transitu. ing in a deliverable state, and nothing remaining to be done but Stoppage in to deliver them,) the same effect is produced, though no transfer be made in the wharfinger's book. (a) So the change from the mark of A. to B., in bales of goods in a warehouse by the direction of the parties, was held by the House of Lords, in a modern case, to operate as an actual delivery. (b) In the same manner when timber, to be paid for by a bill at a future day, was marked by an agent of the vendee whilst lying at the wharf of the vendor, with his concurrence and assent, and a part delivery was made; the Court of King's Bench decided, that the right of stoppage in transitu was gone, as well as to that part delivered, (though it should not have reached its ultimate destination,) as to the residue in the vendor's possession. (c) In this case it is to be observed, that two things concurred to divest the right of the vendor, a part delivery, and a mark put on the timber by the consent of the vendor, which was held to be equivalent to an executed delivery. So the marking of goods by purchasers at the time of the contract was held to take the sale of the goods out of the statute of frauds, and to be a delivery and taking possession by the vendees. (d) But this alone, perhaps, would not defeat the right of stoppage in transitu, as it might be an act for indicating the subject matter of property merely, and not of taking possession. So, likewise, a part delivery, under a bill of lading to a sub-vendee, on the arrival of the ship, has been held equivalent to a full delivery. So if the assignee of the vendee put his mark upon the goods whilst they are at an inn, in their way to the vendee, this will be a taking of possession, to defeat the right of stopping in transitu, (e) for the goods need not come to the corporal touch of the vendee. But in such case there must be no fraud, and the inn must be the ultimate place of delivery. (a) Harman v. Anderson, 2 Campb: 243. cited 14 East. 593. (b) Per Lord Ellenborough, cited in Stoveld v. Hughes, 14 East. 313. (c) Ibid. ibidem. But see Crashaw v. Eades, ante, 509, 510. (d) Anderson v. Scott, 1 Campb. 325. (e) Slubey v. Hayward, 2 H Black. 504. and see Hammond v. Anderson, 1 New Rep. 69. Compare this case with Hanson v. Meyer, 6 East. 614. before cited. The distinction seems to be, that, in the former case, part of the cargo was delivered in the name of 520 CHAPTER IX. OF SALVAGE. Of Salvage. nature of salvage. As average, in its more proper signification, is a compensation amongst the joint sharers in a venture to one who has suffered more than his proportion for the common good; so salvage is a compensation for the safety of the ship or cargo, paid to those by whose labour and courage they have been preserved from wreck, or recovered after capture. Both average and salvage are, therefore, incidental and extraordinary obligations, and only become due upon some occasion of loss by perils of the sea or war. I. As ships are saved from extreme dangers by the courage, as well as the labour, of those who afford their assistance; and as the Of the general nature of the service renders it nearly as perilous to persons who aid as to those who are aided; it is manifest that a mere compensation for the labour employed would neither be a sufficient inducement, nor even a just remuneration. The rate of salvage, therefore, necessarily includes some consideration of the nature of the service, as well as payment for actual labour. Under these circumstances the rate of salvage is necessarily uncertain. It is to be estimated by the labour employed, by the danger encountered, and by the value of the subject saved. But none of these qualities is sufficiently definite to admit of any general rule. In some few cases, indeed, where the degree of peril and labour can be previously estimated, the rate may be regulated by a law: but in the greater portion it must be left open; and can only be settled either by the consent of the parties, by suit at law, or proceedings in the Admiralty. The subject of salvage, therefore, forms a very copious branch of proceedings in the Admiralty Courts. II. The twofold occasion of salvage, which necessarily arises either from the perils of the sea, or from the accidents of war, leads to a natural distribution of the subject into the heads of wreck and capture. But before we proceed to consider it severally Of Salvage. under each of these divisions, it may be useful to advert to some general principles which belong in common to both. III. It is first to be observed, that the law never loses sight of the principle, that the state itself has an interest in the maintenance and encouragement of great maritime and mercantile concerns, and that shipping and seamen are necessarily blended with our national defence. Under this feeling, the law of salvage is at once liberal towards salvors; and on the other hand, is vigilant to protect the ship-owner and merchant from exorbitant claims made under the necessity of the case. In order to unite both these purposes, the Legislature has passed several laws for regulating the rewards to be given to salvors; and where the complicate circumstances of the case do not admit of any previous definite sum, the law has appointed arbitrators to apportion the reward according to the equity of the occasion. But as many of these cases may exceed an ordinary degree of difficulty, as they may arise upon the high seas, as well as upon the coast; and as the parties may justly require a tribunal of more knowledge and judgment than a bench of two or more magistrates; the law has very wisely reserved the jurisdiction both of the common law courts, and the Ad. miralty, in most of the salvage acts. In some cases, indeed, as will be seen in the sequel of this Chapter, the decision of the justices under the act is final: but in others, the jurisdiction of the Admiralty is entire. And if the act interferes with the subject-matter, it is either only to give the parties an option of an easier remedy, or to fix some term (as in the prize acts,) beyond which the Admiralty, in the cases within the acts, must not extend the reward to the captors. IV. The jurisdiction of the courts of law is more abridged than that of the Admiralty by the several acts of salvage: but it is a principle that this jurisdiction is reserved where it is not expressly taken away. In cases arising on the high seas, that is to say, not so immediately off the coast, that the salvors can be of the description of persons mentioned in the acts of Anne, and George 2. and 3., the determination of salvage almost necessarily belongs to the Court of Admiralty. In all these cases, if the parties cannot agree amongst themselves as to the rate of salvage, the plaintiff must resort to the Court of Admiralty; on which occasion, the most prudent course for the defendants is, to tender, in the first stage of the cause, by act of court, and not personally and verbally to the claimants, a specific sum for the salvage, accompanied by an offer to pay the costs incurred. The court will then consider of Of Salvage. Of joint-sal vors. the sufficiency of the sum tendered; and if it shall be thought sufficient, will make the party who refuses the offer liable, not only to his own costs, but also to the costs of the other side, if it should appear that the proceedings have been vexatiously pursued. (a) V. If a person get possession of goods, or save them by his own labour, after the owner has abandoned them, the common law allows him to retain possession till the owner shall pay him a due compensation for his trouble. (b) But if a ship be cast on shore, and the master, his crew, or any persons employed by them, are at hand, to save and take care of the property, the lord of the manor cannot entitle himself to salvage by interposing to secure it, contrary to the owner's express dissent. (c) And if one set of persons have taken possession of a vessel abandoned at sea, and are endeavouring to bring it into port and save it, another set have no right to interfere with them and become participators in the salvage, unless it appears that the first would not have been able to effect their purpose without the aid of the others. (d) VI. Where persons claim as joint salvors, having dispossessed the original salvors, it is incumbent on them to shew, if not an actual, at least an apparent, necessity for their intrusion; for salvors, in possession of a ship, have a legal interest, which cannot be Interest of sal- divested without a competent authority. And merchants ought vors is a vested not to be charged with a higher rate of salvage on account of an unnecessary interference of such second salvors; and when such intrusion was not warranted by law, and no necessity shewn, the Court of Admiralty held, that they were not entitled to any reward for services they might have actually performed. interest. The crew can VII. The rule adopted by the Admiralty Court in order to hold out sufficient encouragement, is to give liberally when the property is large; and, when the property is small, according to the danger. In a case, therefore, where the merits of the salvors were very considerable, the Court of Admiralty decreed one-tenth, as well as payment of the expenses of the salvors. (e) VIII. As respects crew and passengers, they can in no case be not claim sal- either salvors or joint-salvors. The crew cannot have any claim to salvage, because it is their duty to protect the ship and cargo through all perils; and the whole of their possible service is vage. (a) The Vrow Margaretha, Jacobs, 4 Rob. 103. (b) Hartfort v. Jones, 1 Lord Raym. 393., and Baring and Others v. Day, 8 East. 57. (c) Sutton v. Buck, 2 Taunt. 302. 175. (e) Blendendale, Dod. 414. pledged to the master and owners. The same reason extends, in Of Salvage. a great degree, to passengers, who share the peril, and must share the duty. But if a passenger exceed what may fairly and reasonably be expected of him as his portion of common labour to a comPassengers, mon peril and its consequences; if in the hour of danger, for under certain example, he assume the command of a ship abandoned to him by circumstances, may become the master and crew, and by his skill and labour bring her safely entitled to salinto port, he will be entitled to a reward in the nature of salvage, vage. and the court will award it liberally. (a) In the case to which we here allude the passenger had been himself a naval captain; and took the command of the vessel at the special instance of the master and crew, under circumstances of extreme danger. He succeeded in bringing the vessel into port. The owner offered him 2007. for this service: but the court and jury afterwards gave him 4007. IX. But though salvage is not due to a crew in ordinary cases, they are entitled to it, if they rescue a ship from an enemy; because the capture dissolves the contract, and discharges the crew. But this principle is not to be extended to a rescue from mutineers; in which case Lord Stowell refused to allow salvage. (b) Crew entitled to salvage. X. The rate of salvage on derelict is discretionary by modern practice in the court. The ancient rule of giving in all cases a moiety de jure to the finder is overruled by later practice. By the French law one-third is given; by our own law, as administered in the Court of Admiralty, the reward is apportioned to all the circumstances of the case, and is often a moiety. (c) The Court of Admiralty, as we have before said, has a special jurisdiction over the subject where the salvage is performed at sea. In this case the court will fix the sum to be paid, adjust the proportion, and take care of the property pending the suit: or, if a sale be necessary, direct a sale to be made, and divide the proceeds between the sal- of salvage. vors and the proprietors according to equity and reason. (d) Lately, in a case of great merit, Lord Stowell gave a moiety to the salvors, though the case approached only to derelict. (e) XI. As to the persons who are to contribute to salvage, the reward must be paid by those who receive the benefit of the service. Salvage is a compensation to the salvors, not merely for the restitution of the property which has been made to the prior owners, (a) Newman v. Walters, 3 Bos. and Pull. 612. (b) Governor Raffles, 2 Dodson, 14. (c) Aquila, Lunsden, 1 Rob. 37. (d) The William, Beckford, 3 Rob. 355. (e) Elliott, 2 Dod. 75. Of the proceedings of the ralty in cases court of Admi |