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Duties of
Convoy.

and upon conviction, shall be fined at the discretion of the court in a sum not exceeding 500; and suffer such imprisonment, not exceeding a year, as the court shall adjudge (1). There is no branch of the service, says Sir William Scott, more unpleasant to naval officers, than that, of convoying a fleet of merchant vessels; it is a duty which is painful in its own nature, and extremely difficult in its execution, even when there is no misconduct on the part of those who are to act under their orders. It must frequently happen that, among the different vessels confided to their care, some are navigated by unskilful masters, or sail badly from some fault in their own structure, and are not capable of paying prompt obedience to the signals that are made; and therefore, officers who bring with them the best disposition for the service, usually find that they have great difficulties to struggle with. But if these difficulties are to be aggravated by the disobedience and contumacy of the persons they are to protect, the duty becomes such as hardly any man can take upon himself without a certainty of failure, and cannot terminate otherwise than in a way fatal to the interests of commerce. This having been frequently made the subject of complaint, the court of admiralty was at length armed with very extensive powers for the prevention of the evil; and in the first prosecution which took place under the statute, that court, after taking into consideration that the defendant had, although at a somewhat late period, expressed himself in terms of humiliation, and that on a former occasion he had behaved in an exemplary manner, sentenced him to pay the full costs of suit, and the further sum of £50 to his majesty. (2)

The duty of the officers and seamen forming the convoy is prescribed by the articles set forth in the statute 22 Geo. 2. c. 33. for the regulation of his majesty's sea forces. The 17th article provides that the officers and seamen of all ships appointed for convoy and guard of merchant ships, or of any other, shall diligently attend upon that charge without delay, according to their instructions in that behalf; and whosoever shall be faulty therein, and shall not faithfully perform their duty, and defend the ships and goods in their convoy, without either diverting to other parts or occasions, or refusing or neglecting to fight in their defence if they be assailed, or running away cowardly,

(1). 43 Geo. 3. c. 160. s. 5.

(2) The King v. Hayth, Edwards, Adm. Rep. 81.

and submitting the ships in their convoy to peril and hazard, or shall demand or exact any money or other reward from any merchant or master for convoying of any ships or vessels intrusted to their care, or shall misuse the masters or mariners thereof, shall be condemned to make reparation of the damage to the merchants, owners, and others, as the court of admiralty shall adjudge; and also be punished criminally according to the quality of their offences, be it by pains of death or other punishment, according as shall be adjudged fit by the court-martial (1). By the treaty with Holland in 1667, it is stipulated that the men of war, or convoys of either nation, meeting or overtaking at sea any merchant ship or ships belonging to the subjects or inhabitants of the other, holding the same course or going the same way, shall be bound, as long as they keep one course together, to protect and defend them against all and every one who would set upon them. (2)

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THE

CHAP. VI.

Of Wrecks.

HE laws relating to goods wrecked, or cast away at sea, will next require consideration. A wreck (called in Latin wreccum maris, and in French, wrec de mer) signifies in our law such goods as after a shipwreck are cast upon land by the sea, and left there within some country, so as not to belong to the jurisdiction of the admiralty, but to the common law (1). But if a human being, or even an animal, as a dog, cat, or hawk, &c. escape alive from the ship, or if there be any marks upon the goods by which they may be known again, they are not at common law considered as wrecked (2); and in a late case, where goods were cast on shore, but no live animal escaped, and a person who found the goods claimed to retain them on behalf of the lord of the manor, and refused to deliver them up on a tender of salvage, the merchant to whom the property was consigned was held entitled, on proving his property by the bill of lading, to recover them in an action of trover (3). And the lord of a manor who claims wreck under a grant from the crown, cannot legally take possession of a shipwrecked vessel, or parts of it, against the consent of those who are at hand and upon the spot, employed by the owner to save and preserve them (4). The circumstance of a dog or cat escaping alive, mentioned in Bracton, and in the statute of Edward I., is only put as an instance affording a presumption of ownership, not as a condition upon which alone the property may be reclaimed; if the owner of the dog or cat or other animal was known, the presumption of the goods belonging to the same person would be equally

(1) 2 Inst. 167. Bracton, 1. 3. c. 3. Mirror, c. 1. s. 13. and c. 3. 6. de wrecks.

(2) Id. ibid. Hamilton v. Davis. 5 Burr. 2738, 9.

(3) Hamilton v. Davis. 5 Burr. 2732.

(4) Sutton v. Bush. 2 Taunt. 302. And see the Aquila, 1 Rob. Adm. Rep. 39.

strong, whether the animal was alive or dead; the mode of proof must be varied according to the circumstances of the case; goods are now generally marked; in ancient times marks would not be so common or so accurate, and hence a dog or cat afforded the most reasonable presumption for ascertaining the owner of the goods (1). If, however, no owner should appear, the property belongs of common right to the crown or its grantee; a branch of revenue which is said to have been vested in the king partly in consideration of his guarding and protecting the seas from pirates and robbers and partly to prevent the confusion which might otherwise be expected to arise from the existence of property without any assignable owner. The revenue of wrecks is frequently granted out to lords of manors as a royal franchise; but if any one be thus entitled to wreck in his own land, and the king's goods are wrecked thereon, the king may claim them at any distance of time (2). The property in wreck is vested in the king or the lord of the manor, against every one but the right owner, from the time that the goods touch land, even before seizure, the king's interest being in fact assigned by the law, in order to prevent any other occupant (3). In respect of this species of property, which draws to it the constructive possession, an action of trespass or trover may be maintained before seizure by the lord of the manor against a person who wrongfully takes the goods away (4), but not an indictment-for felony (5). The statute 3 Edw. 1. c. 4. provides that where a man, a dog, or a cat, escapes alive out of the ship (6), the property shall not be deemed wreck; but shall be saved and kept by view of the sheriff, coroner, or king's bailiff, and delivered into the hands of such as are of the crown where the goods are found; so that if any sue for those goods, and after prove that they were his, or perished in his keeping, within a year and a day (7), they shall be restored to him without delay; and if not, they shall remain to the king, and be seized by the sheriffs, éoroners, and bailiffs, and be delivered to the ville, which shall answer before the justices of the wreck belonging to the king. And where wreck belongeth to another than to the king, he shall have it in like manner. And he that otherwise doth and

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thereof be attainted, shall be awarded to prison, and make fine at the king's will, and yield damages also. And if a bailiff do it, and it be disallowed by the lord, and the lord will not pretend any title thereunto, the bailiff shall answer, if he have whereof; and if he have not whereof, the lord shall deliver his bailiff's body to the king. The year and day mentioned in the statute are accounted from the time of the seizure (1); and if the owner dies within the time, his executors or administrators may make claim (2). If a suit be commenced within the time, it is sufficient, although the verdict is not given till afterwards, for the delay beyond the time is in that case imputable to the law (3). If goods wrecked are bona peritura, the king or lord may sell them before the year and day are past (4). And the limitation does not extend to goods of the crown which are wrecked in the manor of a subject, because to them the maxim applies that nullum tempus occurrit regi (5). The rights of his majesty, and of those who claim under him, are in general reserved entire and unprejudiced by the modern statutes; but various legislative provisions have been introduced both with regard to the method of preserving property, and of remunerating those by whom the preservation is effected, which have, in modern practice, superseded the old law. Before these provisions are noticed, however, it is proper to remark, that in order to constitute wreck the goods must come to land; if they continue at sea, they are distinguished by the names of jetsam, flotsam, or ligan (6); the law in relation to which is in many respects the same as with regard to wreck. Jetsam are such goods as are cast into the sea, and there sink, and remain under water; flotsam is where they continue swimming on the surface of the waves; ligan is where they are sunk in the sea, but tied to a cork or buoy in order to be found again (7). These are also the king's, if no owner appears to claim them; but if he does appear, he is entitled to recover the possession: for even if they be cast overboard without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity considered to have renounced his property (8); much less can things ligan be supposed to be abandoned, since the owner has done all in

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