Prins Frederik (Van Senden, Commander)
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1820 |
| Date | 17 November 1820 |
| Court | High Court of Admiralty |
English Reports Citation: 165 E.R. 1543
IN THE HIGH COURT OF ADMIRALTY
Applied the "Charhieh,"1873, L R 8 Q. B. 201. Observed upon, The "Charkzeh," 1873, L R. 4 Ad & Ecc. 94 Considered, The "Parlement Belge," 1880, 4 P. D. 146; 5 P. D. 209 Referred to, The "Broadmayne," [1916] P. 77; The "Tervaete," [1922]P. 204
[451] " prins frederik "-(Van Senden, Commander). Nov. 17, 1820 -Question whether a foreign ship of war lying in a port of this country is liable to the civil process of the Court of Admiralty in a cause of salvage at the suit of British subjects. [Applied, The " Charlieh," 1873, L R 8 Q. B 201. Observed upon, The " Char-kieh" 1873, L E. 4 Ad & Ecc. 94 Considered, The " Parlement Beige," 1880, 4 P. D. 146; 5 P. D. 209 Referred to, The " Broadtnayne," [1916] P. 77 : The " Tervaete;' [1922] P. 204.] This was the case of a ship of war, armed en flute, belonging to His Majesty the King of the Netherlands, which, in the prosecution of her voyage from Batavia to the Texel, with a valuable cargo of spices and other goods on board, suffered considerable damage ofi the Scilly Islands, and was brought into Mount's Bay by the assistance of the master and crew of the British brig " Howe," belonging to the port of Penzance, and was afterwards removed to Plymouth. A warrant of arrest of the ship and cargo, at the instance of the salvors, was extracted and executed ; but the person who was left in possession, under the authority of the Court, was shortly afterwards dispossessed, by Captain Van Senden, and compelled to quit the ship. On the 4th of November 1819, an attachment was moved for against Captain Van Senden, when the judge directed the matter to stand over, but said he should expect that an appearance should be immediately given for the captain, 01 an assurance from the ambassador or consul of the Netherlands, that the ship should not be removed from Plymouth. An appearance was, on the 7th of December, given for Captain Van Senden,-but under protest to the jurisdiction of the Court. Aa act was entered into, and affidavits exhibited on the part of Captain [452] Van Sendeai, and of the salvors ; and on the 2d of May 1820 the cause came on for hearing. For Captain Van Senden, the King's Advocate.-This is a question of very considerable importance and delicacy, in which the Court will have to decide between the claims of individuals asserting an interest of salvage in this ship, under the circumstances which have been before stated, and the claims and privileges of a sovereign power asserting this to be a vessel of war appropriated to the service of the state, saibng under the commission of the sovereign, and as such, exempted from the civil process of this nature. 1 shall assume for the present, and for the sake of the argument, that the character and description of the vessel coincides with that ascribed to her, meaning, undoubtedly, to advert, in the sequel of my argument, to those grounds in the act on petition, upon which it is attempted to deny that the vessel m entitled to be considered as a ship of war, since the act alleges, that this vessel is not to be considered as a ship of war ; and, secondly, that if she were so, she is not entitled to the exemption which is claimed for her. It may be more convenient, however, to take the question of law first, and then to shew that the facts are such as fairly support the principle of law for which we contend. The law, which the Court will have to apply to this case is not founded on any 1544 THE " PHINS FREDERIK " 2 DOD8. 463. positive^ statute or custom of our own country, but must be extracted, by the wisdom and discretion of the Court, from the general principles of the law of nations, which are so broad and comprehensive as to carry with them their own qualifications suited to the [453] nature of the subject to which they ought to be applied. This is the authority on which this Court proceeds to entertain questions of salvage on foreign ships. I am not aware of any case in which the jurisdiction of the Court on foreign ships has been the subject of much adverse discussion. But I collect from what fell from the Court in one case, (a) that it would not absolutely refuse to hold jurisdiction in cases of that description. It there observed, " Salvage is a question of the jus gentium, and materially different from a mariner's contract, which is a creature of the particular institutions of each country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, why this Court should decline to interfere in such cases, and should remit them to their own domestic forum ; but this is a claim upon the general ground of quantum meruit, to be governed by a sound discretion, acting on general principles ; and 1 can see no reason why one country should be afraid to trust to the equity of the Courts of another, on a question of such a nature so to be determined." In that case there were, among the crew, some persons who stood in the double relation of British and American seamen, and the Court finally considered them as British, and on that ground treated it as a prize case of rescue from the enemy, and decided upon it finally in that view, and not upon any question of jurisdiction. Supposing that under reasonable bnaitations the Court would exercise a jurisdiction in cases of salvage of foreign ships, yet, under the description which the Court gives of its own jurisdiction, I [454] presume that it would not exercise it otherwise than on the bread principles of the law of nations-on which it presumes that other nations would be disposed to concede it, and which are so general as to embrace all interests, and will be to be applied therefore to this case, with special reference to the particular circumstances on which the claim to exemption, on the ordinary process of the Court, is founded. I will norw advert to the facts of the case, so far only as to observe, that it is not a case of derelict, in which there might be a total obliteration of the original character of the vessel, and in which there might, therefore, be a necessity for some judicial enquiry to ascertain the title of any persons claiming an interest in her. This is not a case of that kind of total abandonment, in which a vessel being saved by the exertions of individuals has been brought in by them and debvered to the care and protection of the Court. This vessel came first upon the coast, where, being in some distress from bad weather, which she had encountered, and desirous of going into Portsmouth, she took on board two persons as pilots, from a merchant vessel, and then went into a port in Cornwall, from whence she sailed again in a free character, andrwent into Plymouth, where the civil process of the Court was exercised upon her, to obtain a salvage for the services of these two persons. This is the general description of the case ; and it will be found, I humbly conceive, that the principle on which the parties come to this Court to obtain a reward for their services in the nature of salvage, if such service should appear to have been [455] rendered, is applicable only to merchant ships, and not to ships of this description. Suits for salvage in the Admiralty Court are proceedings altogether in rem. It has been said that salvors have a hen on the property ; I admit the description of the general interest of salvors ; the Court has so held it : and it is not the particular law of this Court only-it is so held in the Courts of Common Law Mr. Abbott, in referring to cases on this point, says, " Salvors are entitled, by the common law of England, to retain the possession of the goods salved, until a proper compensation is made to them for their trouble " (Abbott on Shipping, p 322). This description orf the nature of such rights will place the question in dispute in a proper light: it points to the great distinction of things in the Roman law, and in the laws of "modem nations, between those that are properly articles of commerce, and those extra commercvum, as many things are reputed to be, on account of their connection with the public service of the state. A lien or right of retaining could only be applicable to articles of commerce, as to which the remedy would be capable of being made available under any state of facts which might intervene to affect the property (a) The " Two Friends," 1 C. Rob 279. 2 DOD8. H. THE PRINS FREDERIK " How would this case stand with regard to any such test ? Such a principle supposes the master of a ship in that character in which he is appointed to merchant vessels, namely, as having an almost absolute power over the vessel. He is authorised to enter into contracts of different kinds, for the preservation of the interests of commerce. He has the direction and management of the vessel, and the cargo also is entrusted to him. His powers are of [456] an extraordinary nature, and have the effect of placing at his disposal property which does not actually belong to him. It is a power specially conferred upon him for the benefit of trade, and maintained by the principles of the laws of trade. Hence it arises, that he would, in cases of distress, be enabled to protect himself from the consequences of that distress, with reference to any demand of this sort, by hypothecating the vessel under the well-known contract of bottomry. Now in what way would the law of bottomry attach to cases of this description ? Would anyone say that this ship could be hypothecated ? or if not, that it could be put into a state of quasi hypothecation by the compulsory process of the Court ? Would it be reasonable to apply to ships of war a principle that implies the power of conversion, which cannot be exercised over them ? It may be asked also, with reference to a similar distinction, whether suits for wages could be instituted in relation to persons on board such ships I This Court does not usually...
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