Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Recapture of Movable Property and Especially of Ships
THE points I merely touched upon in the last chapter, I must now discuss and examine more fully. And first we must observe that while immovable property upon recapture returns to the previous owner by postliminy, movable property, of which we are now treating, does not, as Labeo has said: ‘Whatever is taken in war is a prize and does not return by postliminy.’ But though ships are reckoned among movables, he makes the distinction that those which are useful in war return by postliminy, though not others. However, Grotius rightly observes that this and other distinctions laid down by Roman law with respect to movable things have grown obsolete by the practices of nations; consequently all movable property, without distinction, is now considered prize without any right of postliminy. It has seemed to follow logically that goods captured by the enemy, then subsequently retaken, became the property of the recaptors, because just as capture in war transfers ownership, so recapture also transfers it; but we can recover for ourselves only the things that have become the enemy’s by full right, otherwise the former owner may still vindicate his right. At what point of time, however, movable property shall be listed as enemy property by full right, depends upon the arguments we have offered in the preceding chapter.
Now though it is difficult to define this matter, so much is at least very certain, that movable things absolutely become the property of the enemy when brought within their praesidia, and consequently, if they be retaken, the property of the recaptors. The same we say of ships that have been retaken after having been captured and brought into the enemy’s port; consequently, as I said at the end of the preceding chapter, their original owner has absolutely no claim upon them. Following this principle, the King of England and the States-General then allies, when they agreed on October 22, 1689, that each should restore to the original owner, at a certain sum, whatever ships of the other nation might be recaptured, specified that this agreement should hold only in case the said ships had not already been brought into the praesidia or ports of the enemy, for in the latter case complete ownership should pass to the recaptors.
This point then is sufficiently clear, but not equally so the question of what praesidia or ports. Is it the ports of those who captured the ships, or also of their allies? One would suppose that allies would be included, especially if they are allies in the war and therefore a part of the enemy, since in the ports of such an ally ships would be as safely guarded as in the enemy’s own ports, and there would be no hope of recapture unless they sailed out again. Unfortunately the States-General in the following case did not adopt this point of view. The French had on December 28, 1675, captured two Hamburg ships in which there were cargoes belonging to merchants of Amsterdam; after having them in their possession fourteen days they brought them into the port of Hull in England; then the admiralty at Dunkirk, before the return of the French, condemned the ships and cargoes and the French even sold a part of the goods at Hull; now when these ships with the rest of the condemned goods were being brought to Dunkirk, they were taken by the Zealanders, brought to Zealand, and there condemned with the goods that were left. However, the States-General when appealed to by the merchants of Amsterdam decreed on October 23, 1676, that the retaken goods must be restored to the original owners, on the strange ground that they had not been brought into the enemy’s harbour, condemned, and distributed. By the ‘ports of the enemy’ the States-General understood those of the captors, for they said ‘of the aforesaid enemy’, so that it did not suffice to bring the ship into another port, whether of a friend or of an ally in war. It seems to me that the Zealanders had the right on their side, though the States-General had the technical support of authority.
Ships, therefore, captured by the enemy and taken into their ports become the property of the enemy. But what if instead of being so brought into the enemy’s port they have remained for some time in the port of a friend or ally, or have navigated for some time with the capturing ship? If we consider the laws of our country and the authority of jurists who have written about customs, we can hardly reach the conclusion that length of time elapsed since capture, or position however safe, could transfer ownership in the vessels unless they be brought to harbour. Hence jurists simply say, that whatever has been recovered before being brought into the enemy port has the right of postliminy even though it has been captured for some months and has remained in the port of a common friend, for unless the enemy have brought it into their port it does not become the property of the enemy. The use of the word postliminy in that way is very careless, for those who know the meaning of the word know that it cannot correctly be applied except to things that have previously become the property of the enemy. They should have said that before things are brought to port they do not become the property of the enemy but remain the property of the original owner, and accordingly when recaptured they return to him and do not go to the recaptor.
It will be profitable to consult the laws that have been made in this country on this subject, taking them in chronological order because of their variety. Some think that the edict of the Estates of Holland of March 4, 1600, recognized the right of former owners to claim their captured ships wherever taken, even if they had been brought into the enemy’s port. This is true, but this edict concerned ships which the Estates of Holland believed condemned contrary to the laws of war as I explained in the second chapter. Consequently this edict is not pertinent. If the ships have been lawfully captured, brought to port and condemned, every claim ceases, and if they have sailed out again there remains only the right to recapture, and whoever recaptures becomes complete owner. But it may be interesting to know, in the case of recaptured vessels that had not yet been brought into an enemy port and condemned, what right belongs to the former owner and what to the recaptor; though obviously, if we know what belongs to the one we know at the same time that the remainder belongs to the other.
So far as I know the oldest law on this subject is that of the States-General of July 4, 1625, which grants one-eighth to private recaptors if the vessel is taken within twenty-four hours, one-fifth if within forty-eight hours, and a third, if thereafter. And on July 22, 1625, they extended the application of this rule to ‘warships that recovered the vessels of private owners. Next there was passed a law of the same body on March 11, 1632 which, without any distinction of time, entitled privateers to two-thirds of what they recaptured. Then again the States-General adopted a different rule on September 1, 1643, for according to Articles 56, 57, and 58 of the edict then issued, if the ship is recovered within twenty-four hours, the recaptor is to have one-eighth, if within forty-eight hours, one-fifth, and thereafter one-third, just as according to the decrees of July 4 and 22, 1625, which I have cited above. Presently again they returned to two-thirds without any distinction of time, for following the decree of 1632, Article 16 of the edict of February 8, 1645, entitled privateers to that amount. It also added that the recaptor and former owner should amicably estimate the value of the vessel and its cargo, and that if this proved impossible the Admiralty should have jurisdiction. Again the same States-General adopted a different attitude, for by the decree of April 19, 1659, only one-ninth of the value of the vessel and of the cargo was allowed to the recaptors, and the same was allowed to naval vessels as to privateers, but this decree again abolished every distinction of time. This decree was not published, but I have found it among the acts of the States-General, and it is also mentioned elsewhere. At last the States-General on April 13, 1677, preserving, as they say, the ancient laws regarding naval vessels (what ancient laws they refer to I do not know since these have varied widely), made this decree regarding private recaptors; that they should be entitled by way of salvage to a fifth of the value of recaptured ships and cargoes if these had been in the possession of the enemy less than forty-eight hours, a third, if more than forty-eight and less than ninety-six hours, and a half, if more than ninety-six hours. And this same distinction of time and the same rates of salvage were agreed to between the King of England and the States-General on October 22, 1689, in the above cited convention, in case a privateer belonging to the one should recover from the enemy ships and cargoes belonging to some subject of the other nation; however, if a ship of war performed the deed, only one-eighth the value was allowed, but without distinction of time.
Now why is there so much variety and why is the time element introduced, and in such different ways? And why does difference in time permit now greater, now smaller, rewards? And if distinctions in time are actually necessary, on what principle is the salvage varied so greatly while at times the recaptor without any distinction of time may receive the large share of two-thirds and at others the very small share of one-ninth? Indeed, it is difficult to explain things which have generally been decided without any application of a rational principle. Here if ever it is permissible to apply the line: non omnium you know the rest. ‘It is impossible to assign the principle of every rule of law laid down by our ancestors.’ Yet the exigencies of international peace and of the tranquillity of our own people demand that we reach some settled decision based upon reason. The matter rests entirely upon the question of when, in our view, the captured ships and cargo are completely the property of the enemy. The law has indeed decided that they so become by a real and complete occupation. But circumstances vary so greatly that we cannot always know whether occupation is real and complete, that is to say, whether the occupation is such that the enemy can retain and defend his booty. What the enemy has taken in the open sea far from his land he may lose, and often loses to recapture. If he brings his prey to his own ports no one will doubt that it has completely become his property. For my part, I would say the same if he brought it into the port of a friend or ally, but if this, as I said above, is not granted, let us grant that things captured at sea must be brought within the captor’s port or fleet, and that not till then are they considered fully his.
What then shall we decide if they are recaptured before that point is reached? In that case the former owner shall have the right to claim his property, since ownership has not passed to the enemy, and therefore not to the recaptor; and I said ‘former owner’ recognizing that some form of occupation has intervened. Then another question arises, whether the owner shall claim his property from the recaptor without paying salvage or reward for recapture, without giving any remuneration for his work and the expenses incurred in the recapture? Equity, the mistress of the law of nations, would not permit this. She demands that salvage or remuneration or reward, or whatever you may call it, be given. The recaptor has saved a ship and cargo that would otherwise have been lost to the owner: why should he incur danger without hope of reward, or why should he fight for another’s property as though in self-defence? Why should he expose his forces and his men to no purpose? He has managed the business of the owner with profit, and to recover the expenses incurred in the deed, he is entitled to an action as ‘voluntary agent’. I do not know of any other action applicable to the recaptor if we must decide the matter according to Roman law, and since this action is applied even now for the recovery of wages, as Jacques Godefroy correctly observes, and we still use this law, this action is the only proper one both for recovery of expenses and for wages. But by what law it has been decided to give to the recaptor a portion of the recovered goods I do not know, and even less do I comprehend how that portion varies in size according to the time during which the goods were in the hands of the enemy. What matters twenty-four, forty-eight, and ninety-six hours here? The longer or shorter possession cannot in my view bestow greater or less right to the recaptor, provided the thing was not in a place of safety.
Therefore if we wish to consider the subject from the viewpoint of reason, my opinion is that every distinction of time must be abolished, and instead of that we must take into consideration the labour and expense which the recaptor laid out, the danger to which he exposed himself, and the value of the ships and cargoes rescued. From all these considerations impartial arbitrators must decide what should be allowed to him for his labour, his expenses, and his reward, and that not with a miserly but with a liberal hand in order to encourage the industry of recaptors. Surely we ought to take into consideration whether the task was difficult or easy, whether the recaptor fought with courage or not at all, whether he incurred heavy expenses, whether the booty was worth much or little. But if you think such considerations would bring in so many doubts as to protract the litigation too long, I would answer that litigation even now may be, and is, often protracted over the value of vessels and cargoes and the deductions to be made before the true value can be determined.
And now if you still wish to give a part of the ship, do so, but not in proportion to the time during which the enemy had the prize, but rather in proportion to the expenditure of labour, as is customary in other cases of salvage. Thus the Rhodian law allowed a reward for the salvage of ships, and indeed gave a part of the salvage by way of reward, fixing the portion according to the amount of labour bestowed, as is related by Harmenopulus, and according to this I interpret the ‘reasonable salvage’ which Mary of Burgundy allowed to those who saved shipwrecked property by her law made for Holland and Zealand on November 14, 1476. Furthermore, the edict which Philip II issued in the name of William of Orange on May 15, 1574, also allowed as salvage certain parts of the shipwreck, a regulation frequently re-enacted, as recently as April 2, 1676; and indeed it allows the salvor even a larger proportion than that explicitly named if he has incurred greater labour and expense. The Estates of Holland also seem to have reference to this rule when on July 22, 1677, they promised a reasonable salvage to those who brought to the shipbuilder’s company at Dordrecht the timber that was found floating down the streams without any guard. The aforesaid laws do not define how long the wreckage and the drifting timbers may float about at the mercy of seas, rivers, and winds, since there is no reason for such distinctions; they left it rather to the arbitration of impartial men to determine the amount of the reward for the labour and expense. This is indeed the very rule that I think should be followed in the case of ships and cargoes recovered from the enemy.
In fact, the book called Il Consolato del Mare defines the matter in this very way, for it commands the man who has recovered a ship and cargo from the enemy to restore both to the former owner, retaining a salvage which for the sake of equity is reckoned in proportion to the labour and expense employed in the recapture; but there is no distinction made as to the time that the ship and cargo may have been in the possession of the enemy. The book very properly adds that restitution of the ship is called for only if the ship has not been brought to a safe place, that if on the contrary it has so been brought, since by this act ownership is plainly vested in the enemy, the ships and cargo recovered become wholly the property of the recaptor. And this agrees completely with the arguments I have offered in this chapter. I wish that all the statements found in that compendium of nautical laws were equally correct, but there are things there which are not sound.