was boarded by a third privateer and taken into Malta and condemned as having been rescued from the original captain.

Sir W. Grant held, as to the duty of the master and crew to navigate the ship to such port as the prize master directs at the peril of confiscation:

We cannot see that any such duty is imposed on the master and crew. They owe no service to the captors and are still to be considered answerable to the owners for their conduct. It is the duty as well as the interest of the captors to make the capture sure; if they neglect it from any anxiety to make other captures or thinking the force already furnished sufficient, it is exclusively at their own peril. In this case the captain performs a duty he conceives he owes to the owners. He will not act against their interest, nor will he attempt to prosecute their interest by any violence on his part or that of his crew. Neither he nor they are bound to make resistance. The captors, therefore, are left to pursue their separate interests; they are unable to navigate the vessel and the captain resumes his command.

The decree of condemnation was reversed and the vessel was ordered restored.

• Acton's Report, Vol. 1, p. 34, High Court of Appeals, 1809.