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![handle is hein.slavery/ssactsengr0388 and id is 1 raw text is: THE FRANKLIN
to the crew of His Majesty's ship the Harpy, on a suggestion that the Hope
was stranded and in great distress; and that the Harpy had assisted her, and
taken on board some chests of bullion, &c. for the purpose of lightening the ship,
and for the preservation of the treasure.
In support of the protest, Swabey objected that the only mode of proceeding for
salvage, in the Instance Court, was by a warrant of arrest of the ship ; that there
was no precedent in the books of a monition against the proprietor personally to
shew cause in the first instance.
Court.-I am not disposed to sustain the objection that has been taken to the legal
mode of proceeding ; but the substance of this claim of merit, on the part of the
Harpy, is of such a nature that it seems to be a matter more fit for private remunera-
tion than to be made the subject of a suit of salvage. The nature and extent of the
service performed, presents a very fit occasion for the gratitude of so considerable a
society of merchants as the East India Company to express itself in some sort of hon-
orary acknowledgment to the King's officer who performed it. I think [216] it would
be difficult to make more of it; possibly on this opinion having been expressed, the
matter may proceed no further, otherwise I must consider the objections taken against
the mode of proceeding, though, as at present advised, indisposed to sustain them.*
[217] THE FRANKLIN -(Segerbrath, Master). March 26, 1801.-Contraband with
false destination affects the ship as well as the cargo. - Ancient practice:
Relaxation in favour of fair proceedings, on the part of the neutral merchant.
[S. C. 1 Eng. Pr. Cas. 298. As to the doctrine of infection generally, see The
Kronprinzessan Margareta, [1921] 1 A. C. 486.]
* In The Trelawney, Lake, 20th June, 1801, which was a case of salvage of a
slave ship on the coast of Africa, afterwards given up to the master for the convenience
of proceeding on the voyage. The proceedings had been instituted in the same
manner, by a monition, calling on the owners to shew cause why salvage should not
be decreed. The owners appeared under protest, and in support of the protest, Arnold
and Swabey took a similar objection to that taken in The Hope ; that a suit of
salvage, in a case civil and maritime, should commence by an arrest of the ship, as
being a proceeding in rem ; that in the articles 18th Feb. 1633, it was particularly
expressed, ' that if suit shall be in the Court of Admiralty, for building, amending,
saving, or necessary victualling the ship, against the ship, and not against any party
by name, but such, as for his interest, makes himself a party, no prohibition shall be
granted, though this be done within the realm.' From this it was inferred, that for
saving the ship, the suit should originate against the ship, and not against the owner.
On the other side, the King's Advocate and Laurence.--The owners of this property
have received great benefit from the service of the salvors, in this case will not be
denied. In strictness, the salvors had a right to bring home the vessel to ground a
demand of salvage on proceedings against her ; because they have waived that right
for the further convenience of the owners, it is endeavoured to turn them round, by
objecting to the form of proceeding ; the effect of which would certainly be to make
all other salvors very cautious how they depart from their extreme right in future
instances. It is said that our proceedings recite, and suppose an action in rem
depending ; and that it is by this fiction only that the monition is introduced. If
that were the case, such a fiction would be very sustainable: but the truth is not as
it has been represented. The old practice has always been, in the first instance,
against the person ; and several of the first chapters of Clarke's Praxis direct the
proceedings to be against the person.
Court.--As the objection has been pressed, I shall reserve this matter for further
consideration. At present it may be sufficient to say that the Court will be extremely
unwilling to hold, that because a salvor has chosen to proceed in the manner most
favourable and most accommodating to the other party, he shall be deprived of
substantial redress in this Court.
It is a most ungracious objection that is founded upon an act of the salvors,
done at the request and for the convenience of the party benefited, and as it may
fairly be presumed, under a tacit reservation of all rights.
On the 31st July, the Court directed the protest to be overruled, and decreed a
monition against the owners to shew cause.
3 0. ROB. 216.](ViewImageLocal?handle=hein.slavery/ssactsengr0388&div=1&collection=&method=preview&ext=.png&size=3)