compensation by way of salvage. But what is to be done with regard to Perry? He is clearly proved to be an absconded slave, and his owner has lost his services for several years. To this I reply, that whatever may have been my decision, had he been at the time hired out for the benefit of his owner, since he was in fact a runaway, his master must receive his compensation, and not himself. One more question remains to be disposed of. The ship had proceeded six hundred miles on her way to Jamaica, when Jones and the crew, without the consent and against the will of Fisher, altered their course in the night, and made for this port. Fisher contends that this was an act of mutiny, which worked a forfeiture of the rights of all concerned in it. But it appears to me that this deviation was the first unquestionably correct act done by the company of the salvors. Jones was unexceptionably the master, and even if we view Fisher as the owner, which is the highest grade to which he can pretend, his station at sea is inferior to that of the master. There could not be a mutiny then where the master headed the opposition. The ship's company had a right to alter the course for the good of all concerned, and more especially to make an alteration so materially beneficial to the owners of the vessel and cargo. It was the first instance in which Fisher's interest had given way to those of the owners, and this was violently opposed by him. Besides, if this forfeiture had occurred, it would not have been to the benefit of Fisher, but of the owners, and it would be absurd to adjudge that a cause of forfeiture which clearly tended to their benefit.

In the course of the argument, the case of the Blaireau was often cited; and that case was very justly considered as the best standard for governing our decision in this. I readi ly receive it as such; and think, that when compared with that, the merits of this case are strikingly inferior. 1st, The amount saved was only about two-thirds the present amount. 2d, The attempt to save the Blaireau was universally acknowledged to be attended with great danger, almost desperate, such was her

leaky and shattered state: here the danger is universally allowed to have been but inconsiderable, as the loss of the masts in fact, in some measure diminished it. The distance navigated there, is stated to have been three thousand miles; true or false, is immaterial, if the court were under the influence of that impression. In this case the vessel was not navigated above twelve hundred. If the owners' interests had been considered, it need not have been navigated above four hundred. Whether the Blaireau was derelict or not, I have before declared technically immaterial, but I should think it unavailing to contend that Tooles being on board, could diminish the merit of the salvors. To the merit of saving the property was added the more important consideration of saving human life. Finally, it has been contended, that the owners of the ship in this case ought to be allowed their freight and general average, principally on the ground of their having precipitated a sale of vessel and cargo, so as to deprive the owners of an opportunity of tendering salvage and proceeding on their vovage.

If precipitating the sale is any ground of complaint, it is obvious that it can only be made against the district court, and not against the salvors. I am fully aware, that great and unnecessary loss to owners may be produced in such cases, as salvage can as well be ascertained by appraisement as by sale. But if a court has been unadvisedly led to order a sale in such a case, it is as against the salvors, damnum absque injuria. Freight and average can with no propriety be charged upon salvors, as both the freight and average are equally the result of the efforts in saving the ship and goods. That claim, therefore, must be wholly rejected.

Upon the whole, I shall decree to the salvors the onefourth, of the net proceeds of vessel and cargo, and hesitate while I do so, under an apprehension that I have given too much. This will amount to more than twenty-one thousand dollars; of this sum let four hundred be paid to the pilot-boat Opposition, and in the distribution of the balance, I adjudge one third to the Margaret, her freight, cargo and crew.

The

remaining two thirds to be divided into twenty-four parts, and distributed as follows: to Fisher, eight parts; to Jones, six parts; to Rice, three parts; to Beach, one part; to the five free seamen, and the owner of Perry the slave, each one part. In distributing the one third assigned to the Margaret, let the sum be also divided into twenty-four parts, sixteen of which are to be divided amongst the owners of the vessel, cargo, and freight, according to their relative value; in which distribution let the vessel be valued at three thousand dollars, the freight at four thousand, and the cargo at the rate which Fisher himself fixes the value in his testimony, valuing those articles to which he does not testify at the advance proved by him on others. The reason for adopting this mode of fixing the value of the cargo is this: the result is unfavourable to Fisher, but he cannot murmur at it, as it is founded on his own testimony, and Johnson, the owner, being on board, and having consented to the undertaking, is certainly entitled to salvage. In distributing the remaining eight shares of the Margaret's third, it is right that Darrel, the second mate of the Sybil, should participate. He was entered mate to the Margaret, and, what I attach more importance to, he appears to have been desirous of remaining by his own ship. Kennedy is also entitled to some distinction in this division. Let Wilson then have three parts, Darrel one part and a half, Kennedy one part, and the balance be equally distributed among the remainder of the Margaret's crew. The balance of the proceeds must be distributed among the claimants according as they shall prove interest. The claims of freight and average, even as between vessel and cargo, I wholly reject, as the abandonment put an end to the contract, and I consider the salvage paid by the freighters as a substitute for both freight and average. The decree of the district court* is thus revised, and annulled so far as it is inconsistent with this decree, and the register will report to this court such evidence relative to interest, as

* That decree awarded fifty per cent. salvage.

will enable it to make a final order of distribution, after paying all costs, which are to be charged upon the entire amount of the sales.

As to the specie, which it appears was taken from the Sybil and saved in the Margaret, I think it not necessary to make any observations respecting it, as it does not appear to me to be at all subject to our jurisdiction. Had any thing improper been done respecting it, we should have enforced such terms upon the salvors as would have been consistent with equity and good conscience: but nothing with this view appears to require the interference of this court.

CONNECTICUT: SUPERIOR COURT, JUNE, 1811.

Brown et. al. v. Union Insurance Company of New-London. Resistance by the masters and mariners of a neutral vessel to the search of a belligerent is barratry.

This was an action on a policy of insurance to recover for

a loss of the cargo of the ship Franklin.

The insurance was stated to have been made for the sum of four thousand dollars of said cargo at and from Martinique to the port of destination in the United States, " from the dangers of the seas, fire, enemies, assailing thieves, restraint and detainment of princes and people, of what nation or quality soever, barratry of the master or mariners, (unless the assured were owners of the vessel,) and from all other misfortunes and losses, that should come to said cargo." The declaration then stated, that the Franklin being laden with a cargo to the amount of ten thousand dollars, on the first day of November 1808, sailed from Martinique for the United States, and on the voyage was captured by certain vessels of war belonging to his Britanic majesty, and by them was held in custody, so that the cargo was lost to the plaintiffs. There was an account also

stating the loss to have been by the barratry of the master and mariners, in this, "that the master and mariners did, within and during said voyage, resist the capture and search of his majesty's brig of war Ferret, by means of which said cargo was afterwards, by the brigs of war Melpomene and Circe, wholly detained from the plaintiffs, and lost."

The general issue was pleaded, and on the trial, the plaintiffs, to make out their case, proved the execution of the policy; their property in the cargo; that the vessel was owned by Elisha Denison and by W. and S. Robinson, citizens of the United States; that a capture was made as stated in the declaration; and that they had duly made an abandonment to the defendants. There they rested their case, claiming as for a total loss.

The defendants, in their defence, proved a capture by a British ship of war; a rescue by the master and mariners, a recapture by another British ship of war; and produced a copy of a condemnation passed in the court of vice-admiralty in Gibraltar, in which the ground of condemnation was stated as follows: "Pronounced the said vessel called the Franklin and her lading to have been unlawfully rescued and retaken by the master from the possession of the prize-master and others, put on board thereof from his majesty's sloop-of-war Ferret, Wells commander, whilst proceeding to a British port for adjudication, and as such, or otherwise, subject and liable to confiscation; and condemned the same as good and lawful prize to our sovereign lord," &c.

On these facts the court charged the jury, that the plaintiffs were by law entitled to recover. The jury found a verdict in favour of the plaintiffs accordingly; and the defendants moved for a new trial on the ground of a misdirection. The question being reserved for the consideration of the nine judges.

Goddard and Law in support of the motion, contended,

1. That the resistance to a search by the master and crew of the ship Franklin, and the forcible rescue of such ship, after capture, was a breach of neutrality.