RECAPTURE. The recovery from the ene my, by a force friendly to the former owner, of a prize by him captured.
It seems incumbent on fellow-citizens, and it is of course equally the duty of allies, to rescue each other from the enemy when there is a reasonable prospect of success ; 3 C. Rob. 224.
By R. S. § 4652, if a vessel or other prop erty shall have been captured by any force hostile to the United States, and shall be re captured, not having been condemned as prize before recapture, meet and competent salvage shall be awarded, according to the circumstances of each case. If it be United States property, it shall be restored to the United States, and the court shall order the Treasury to pay salvage, costs and ex penses. If it belonged to persons residing within or under the protection of the United States, it shall be restored to them upon pay ment of salvage, etc.; if under any foreign country in amity with the United States, and by the law or usage of such country the prop erty of a citizen of the United States would be restored in like circumstances, it shall be restored upon such terms as the law of such country would require of a United States citizen in like circumstances, otherwise upon the payment of salvage, etc., as the court shall order. The salvage is decreed to the captors. Where there has been no capture there can be no recapture ; Oakes v. U. S., 174 U. S. 793, 19 Sup. Ct. 864, 43 L. Ed. 1169.
Salvage is not generally allowed on the re capture of neutral property, unless there be danger of condemnation, or such unjustifiable conduct on the part of the government of the captors as to bring the property into jeopar dy ; 6 C. Rob. 410; Talbot v. Seeman, 1 Cra. (U. S.) 1, 2 L. Ed. 15. To entitle a party to salvage there must have been actual or con structive capture ; but it is sufficient if the property was completely under the dominion of the enemy ; 3 C. Rob. 305 ; it is a recap ture if the prize was actually rescued from the grasp of the hostile captor; id.; 3 Phill. Int. L. 638. Where the enemy has captured a ship and then abandoned her and she is recaptured, she is to be restored on payment of salvage, but the rate of salvage is discre tionary; 6 C. Rob. 273; but if the abandon ment be caused by terror of a hostile fleet, it is a recapture ; id.
The distinction between the recapture of the property of a belligerent and that of a neutral must be carefully observed. In the former case international law decrees that title to the recaptured property vests imme diately in the state making the capture, leav ing it to the municipal law of that state to decide whether the property shall be restor ed to the original owners and upon what con ditions. In the case of a neutral vessel, re
capture can only confer upon the receptor state the rights which were possessed by the state from which the vessel was recaptured, that is to say, a title subject to the decision of a prize court that the neutral vessel is subject to condemnation. When the courts of the captor state have decided that the ves sel would have been subject to condemna tion, it then remains for the municipal law of the state to determine the amount of sal vage due by the neutral.
Where a prize is abandoned and brought into court by neutral salvors, a neutral court has jurisdiction to decree salvage, but can not restore the property to the original own er; neutral nations ought not to inquire in to the validity of a capture as between bellig erents ; McDonough v. Dannery, 3 Dall. (U. S.) 188, 1 IL Ed. 563.
Recapture can be made by a non-commis sioned vessel ; 3 C. Rob. 229.
In Great Britain prize statutes were for merly passed at the beginning of every war. The Naval Prize Act, 1864, provides that, as between subjects, the right to recover pos session is preserved forever, except where the vessel, after capture, has been fitted out by the enemy for war. The right is subject, when the recapture is by a public ship, to the payment of one-eighth salvage or when the recapture is made under circumstances of special difficulty or danger, more than one eighth, but not exceeding one-fourth. The French rule is to restore a vessel recaptured by a public vessel on the payment of one thirtieth of the value, if recaptured within twenty-four hours ; if after that time, the salvage is one-tenth.
If the prize has been duly condemned and sold to a neutral purchaser by the captors, that title prevails against the original own ers and the recaptors, both under the English and American rule. But such condemnation must be in a competent prize court of the belligerents and not one held in neutral ter ritory ; 1 C. Rob. 135.
A recaptured vessel may be permitted, un der the English act of 1864, to continue her voyage, or be brought in at once for adjudi cation; in the former case the recaptor does not lose his right to salvage. If she does not return to a port of the kingdom within six months, the recaptor may proceed in the admiralty, for. his salvage.
See INFRA PiriEsiniA; NEUTRALITY; POST LIMINIUM; PRIZE; SALVAGE.