CO885-(10-11) — Page 583

1909.

PUT

RECORD OFFICE

Reference

*J

C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

11 PUBLIC RECORD OFFICE, LONDON

MY LORD,

No. 459.

(HELIGOLAND.)

QUEEN'S ADVOCATE to COLONIAL OFFICE.

Doctors' Commons, February 23, 1867.

10 case

I AM honoured with your Lordship's commands, signified in Mr. Elliot's letter of the 13th instant, stating that he was directed by your Lordship to transmit to me a Despatch of the Governor of Heligoland of the 7th of January last, and the of appeal" sent with that Despatch, also copies of two Ordinances, No. 11 and 12, enacted by the Governor and Legislative Council of Heligoland in 1865, also copy of paragraphs 5 and 37 of the Danish Strand Laws of 1803, and a chart for the mouths of the river Elbe and Eider. Mr. Elliot was pleased to state for my information that no chart or plan was transmitted by the Governor, but that this chart was furnished by the Admiralty authorities who at the request of your Lordship considered the evidence set forth in the case of appeal, and then marked in the chart where, in their judgment, the vessel was wrecked, and Mr. Elliot was further to state that for the purposes of this case, I may assume that place to have been correctly marked, and under these circumstances he was to request that I would furnish your Lordship with my opinion upon the case submitted by the Governor. Mr. Elliot was also pleased to direct my attention to the extracts from the Danish Strand Laws, and especially to the words "Our authorities" and "Our territories,” which words would in 1803 include Heligoland (which then belonged to Denmark) and any Heligoland authorities; and to ask my opinion on what further instructions should be given to the Governor in answer to his Despatch, particularly:

(1.) Whether the Heligoland boatmen are bound in all cases wherever the salved goods may be found to give notice to the Heligoland authorities under paragraph 5. (2.) Whether under the circumstances stated in the "case of appeal" the Heligoland boatmen acted rightly in bringing back the salved goods to Heligoland, or whether they should have given notice and surrendered the goods as required to the authorities at Büsum.

In obedience to your Lordship's commands, I have taken these papers into con- sideration, and have the honour to

Report

That the Governor should be instructed that he has taken a correct view of the law applicable to this case, because it appears to be the present law of Heligoland that a fixed proportion is to be paid to the salvors in every case, however different the merit of the salvage may be, e.g., whether or no the life of the salvors has been put in jeopardy; whether or no the lives of the crew of the salved vessel have been saved; whether when the service was performed there was a dead calm in summer or a furious hurricane in winter; a very bad law in my opinion.

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Lord Stowell rejected such a rule of maritime law when it was attempted to be forced upon him. "But another question is started (he said) whether although the "Crown is allowed to have the exclusive right of property in cases where no owner appears there is not an universal rule that gives to the finder in all cases alike " without regard to the degrees of merit or service one moiety of the thing preserved. We should certainly not be very desirous to find such a rule, nor could we wish to reduce to one dead level the various degrees of merit that must perpetually occur according to the particular circumstances of each separate "case." (The “Acquila” 1 C. Rob. p. 43.)

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There may be great difficulty in altering the law of Heligoland while the rule fixed proportion in all cases is applied by adjoining maritime states, but it would be“ expedient to endeavour by communication with the proper authorities to procure the abolition of this senseless rule by them, and the substitution for it of one rewarding salvage in all cases in proportion to the peril and skill exhibited by the salvors as well as to the value of the property salved.

I am of opinion that this ship was not at sea, and therefore the Governor was right in his judgment.

I am of opinion that if Heligoland boatmen effect a salvage in the waters of a foreign state they are bound to submit to the award of the proper tribunal of that

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