Salvage is a compensation for actual services rendered to the
property charged with it, and is demandable of right for vessels
saved from the enemy or from pirates.
There must be a meritorious service rendered, and the taking
must be lawful.
Congress may authorize general hostilities, and in such case the
general laws of war will apply, or partial hostilities, when the
laws of war, so far, as they are applicable, will be in force.
A neutral vessel captured by a French vessel of war and armed
and manned by the captors was liable to capture by the armed
vessels of the United States, under the Act of Congress of 28 May,
1798, but such a vessel, after capture, could not be considered as
a French vessel and liable to condemnation.
When there is probable cause to believe a vessel met with at sea
is in the condition of one liable to capture, it is lawful to take
her for examination and adjudication.
A legislative act founded on a mistaken opinion of what was law
does not change the actual state of the law as to preexisting
It is not required, in order to authorize a claim to salvage,
that the sole view of the recaptor was the saving of the
It is an established principle of the law of nations that a
neutral merchant vessel which shall be recaptured from a
belligerent shall be discharged without salvage, as it is presumed
that she would have been discharged by the tribunals of the
captors. But if the laws and practices of a particular belligerent
subject all neutral vessels captured by her cruisers to
condemnation, the general usage and laws of nations do not
The decrees and laws of France subsequent to the revolution were
such as rendered the condemnation of a neutral captured by her
armed vessels extremely probable, and the recapture of a neutral
from the French captors was a meritorious service, and entitled the
recaptors to salvage.
The laws of foreign nations are not to be noticed by the courts
of other countries unless proved as facts. Those laws, when
promulgated by the executive of the government of the United
States, may be read as authenticated copies of such laws.
It is to be presumed that the courts of every country will
regard their own laws and that their judicial decisions will
conform to them.
A violation of the laws of nations by one country does not
justify their violation by another; but if, after remonstrance
against injuries committed by one nation to another and redress
refused or withheld, hostilities are authorized, this is in
conformity with the laws of nations.
The hostilities between the United States and France having
authorized the recapture of a neutral vessel, the claim for salvage
will depend upon the services rendered to the recaptured
A mere speculative danger will not be sufficient to authorize a
claim to salvage. It is not necessary that the danger be such as
that escape from it by any other means was inevitable, but the
peril must be imminent.
The laws of the United States ought not to be construed, if it
can be avoided, so as to infract the common principles and usages
of nations or the general doctrines of national law.
Salvage will be apportioned on a just estimate of the damages
from which the vessel was recaptured and of the risk attending the
Page 5 U. S. 2
This was a libel for salvage filed in the District Court of New
York, by Silas Talbot, Esq., for himself and the officers and crew
of the Constitution,
a vessel of the United States,
against the ship Amelia,
the property of merchant citizens
of Hamburgh, she having been recaptured on the high seas by the
on 15 September, 1799, after her capture on 6
September by a French corvette while on her voyage from Calcutta to
Hamburgh. The captors placed a prize master and men on board of the
and ordered her to St. Domingo. On her recapture by
captain Talbot, she was sent to New York. The district court
allowed salvage to the libellants, and the circuit court reversed
the decree. The case came up by writ of error to the circuit court
on the part of the libellants.
For the respondents the points made were
1. That captain Talbot had no right to interfere with the
she being a neutral vessel and not liable to
condemnation by the laws of nations.
2. That salvage is only due when a benefit has been conferred,
and here none was received.
3. That salvage imports a lawful consideration.
4. That to support it, there must be a consideration express or
For the libellants it was claimed
1. That the Amelia,
under the circumstances in which
she was met by the Constitution,
was liable to
2. That the libellants saved the property from condemnation in
the courts of France.
3. That by the laws of nations and the provisions of the act of
Congress, the recaptors were entitled to salvage.
Page 5 U. S. 26
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
This was a writ of error to a decree of the Circuit Court for
the District of New York by which the decree of the district court
of that state restoring the ship Amelia
to her owner on
payment of one-half for salvage, was reversed and a decree rendered
directing the restoration of the vessel without salvage.
Page 5 U. S. 27
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 manufacture of
that country, and was bound to Hamburgh. On 6 September, she was
captured by the French national corvette La Diligente,
commanded by L. J. Dubois, who took out the captain, part of the
crew, and most of the papers of the Amelia,
and putting a
prize master and French sailors on board her, ordered her to St.
Domingo to be judged according to the laws of war.
On 15 September she was recaptured by captain Talbot, commander
of the Constitution,
who ordered her into New York for
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
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
was libeled 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 Frederick Seeman discloses the neutral character of the
vessel and claims her on behalf of the owners.
The questions growing out of these facts and to be decided by
the Court are:
Page 5 U. S. 28
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
In order, however, to support the demand, two circumstances must
1. The taking must be lawful.
2. There must be a meritorious service rendered to the
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
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.
Page 5 U. S. 29
To determine the real situation of America in regard to France,
the acts of Congress are to be inspected.
The first act on this subject passed on 28 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 authority or pretense 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
On 25 June 1798, an act was passed "to authorize the defense of
the merchant vessels of the United States against French
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 colors 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 second
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 28 June, an act passed "in addition to the act more
effectually to protect the commerce and coasts of the United
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
Page 5 U. S. 30
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 one-eighth part of the value free from all
On 9 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
The sixth 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
The seventh section of the act for the government of the navy,
passed 2 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
and if they have remained above ninety-six hours in possession
of the enemy, one-half is to be allowed.
On 3 March, 1800, Congress passed "An act providing for salvage
in cases of recapture."
This law regulates the salvage to be paid
"when any vessels or goods which shall be taken as prize as
aforesaid shall appear to have before belonged to any person or
Page 5 U. S. 31
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 pretense of authority from any
prince, government, or state against which the United States have
authorized, or shall authorize defense 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 as
American ship of war to capture unless she be considered quoad
as a French vessel.
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 15 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
Page 5 U. S. 32
liable to capture, it is lawful to take her and subject her to
the examination and adjudication of the courts.
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,
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
The opinion of the Court is that had the character of the
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 of 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
It has, I believe, been practiced in the course of the present
war, and if not, is certainly very practicable, to man a prize and
cruise with her for a considerable time without sending her in for
condemnation. The property of such vessel would not, strictly
speaking, be changed so as to become a French vessel, and yet it
would probably have been a great departure from the real intent of
Congress to have permitted such vessel to cruise unmolested. An
armed ship under these circumstances might have attacked one of the
public vessels of the United States. The acts which have been
recited expressly authorize the capture of such vessel so
commencing hostilities by a private armed ship, but not by one
belonging to the public. To suppose that a capture would in one
case be lawful and in the other unlawful, or to suppose that even
in the limited state of hostilities in which we were placed,
Page 5 U. S. 33
vessels armed and manned by the enemy and equally cruising on
American commerce might the one be lawfully captured while the
other, though an actual assailant, could not, or if captured that
the act could only be justified from the probable cause of capture
furnished by appearances, would be to attribute a capriciousness to
our legislation on the subject of war which can only be proper when
There must, then, be incidents growing out of those acts of
hostility specifically authorized which a fair construction of the
acts will authorize likewise.
This was obviously the sense of Congress.
If, by the laws of Congress on this subject, that body shall
appear to have legislated upon a perfect conviction that the state
of war in which this country was placed was such as to authorize
recaptures generally from the enemy, if one part of the system
should be manifestly founded on this construction of the other
part, it would have considerable weight in rendering certain what
might before have been doubtful.
Upon a critical investigation of the acts of Congress, it will
appear that the right of recapture is expressly given in no single
instance but that of a vessel or goods belonging to a citizen of
the United States.
It will also appear that the quantum of salvage is regulated as
if the right to it existed previous to the regulation.
Although no right of recapture is given in terms for the vessels
and goods belonging to persons residing within the United States
not being citizens, yet an act, passed so early as 28 June, 1798,
declares that vessels and goods of this description, when
recaptured, shall be restored on paying salvage, thereby plainly
indicating that such recapture was sufficiently warranted by law to
be the foundation of a claim for salvage.
If the recapture of vessels of one description, not expressly
authorized by the very terms of the act of Congress,
Page 5 U. S. 34
be yet a rightful act, recognized by Congress as the foundation
for a claim to salvage, which claim Congress proceeds to regulate,
then it would seem that other recaptures from the same enemy are
equally rightful; and where the claim they afford for salvage has
not been regulated by Congress, such claim must be determined by
the principles of general law.
In this situation remained the recaptured vessels of any other
power also at war with France until the Act of 2 March, 1799, which
regulates the salvage demandable from them. Neither by that act nor
by any previous act was a power given in terms to recapture such
vessels. But their recapture was an incident which unavoidably grew
out of the state of war. On the capture of a French vessel, having
with her as a prize the vessel of such a power, the prize was
inevitably recaptured. On the idea that the recapture was lawful
and that it was a foundation on which the right to salvage could
stand, the legislature, in March, 1799, declared what the amount of
that salvage should be.
The expression of this act is by no means explicit. If it
extends to neutrals, then it governs in this case; if otherwise,
the law respecting them continued still longer on the same ground
with the law respecting a belligerent prior to the passage of the
Act of 2 March, 1799. Thus it continued until 3 March, 1800, when
the legislature regulated the salvage to be paid by neutrals
recaptured from a power against which the United States have
authorized defense or reprisals.
This act, having passed subsequent to the recapture of the
can certainly not affect that case as to the
quantity of salvage, or give a right to salvage which did not exist
before. But it manifests, in like manner with the laws already
commented on, the system which Congress considered itself as having
established. This act was passed at a time when no additional
hostility against France could have been contemplated. It was only
designed to keep up the defensive system which had before been
formed and which it was deemed necessary to continue till the
negotiation then pending should have a pacific termination.
Accordingly there is no expression in the act extending
Page 5 U. S. 35
the power of recapture or giving it in the case of neutrals.
This power is supposed to exist as an incident growing out of the
state of war and the right to salvage produced by that power is
regulated in the act.
In case of a recapture subsequent to the act, no doubt could be
entertained but that salvage, according to its terms, would be
demandable. Yet there is not a syllable in it which would warrant
an idea that the right of recapture was extended by it, or did not
It must then have existed from the passage of the laws which
commenced a general resistance to the aggressions we had so long
experienced and submitted to.
It is not unworthy of notice that the first regulation of the
right of salvage in the case of a recapture, not expressly
enumerated among the specified acts of hostility warranted by the
law, is to be found in one of those acts which constitute a part of
the very system of defense determined on by Congress, and is the
first which subjects to condemnation the prizes made by our public
ships of war.
It has not escaped the consideration of the Court that a
legislative act founded on a mistaken opinion of what was law does
not change the actual state of the law as to preexisting cases.
This principle is not shaken by the opinion now given. The court
goes no further than to use the provisions in one of several acts
forming a general system as explanatory of other parts of the same
system, and this appears to be in obedience to the best established
rules of exposition, and to be necessary to a sound construction of
An objection was made to the claim of salvage by one of the
counsel for the defendant in error, unconnected with the acts of
Congress, and which it is proper here to notice.
He states that to give title to salvage, the means used must not
only have produced the benefit, but must have
Page 5 U. S. 36
been used with that sole view. For this he cites Beawes, Lex
The principle is applied by Beawes to the single case of a
vessel saved at sea by throwing overboard a part of her cargo. In
that case, the principle is unquestionably correct, and in the case
of a recapture it is as unquestionably incorrect. The recaptor is
seldom actuated by the sole view of saving the vessel, and in no
case of the sort has the inquiry ever been made.
It is then the opinion of the Court, on a consideration of the
acts of Congress and of the circumstances of the case, that the
recapture of the Amelia
was lawful and that if the claim
to salvage be in other respects well founded, there is nothing to
defeat it in the character of the original taking.
It becomes then necessary to inquire:
2. Whether there has been such a meritorious service rendered to
the recaptured as entitles the recaptor to salvage.
was a neutral ship captured by a French
cruiser and recaptured while on her way to a French port to be
adjudged according to the laws of war.
It is stated to be the settled doctrine of the law of nations
that a neutral vessel captured by a belligerent is to be discharged
without paying salvage, and for this several authorities have been
quoted and many more might certainly be cited. That such has been a
general rule is not to be questioned. As little is it to be
questioned that this rule is founded exclusively on the supposed
safety of the neutral. It is expressly stated in the case of
The War Onskan,
cited from Robinson's Reports to be
founded on this plain principle:
"That the liberation of a clear neutral from the hand of the
enemy is no essential service rendered to him, inasmuch as that the
same enemy would be compelled by the tribunals of his own country,
after he had carried the neutral into port, to release him with
costs and damages for the injurious seizure and detention."
It is not infrequent to consider and speak of a
Page 5 U. S. 37
regular practice under a rule as itself forming a rule. A
regular course of decisions on the text of the law constitutes a
rule of construction by which that text is to be applied to all
similar cases, but alter the text and the rule no longer governs.
So in the case of salvage. The general principle is that salvage is
only payable where a meritorious service has been rendered. In the
application of this principle it has been decided that neutrals
carried in by a belligerent for examination, being in no danger,
receive no benefit from recapture, and ought not therefore to pay
The principle is that without benefit, salvage is not payable,
and it is merely a consequence from this principle which exempts
recaptured neutrals from its payment. But let a nation change its
laws and its practice on this subject, let its legislation be such
as to subject to condemnation all neutrals captured by its
cruisers, and who will say that no benefit is conferred by a
recapture? In such a course of things, the state of the neutral is
completely changed. So far from being safe, he is in as much danger
of condemnation as if captured by his own declared enemy. A series
of decisions then, and of rules founded on his supposed safety, no
longer apply. Only those rules are applicable which regulate a
situation of actual danger. This is not, as it has been termed, a
change of principle, but a preservation of principle by a practical
application of it according to the original substantial good sense
of the rule.
It becomes then necessary to inquire whether the laws of France
were such as to have rendered the condemnation of the
so extremely probable as to create a case of such
real danger that her recapture by captain Talbot must be considered
as a meritorious service entitling him to salvage.
To prove this, the counsel for the plaintiff in error has
offered several decrees of the French government, and especially
one of 18 January, 1798.
Objections have been made to the reading of these decrees as
being the laws of a foreign nation, and therefore facts which, like
other facts, ought to have been
Page 5 U. S. 38
proved and to have formed a part of the case stated for the
consideration of the court.
That the laws of a foreign nation, designed only for the
direction of its own affairs, are not to be noticed by the courts
of other countries unless proved as facts, and that this Court,
with respect to facts, is limited to the statement made in the
court below, cannot be questioned. The real and only question is
whether the public laws of a foreign nation on a subject of common
concern to all nations, promulgated by the governing powers of a
country, can be noticed as law by a court of admiralty of that
country or must be still further proved as a fact.
The negative of this proposition has not been maintained in any
of the authorities which have been adduced. On the contrary,
several have been quoted (and such seems to have been the general
practice) in which the marine ordinances of a foreign nation are
read as law without being proved as fact. It has been said that
this is done by consent; that it is a matter of general convenience
not to put parties to the trouble and expense of proving permanent
and well known laws which it is in their power to prove, and this
opinion is countenanced by the case cited from Douglas. If it be
correct, yet this decree having been promulgated in the United
States as the law of France by the joint act of that department
which is entrusted with foreign intercourse and of that which is
invested with the powers of war, seems to assume a character of
notoriety which renders it admissible in our courts.
It is therefore the opinion of the Court that the decree should
be read as an authenticated copy of a public law of France
interesting to all nations.
The decree ordains that
"The character of vessels relative to their quality of neuter or
enemy shall be determined by their cargo; in consequence, every
vessel found at sea loaded in whole or in part with merchandise the
production of England or her possessions, shall be declared good
prize whoever the owner of these goods or merchandise may be. "
Page 5 U. S. 39
This decree subjects to condemnation in the courts of France a
neutral vessel laden in whole or in part with articles the growth
of England or any of its possessions. A neutral thus circumstanced
cannot be considered as in a state of safety. His recaptor cannot
be said to have rendered him no service. It cannot reasonably be
contended that he would have been discharged in the ports of the
belligerent with costs and damages.
Let us then inquire whether this was the situation of the
. The first fact states her to have sailed from
Calcutta in Bengal in April, 1799, laden with a cargo of the
product and manufacture of that country. Here it is contended that
the whole of Bengal may possibly not be in possession of the
English, and therefore it does not appear that the cargo was within
the description of the decree. But to this it has been answered
that in inquiring whether the Amelia
was in danger or not,
this Court must put itself in the place of a French court of
admiralty, and determine as such court would have determined. Doing
this, there seems to be no reason to doubt that the cargo, without
inquiring into the precise situation of the British power in every
part of Bengal, being prima facie
of the product and
manufacture of a possession of England, would have been so
considered unless the contrary could have been plainly shown.
The next fact relied on by the defendant in error is that the
was sent to be adjudged according to the laws of
war, and from thence it is inferred that she could not have been
judged according to the decree of the 18th of January.
It is to be remembered that these are the orders of the captor,
and without a question, in the language of a French cruiser, a law
of his own country furnishing a rule of conduct in time of war,
will be spoken of as one of the laws of war.
But the third and fourth facts in the statement admit the
with her cargo to have belonged to a citizen of
Hamburgh, which city was not in a state of hostility with the
Republic of France, but was to be considered as neutral between the
then belligerent powers.
Page 5 U. S. 40
It has been contended that these facts not only do not show the
recaptured vessel to have been one on which the decree could
operate, but positively show that the decree could not have
The whole statement taken together amounts to nothing more than
that Hamburgh was a neutral city, and it is precisely against
neutrals that the decree is in terms directed. To prove, therefore,
that the Amelia
was a neutral vessel, is to prove her
within the very words of the decree, and consequently to establish
the reality of her danger.
Among the very elaborate arguments which have been used in this
case, there are some which the Court deems it proper more
particularly to notice.
It has been contended that this decree might have been merely
that it might never have been executed, and
that being in opposition to the law of nations, the Court ought to
presume it never would have been executed.
But the Court cannot presume the laws of any country to have
been enacted in terrorem,
nor that they will be
disregarded by its judicial authority. Their obligation on their
own courts must be considered as complete, and without resorting
either to public notoriety, or the declarations of our own laws on
the subject, the decisions of the French courts must be admitted to
have conformed to the rules prescribed by their government.
It has been contended that France is an independent nation,
entitled to the benefits of the law of nations, and further that if
she has violated them, we ought not to violate them also, but ought
to remonstrate against such misconduct.
These positions have never been controverted, but they lead to a
very different result from that which they have been relied on as
The respect due to France is totally unconnected with the danger
in which her laws had placed the Amelia;
Page 5 U. S. 41
is France in any manner to be affected by the decree this Court
may pronounce. Her interest in the vessel was terminated by the
recapture, which was authorized by the state of hostility then
subsisting between the two nations. From that time it has been a
question only between the Amelia
and the recaptor, with
which France has nothing to do.
It is true that a violation of the law of nations by one power
does not justify its violation by another, but that remonstrance is
the proper course to be pursued, and this is the course which has
been pursued. America did remonstrate, most earnestly remonstrate
to France against the injuries committed on her; but remonstrance
having failed, she appealed to a higher tribunal, and authorized
limited hostilities. This was not violating the law of nations, but
conforming to it. In the course of these limited hostilities, the
has been recaptured, and the inquiry now is not
whether the conduct of France would justify a departure from the
law of nations, but what is the real law in the case. This depends
on the danger from which she has been saved.
Much has been said about the general conduct of France and
England on the seas, and it has been urged that the course of the
latter has been still more injurious than that of the former. This
is a consideration not to be taken up in this cause. Animadversions
on either in the present case would be considered as extremely
unbecoming the Judges of this Court, who have only to inquire what
was the real danger in which the laws of one of the countries
placed the Amelia,
and from which she has been freed by
It has been contended that an illegal commission to take, given
by France, cannot authorize our vessels to retake; that we have no
right by legislation to grant salvage out of the property of a
citizen of Hamburgh, who might have objected to the condition of
But it is not the authority given by the French government to
capture neutrals which is legalizing the recapture made by captain
Talbot; it is the state of hostility between the two nations which
is considered as having authorized that act. The recapture having
been made lawfully, then the right to salvage, on general
Page 5 U. S. 42
on the service rendered. We cannot presume this service to have
been unacceptable to the Hamburgher, because it has bettered his
condition; but a recapture must always be made without consulting
the recaptured. The act is one of the incidents of war, and is in
itself only offensive as against the enemy. The subsequent fate of
the recaptured depends on the service he has received and on other
To give a right to salvage, it is said there must be a contract
either express or implied.
Had Hamburgh been in a state of declared war with France, the
recaptured vessels of that city would be admitted to be liable to
pay salvage. If a contract be necessary, from what circumstances
would the law in that state of things imply it? Clearly from the
benefit received and the risk incurred. If in the actual state of
things there were also benefit and risk, then the same
circumstances concur, and they warrant the same result.
It is also urged that to maintain this right, the danger ought
not to be merely speculative, but must be imminent and the loss
That a mere speculative danger will not be sufficient to entitle
a person to salvage is unquestionably true. But that the danger
must be such that escape from it by other means was inevitable
cannot be admitted.
In all the cases stated by the counsel for the defendant in
error, safety by other means was possible, though not probable. The
flames of a ship on fire might be extinguished by the crew or by a
sudden tempest. A ship on the rocks might possibly be got off by
the aid of wind and tides without assistance from others. A vessel
captured by an enemy might be separated from her captor, and if
sailors had been placed on board the prize, a thousand accidents
might possibly destroy them, or they might even be blown by a storm
into a port of the country to which the prize vessel originally
It cannot, therefore, be necessary that the loss should be
inevitably certain, but it is necessary that the danger should
Page 5 U. S. 43
be real and imminent. It is believed to have been so in this
case. The captured vessel was of such description that the law by
which she was to be tried, condemned her as good prize to the
captor. Her danger then was real and imminent. The service rendered
her was an essential service, and the Court is therefore of opinion
that the recaptor is entitled to salvage.
The next object of inquiry is what salvage ought to be allowed.
The captors claim one-half the gross value of the ship and cargo.
To support this claim they rely on the act "for the government of
the navy of the United States," passed 2 of March, 1799. This act
regulates the salvage payable on the ships and goods belonging to
the citizens of the United States, or to the citizens or subjects
of any nation in amity with the United States retaken from the
It has been contended that the case before the Court is in the
very words of the act. That the owner of the Amelia
citizen of a state in amity with the United States, retaken from
the enemy. That the description would have been more limited had
the intention of the act been to restrain its application to a
recaptured vessel belonging to a nation engaged with the United
States against the same enemy.
The words of the act would certainly admit of this
Against it, it has been urged, and we think with great force,
that the laws of the United States ought not, if it be avoidable,
so to be construed as to infract the common principles and usages
of nations or the general doctrines of national law. If the
construction contended for be given to the act, it subjects to the
same rate of salvage a recaptured neutral and a recaptured
belligerent vessel. Yet according to the law of nations, a neutral
is generally to be restored without salvage.
This argument in the opinion of the Court derives great
additional weight from the consideration that the act in question
is not temporary, but permanent. It is not merely fitted to the
then existing state of things, and
Page 5 U. S. 44
calculated to expire with them, but is a regulation applying to
present and future times.
Whenever the danger resulting to captured neutrals from the laws
of France should cease, then, according to the principles laid down
in this decree, the liability of recaptured neutrals to the payment
of salvage would, in conformity with the general law and usage of
nations, cease also. This event might have happened, and probably
did happen, before hostilities between the United States and France
were terminated by a treaty. Yet if this law applies to the case,
salvage from a recaptured neutral would still be demandable.
This act, then, if the words admit it, since it provides a
permanent rule for the payment of salvage, ought to be construed to
apply only to cases in which salvage is permanently payable.
On inspecting the clause in question, the Court is struck with
the description of those from whom the vessel is to be retaken in
order to come within the provisions of the act. The expression used
is "the enemy." A vessel retaken from the enemy. The enemy of whom?
The Court thinks it not unreasonable to answer of both parties. By
this construction the act of Congress will never violate those
principles which we believe, and which it is our duty to believe,
the legislature of the United States will always hold sacred.
If this act does not comprehend the case, then the Court is to
decide on a just estimate of the danger from which the recaptured
was saved, and of the risk attending the retaking of the vessel,
what is a reasonable salvage. Considering the circumstances and
considering also what rule has been adopted in other courts of
admiralty, one-sixth appears to be a reasonable allowance.
It is therefore the opinion of the Court that the decree of the
Circuit Court held for the District of New York was correct in
reversing the decree of the district court, but not correct in
decreeing the restoration of the Amelia
salvage. This Court therefore is of opinion that the decree, so far
as the restoration of the
Page 5 U. S. 45
without salvage is ordered, ought to be
reversed, and that the Amelia
and her cargo ought to be
restored to the claimant, on paying for salvage one sixth part of
the net value after deducting therefrom the charges which have been