THE STAR, 16 U. S. 78 (1818)

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U.S. Supreme Court

The Star, 16 U.S. 3 Wheat. 78 78 (1818)

The Star

16 U.S. (3 Wheat.) 78




An American vessel was captured by the enemy, and after condemnation and sale to a subject of the enemy, was recaptured by an American privateer. Held that the original owner was not entitled to restitution on payment of salvage under the Salvage Act of 3 March, 1800, ch. 14, and the Prize Act of 26 June, 1812, ch. 107.

By the general maritime law, a sentence of condemnation completely extinguishes the title of the original proprietor.

By the British statute of 13 George II, ch. 4, the jus postliminii is reserved to British subjects upon all recaptures of their vessels and goods by British ships, even though they have been previously condemned, except where such vessels, after capture, have been set forth as ships of war.

The statute of the 43d George III, ch. 160, s. 39, has no further altered the previous British laws than to fix the salvage at uniform stipulated rates, instead of leaving it to depend upon the length of time the recaptured ship was in the hands of the enemy.

Neither of these statutes extends to neutral property.

The fifth section of the Prize Act of 26 June 1812, ch. 107, does not repeal any of the provisions of the Salvage Act of 3 of March 1800, ch. 14, but is merely affirmative of the preexisting law.

By the law of this country, the rule of reciprocity prevails upon the recapture of the property of friends.

The law of France denying restitution upon salvage after twenty-four hours possession by the enemy, the property of persons domiciled in France is condemned as prize by our courts on recapture, after being in possession of the enemy that length of time.

Page 16 U. S. 79

It appeared by the libel, claim, evidence, and admissions of the parties in this cause that the ship Star was captured by the American privateer Surprise on the high seas on 27 January, 1815. That the ship Star was then on a voyage from the British East Indies to London. That she was under the British flag, had British papers as a trading vessel, and a license from the British East India Company, and that her ostensible owners were British subjects residing in London. It further appeared that previously to the late war, and till and at the time of the capture and condemnation in the British

Page 16 U. S. 80

court of admiralty hereinafter mentioned, the said ship was a duly registered American ship and was owned by Isaac Clason, deceased, an American citizen, residing in New York, or by the claimants, his executors, who were also American citizens, residing in New York.

That soon after the commencement of the late war, the said ship sailed from the United States on a foreign voyage, and immediately after leaving a port of the United States on the said voyage was captured by a British vessel of war and carried into Halifax, Nova Scotia, where she was regularly libeled and condemned as prize in the court of vice-admiralty of that province, after which she was purchased by the British subjects who claimed to own her at the time she was recaptured by the Surprise. This last mentioned capture having been made, the ship Star was brought into the port of New York and libeled in the District Court of New York as prize to the said privateer, upon which libel the appellants put in a claim, claiming the said ship as the property of their testator and claiming to have the said ship restored to them upon the payment of salvage, which claim was rejected, and the ship was condemned. The cause was then carried to the circuit court, where the decree of the district court has affirmed. It was then brought by appeal, to this Court.

Page 16 U. S. 85

MR. JUSTICE STORY delivered the opinion of the Court.

This is the case of an American ship captured by the enemy during the late war, and after condemnation and sale to an enemy merchant, recaptured by the American private armed ship Surprise. And the question is whether, under these circumstances,

Page 16 U. S. 86

the ship is to be restored on salvage to the former American owner or condemned as good prize of war. If the case were to stand on the general salvage act of 1800, in cases of recapture (Act of 3 March, 1800, ch. 14), it is perfectly clear that the claimants are barred of all right, for that act expressly excepts from its operation all cases where the property has been condemned by competent authority. The same result would flow from the principles of the law of nations. It is admitted on all sides by public jurists that in cases of capture, a firm possession changes the title to the property, and although there has been in former times much vexed discussion as to the time at which this change of property takes place -- whether on the capture or on the pernoctation, or on the carrying infra praesidia of the prize -- it is universally allowed that at all events a sentence of condemnation completely extinguishes the title of the original proprietor and transfers a rightful title to the captors or their sovereign. It would follow, of course, that property recaptured from an enemy after condemnation would, by the law of nations, be lawful prize of war in whomsoever the antecedent title might have vested.

It is supposed, however, that the provisions of the Salvage Act of 1800, ch. 14, are materially changed, in cases of captures by private armed ships, by the fifth section of the Prize Act of 26 June, 1812, ch. 107. That section declares

"That all vessels, goods, and effects the property of any citizen of the United States or of persons resident within and under the protection of the United States or of persons

Page 16 U. S. 87

permanently resident within and under the protection of any foreign prince, government, or state in amity with the United States which shall have been captured by the enemy and which shall be recaptured by vessels commissioned as aforesaid shall be restored to the lawful owners upon payment by them respectively of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law."

The argument is that as the section directs all vessels, goods, and effects of citizens and neutrals recaptured from the enemy to be restored, without any reference to the fact whether they had been previously condemned or not, it so far qualifies and repeals the salvage act of 1800, and that, consistently with this construction, the words "agreeably to the provisions heretofore established by law" may and ought to be referred to the rate of salvage fixed by the act of 1800, and not to the provisions of that act generally. In support of this argument it has been urged that upon any other construction, the whole section becomes completely inoperative, as every case is embraced in the previous law. That Congress may well be presumed to have intended to make a discrimination between cases of recapture by public and private ships of war unfavorable to the latter, and that Congress may have had in view a conformity to the British prize code, which since the passing of the act of 1800 had been changed in the manner now contended for by the claimant.

Page 16 U. S. 88

The argument asserted from the British prize code certainly cannot be supported upon the notion of any supposed recent change in the law relative to recaptures. So early as the reign of George II, the jus postliminii was by statute reserved to British subjects upon all recaptures of their vessels and goods by British ships, even though a previous condemnation had passed upon them, with the exception of cases where such vessels, after capture, had been set forth as ships of war. The statute of 43 Geo. III, ch. 160, s. 39, has no further altered the previous laws than to fix the salvage at uniform stipulated rates instead of leaving it to depend upon the length of time the recaptured ship was in the hands of the enemy. And the terms of this statute are very different from the language of the fifth section of our prize act of 1812, and expressly exclude from its operation and benefits all neutral property.

In respect to the legislative intention, it is extremely difficult to draw any conclusion unfavorable to private armed ships from the language or policy of the prize act or any subsequent act of Congress passed during the war. The bounties held out to these vessels not only by the prize act, but by other auxiliary acts, manifest a strong solicitude in the government to encourage this species of force. But we are not at liberty to entertain any discussions in relation to the policy of the government except so far as that policy is brought judicially to our notice in the positive enactments and declared will of the legislature. We must interpret, therefore, this clause of the prize act by the general rules of construction applicable to

Page 16 U. S. 89

all statutes, and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail.

In the first place, the section in question contains no repealing clause of any of the provisions of the salvage act of 1800, and therefore the whole laws on this subject are to be construed together, and unless so far as there is any repugnancy between them, are to be considered as in full force. That the section is free from all doubt in its language need not be asserted, but that every portion of it may by fair rules of interpretation be deemed merely affirmative of the existing law is with great confidence maintained. There is no repugnancy which requires or even affords a presumption of legislative intent to repeal any portion of the salvage act. It is true that the section declares that all vessels, goods, and effects recaptured shall be restored, but to whom are they to be restored? Certainly, by the very terms of the act, to the "lawful owners," which to prevent the most injurious, and we had almost said absurd, consequences must mean the "lawful owners" at the time of the recapture. But the lawful owners of the recaptured property, which has been already lawfully condemned, is not the original proprietor, but the person who has succeeded to that title under the decree of condemnation. Suppose the property at the time of the capture had belonged to one neutral, and after condemnation had been sold to another neutral, and then captured and recaptured by the enemy, can there be a doubt that the latter is, to all intents and purposes, the true and lawful owner, and that he may assert his

Page 16 U. S. 90

title against the first proprietor? Besides, "recapture," by force of the term, would seem most properly applied to cases where an inchoate title only was vested by capture. Can it be said in strict propriety of language that property captured from an enemy which at the time is the lawful property of an enemy purchaser is recaptured from his hands? The recapture is always supposed to be from persons who have, by operation of law, succeeded to the title acquired under a decree of condemnation.

The section, however, does not stop here, nor is it necessary to rest its construction upon the import of a few detached terms. It proceeds to declare that the recaptured property shall be restored to the lawful owners upon payment of a reasonable salvage, "according to the nature of each case, agreeably to the provisions heretofore established by law." Here is a direct and palpable reference to the salvage act, not for the purpose of repeal but for the purpose of recognizing it as in full force in respect to all cases of recapture. It is argued that the reference is confined to the mere rates of salvage established by that act. Let us see whether, consistently with any supposed legislative intention or any reasonable principle, such a construction can be sustained.

In the first place, it would make a discrimination between recaptures of property belonging to the United States and property belonging to neutrals and citizens wholly unaccountable upon any principles of national policy. In case of a previous condemnation, the property, if belonging to citizens or neutrals, would be restored on salvage; if belonging

Page 16 U. S. 91

to the United States, it would be wholly condemned as good prize of war; in the next place, the property of neutrals and citizens, if recaptured by public ships, would be good prize, but if recaptured by private armed ships would be restored on salvage. Yet in respect to neutrals or citizens, if the intention was to confer a benefit on them, the reason would seem equally to apply to both cases, and if there was a policy in discouraging captures by privateers and encouraging captures by public ships, it is strange that the legislature should not, in relation to captures not within the purview of this clause, have made a similar discrimination. The reason would be the same, and yet in those cases the salvage act uniformly gives a higher rate of salvage to private armed ships than to public ships, and the prize acts superadd an exclusive bounty on prisoners of war captured by private armed ships, of no inconsiderable value. And whatever might be the case in relation to our own citizens, it is somewhat singular that the legislature should be paying bounties out of the treasury to encourage privateers when they were in favor of neutrals, having no legal title, taking from them a large proportion of the lawful proceeds of prize.

There is yet another case which affords a more striking illustration of the difficulties which surround this construction. The salvage act of 1800 declares that upon the recapture of neutral property, the rule of reciprocity shall prevail. If the neutral would in the like case restore on salvage, then the American courts are to restore on the same salvage; if otherwise, then they are to condemn. If, therefore, by

Page 16 U. S. 92

the prize act of 1812, restitution is to be made in all cases of recapture of neutral property, and yet in the like cases the neutral sovereign would not restore, it would follow that the restitution would be without payment of any salvage, which would be repugnant not only to the intent but to the words both of the salvage act and the prize act in any mode of interpretation.

In a recent case in this Court, The Adeline, 9 Cranch. 244, condemnation passed upon some French property which during the late war had been captured by the enemy and recaptured by an American privateer upon the ground that the rule of reciprocity established by the salvage act of 1800 applied to the case, and as France would deny restitution, our courts were bound to apply the same principle to her.

There does not, therefore, seem any solid reason on which to rest the construction contended for by the claimant. And there are the most weighty reasons, founded upon public inconveniency, upon national law, and upon the very terms of the salvage and prize acts, for the contrary construction. In considering the section in question as merely affirmative, every difficulty vanishes and the symmetry of a system apparently built up with great care and caution, as well as in strict accordance with the received principles of public law, is maintained and enforced.

But it has been asked if the section is merely affirmative, what reason can be assigned for its enactment? If no satisfactory answer could be assigned, it would not impair the force of the preceding reasoning. It is very common for the legislature to make laws in affirmance both of the common

Page 16 U. S. 93

and statute law. This very act gives the district courts cognizance of captures, and yet it was clearly settled that the courts already possessed the same jurisdiction. Doubts may and often do arise how far a provision already in existence may be applied to cases contemplated in new statutes. To obviate such doubts, whether real or imaginary, is certainly not an irrational or unsatisfactory mode of legislation, and often prevents serious mischiefs during the fluctuations of professional opinions prior to a legal adjudication. It was probably to obviate some doubt of this sort that the clause in question was inserted in the act. Nor is it difficult to perceive some room for subtle doubt from the generality of the preceding (s. 4) section. That section declares that "all captures and prizes of vessels and property shall be forfeited" and accrue to the owners, officers, and crew of the capturing private armed ship, and from the generality of this language it might possible (we do not say upon any sound interpretation) have been doubted whether the words "all captures" might not be held to comprehend captures of neutral property, which had not yet been condemned. At all events, upon every view of this case, the Court is of opinion that the property having been previously condemned and the title passed to the enemy, and, consistently with the salvage and prize acts, must be decreed to be good prize of war.

Decree affirmed, with costs.

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