The republic. [volume] (Washington [D.C.]) 1849-1853, 1849-09-22


time, not feeling disposed TO countenance commu-
mcauons from any quarter which question or inn
pugn the honor and dignity of the American Gov
eminent, the President has deemed it proper To
direct me to transmit TO you the accompanying
| correspondence, which he wishes you to transmit
To the French Government You will readily per-
ceive that the language objected to, and the temper
which M. Poussin has not been able to conceal,
must necessarily tend to obstruct diplomatic inter
course, and essentially calculated to enbarrass
rather than to promote friendly discussion OF
questions that concern the honor and interests OF
the two republics.
sir respectfully Your SHS Sb nd ssSyr6
RICHARD RUSH, esq, &c.
The attorney General TO Mr.. Clayton.
ATTORNEY GENERALS OFFICE
June 20, lS49.
Sir: In compliance with the request of your note
OF the 18th instant, proceed to give you a more
formal opinion than have heretoford done, upon
the question some time since submitted to this Of
hce, in the case of the salvage claim, at time
made by Captain Carpenter, of the United States
steamer Iris, in behalf of himself officers and crew.
for saving the French ship Eugene off Vera Cruz,
whilst on the rock of FL Rise, near the anchorage
OF Anton Lizardo in lS4S.
do not understand that it is denied that the SER
vice rendered entitled the parties rendering it to
salvage except upon the ground that themselves
and their vessel constituted portion of the naval
marine of the United States. Nor could such de-
the most imminent peril, and its destruction GER
tain, but for the aid of Captain Carpenter and his
men. 1t had every element of salvage case, and
upon general principles independent of the official
character OF the salyors, their title to such al
lowance would have been perfectly clear The
single objection, then, the claim was and u.s. that
they were part of the naval marine of the United
States. Is this valid objection? ] think not and
propose to examine it briefly, first, upon authori
ty; and second, upon principle.
Unless there be, upon some ground of reciprocity,
different rule upon this subject, in relation to
French vessels and property rescued from danger
under circumstances emitting to salvage, than ex-
lists in relation to American and other vessels and
property, it will be found, upon authority, to be
perfectly plain, question.
How is the law in England? Does there exist
there any distinction between salvage service rem
dered by public and private vessel, or TO do
mestic and foreign vessel? There does not This
will be plain from the citation OF few First
That the service is rendered by public vessel. In
the case of the Gage, C Rob-. 273,) civil and mill
tary salvage were both decrced; and in the Lord
Nelson, q Edwards, 79,) civil salvage; in each, the
service being rendered by English men of-war, and
the property saved being also English. No objec
ton was minated by the bar or bench, to the
claim, because of the official character of the sal
vors-an omission utterly inconsistent with the
istence there OF distinction in such cases between
public and private vessels rendering salvage SER
vice Second: Is the rule there different one when
the vessel and property saved foreign, and not
domestic? Clearly not.
III the case OF the FenSdmenfO Fettx, (EdWardS
llb,) the vessel saved was Portuguese, and the
claim actually made by the salvors resisted,
not upon that ground, upon the ground of the
public character of the salvors but because the
vice was not of military kind emitting to mill
tary salvage In answer to this, Sir William Scott
said: Now supposing it were clear that there was
really no salvage of war; the effect of this objec-
ton would only be that should put the parties to
the expense of a new proceeding in the Instance
Court. There is no doubt that Court of admiralty
has general jurisdiction to REGARD services Of tis
nature and that the party ,ooud recover by action in
the Instance Court"
He evidently considered the claim as perfectly
clear, doubling only the character of the sal
wage to be awarded; that u.s. whether il should be
military civil. But the right to it, notwithstand
ing the salvors belonged to the naval service of
England, and the property saved was foreign, was
esteemed too plain for question
could multiply English cases, i'll thought it ne
cessary. The objection, indeed, is nowhere that
have been able to discover, suggested either in any
English or American case, or by any English
American commentator. Nor is it necessary to
cite but one American case-Thc United States
the Amistad, Is Peters, 5lS The facts, far
this question is concerned, were these The Amis-
tad, a SPANISH schooner, on the 9th June, 1889,
cleared from Havana, in Cuba, for Puerto Principe
in the same island having on board Capt. Ferrer
and Ruiz and Montez, Spanish subjects and fifty
four negroes. During the voyage the negroes rose
killed the captain, and took possession of the vessel
They spared the lives Of Ruiz and Montez, their
engaging to aid in steering the schooner for Africa
or to place where negro slavery did not exist
The negroes were, however, in this deceived, and
the vessel steered for the United States where she
arrived of Long Island on the 26th of August, and
anchored within half mile of the shore. In
this condition she was discovered by the United
States brig Warrington, Lieutenant (sedneu. With
the assistance Of his officers and crew, he took pos
session OF her and of the negroes and brought them
into the district of Connecticut, and there belled
vessel, cargo, and negroes for saiuage The Span
ish owners of part of the cargo filed their claim
III. denied District
creed it to Lieut.. Gedney, his officers and crew.
the amount of one third of the value of vessel and
cargo, rejecting it for the negroes; and the
OF the cargo appealed to the Circuit Court. That
Court affirmed pro lorna the decree, and the
was brought To the Supreme Court of the United
States. There were many other questions, grow
ing out of facts which have not stated, because
they have no bearing upon the one am consider
ing II will be that as far as that question is
involved, the il directly in point. The pro-
perty saved, vessel and cargo, were foreign, and
the salvors portion of the naval marine of the
United States on board public vessel of the United
States. II even stronger in this, that there the
United States themselves interviewed, maintaining
that il their duty, under the treaty with Spain
OF the 9th October 1875, as continued in 1919 and
1921 TO have the property delivered entire TO the Span
ish owners without abatement for salvage any
other claim. The then Attorney General, Mr.. Gipn
concludes hsopening argument by saying that" the
court below has erred, because II has not dccreed
any part OF the property TO be delivered entire,
&c. From the vessel and cargo il has deducted
the salvage, diminishing them by that amount"
But neither in the court above nor below was the
title to salvage contested except upon the ground
of the supposed treaty obligation TO restore Spanish
property in the condition in which this was found
Il was not pretended that any objection to il
sted in the public character Of the salvors or Of
their vessel In giving the opinion Of the Supreme
Court, Mr.. Justice Story says: No question has
been here made as to the proprietary interests
in the vessel and cargo II IL admitted that they
| belong to Spanish subjects, and that they ought
| to be restored. The only point on this head is,
| whether the restitution ought to be the pay
| menf " salvage on not."-U5 Peters, 592.) And,
| after examining the other questions which the
| case presented, he concludes the point of sal
wage in these words; I" As TO the claim of Lieu
| tenant Gedney for his salvage service, il is un-
| derstood that the United States do not desire
| to interposo any obstacle TO the allowance Of
/ IL, If il II deemed reasonable by the court. IL
| was highly meri orious and useful service TO
the proprietors of the ship and cargo, and such as
by the general principles of maritime law, is al
| ways deemed Just foundation for salvage. The
rate allowed by the court (being, as stated,
third the vaue) does not seem 70 US TO have been
| beyond the exercise Of sound discretion, under
the very peculiar and embarrassing circumstances