Law School Case Brief
Bas v. Tingy - 4 U.S. (4 Dall.) 37 (1800)
Every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorized by the legitimate powers. It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war, where the government restrain the general power.
Plaintiff, a master of a salvaged ship brought a libel action to obtain possession of one-half of the master's ship and that ship's cargo against defendant salvager. The controversy involved a consideration of Section 2 of the Act of Congress of the 28th of June, 1798 and the Act of Congress of the 2d of March, 1799. The circuit court ruled in favor of the defendant and plaintiff appealed.
Is the salvager entitled to one-half of the rescued ship’s value?
The United States Supreme Court affirmed the decision in favor of the salvager and found that the statutory regulation of the navy had immediate effect and was not limited to future wars. In addition, the word "enemy" could be applied to France because the term was not confined to a formally declared state of war. When the Act of Congress of the 2d of March, 1799 was passed, the existing hostilities between the United States and France qualified as at least a limited public war, so the salvager was entitled to one-half of the rescued ship's value.
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