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![handle is hein.slavery/ssactsengr0495 and id is 1 raw text is: THE GENERAL PALMER 26
made by the Black Joke. But, in order to see in what sense the terms relied
upon are to be interpreted, it may be proper to inquire, what are the principles of
law applicable to such cases, independent of the order ? It has, I believe, been the
invariable practice of the Prize Courts to hold joint captors entitled to share according
to their respective forces present at the capture; and where efficient services have
been rendered by tenders not attached, as in the case of The Melomane (5 C. Rob.
41), or by other non-commissioned vessels, the condemnation of their proportion, so
calculated, has passed to the Admiralty; but no greater proportion has ever so
passed, in cases of joint captures, than ac-[321]-cording to the amount of force
present, and so contributing to the capture. That has been the invariable rule of
practice, and is agreeable to the principles of natural equity and justice. If that
is admitted, and I have not heard it contradicted, it will afford a rule of construction
to the order, if it is ambiguous or obscure ; and it will be my duty not to depart
from so equitable a principle, unless constrained by terns that are perfectly clear
and unequivocal.
The clause referred to appears first in that part of the order which relates to
revenue seizures, in which incidents of joint capture are not generally contemplated.
It is afterwards applied to slave cases by general reference ; and there may be
something, perhaps, in this consideration that points rather to a limited interpre-
tation of its terms. That clause directs, that seizures made by tenders shall be
shared with the ship to which the tender belongs, as if the ship had made the cap-
ture. Seizures made by tenders may be either such as are made by tenders
alone, or in the proportion attributed to tenders in cases of joint capture. It is not
necessary to go further to put an adequate construction on the terms of the order.
In the former class of cases, it may be truly said, in the words of Lord Stowell, When
a ship takes by her boats or tender, she does all she could have done if present. But
in joint capture the consequence may not be the same, as the contest may be more
severe and dangerous to the joint captor than it would have been if the ship herself
had been present. When it is said, therefore, that by the terms of the order the ship
is to be considered as present, it should be remembered, that cannot [322] be, to
the effect of rendering equal service ; and it would be unjust to the joint captor to
adopt that construction for the purpose of giving to another party a share in the
prize, disproportioned to the force actually contributing to the capture. But in
applying the order only to such proportions of seizure as may be attributed to the
assistance rendered by tenders in cases of joint capture, no injustice will be done.
The order is, indeed, in this respect, only declaratory of the general principle of law,
and may, therefore, be more safely interpreted by it. If the order could be applied
more absolutely and without qualification, the same argument might be used to
entitle the whole ship's crew, even in cases of a wilful departure of the ship from the
scene of action, in pursuit of some other object, which. would be unreasonable, and
contrary to all principle.
Something has been said of the hardship sustained by the tender, in having her
small proportion distributed with the whole crew ; but that, I conceive, to have
been the state of the old law ; and there is, I presume, some reciprocity between
parties so detached, which may further remove this objection. On the whole, I am
clearly of opinion that this allegation will not entitle the Sybille to share in the
manner pleaded, and, therefore, it will be of no use to admit it to proof.
Allegation rejected.
On the 12th of November an application, that the expenses incurred on
behalf of the Sybille should be paid out of the bounties, was opposed and
rejected.
[323] GENERAL PALMER -(Thomas). May 22, 1830.-The Court, on appeal
from an award of salvage, reversed the award, considering the amount excessive,
as the service had not been attended by much labour or danger; but allowed
the salvors their costs.
This was an appeal from an award of five commissioners of the Cinque Ports, in
a case of salvage rendered off Margate to a valuable East India homeward bound
ship, upwards of 500 tons burden. The award detailed the circumstances, from
which it did not appear, that there had been any material disputes before the com-
missioners respecting the facts, or that any proofs had been submitted to them
261
2 HAGG. 321.](ViewImageLocal?handle=hein.slavery/ssactsengr0495&div=1&collection=&method=preview&ext=.png&size=3)