The final case remains of recaptures of vessels of an ally. Here the question of the original captor's title enters in, for if the original captor had good title, the vessel is enemy property and should be condemned as good prize to the benefit of the recaptor; but if the title of the original captor is incomplete the original owner still has a certain title which must be respected. The question therefore arises, when is the original captor's title complete? There have been many rules on the subject. Thus Sir William Scott has said:
"It can not be forgotten that by the ancient law of Europe the perductio infra praesidia, infra locum tutum was a sufficient conversion of the property, that by a later law a possession of twenty-four hours was sufficient to divest the former owner. This is laid down in the 287th article of the Consolato Del Mare in terms not very intelligible in themselves but which are satisfactorily explained by Grotius and by his commentator Barbeyrac in his notes upon that article."[3] Sir Leoline Jenkins, in 1672 said:
"In England we have not the letter of any law for our direction only I could never find that the court of admiralty either before the late troubles or since has in these cases adjudged the ships of one subject good prize to another." He then refers to the Commonwealth laws of 1649 and says, "Whether the usurpers intended this as a new law or an affirmance of the ancient custom of England I will not take upon me to determine, only I will say, condemnation upon the enemies possession for twenty-four hours is a modern usage."[4] Later legal adjudication and condemnation was clearly required before the title of the captor state was complete. Thus Lord Mansfield said:
"I have talked with Sir George Lee who has examined the books of the court of admiralty and he informs me that they hold the property not changed, so as to bar the owner in favor of a vendee or recaptor till there had been a sentence of condemnation, and that in the reign of Charles II, Sir Richard Floyd gave a solemn judgment upon the property and decided restitution of a ship retaken by a privateer after she had been fourteen weeks in the enemies possession because she had not been condemned."[5] And again "That no property vest in any goods taken at sea or on land by a ship or her crew, till a sentence of condemnation as good and lawful prize."[6] These cases referred to vessels owned by subjects rather than allies as they occurred before the law granting especial restitution to citizens had been passed but they serve to make it clear that English law regards the title of the enemy captor complete and the title of the original owner destroyed after legal condemnation in the enemy prize court and not before. Vessels originally belonging to allies after such condemnation will be considered good prize and the ally has no claim. There is no question of salvage, instead the captor receives his share of prize money. Recaptures before the enemy title is complete revert to the ally on payment of salvage but if instances can be given of British property retaken by them and condemned as prize, the court of admiralty will determine the case according to their own rule.[7]
Thus the recaptor may receive no reward at all, may be entitled to salvage or may be entitled to prize money.
The first case occurs when a neutral vessel is recaptured from a recognized belligerent.
The second occurs when the recapture is made from a pirate, when the original owner is a British subject, or when the original owner is an ally and the vessel has not been condemned by the enemy's prize court.
The third case occurs when the vessel originally belonged to an ally but has been legally condemned by the enemy prize court and in any case of an ally's vessel where that country refuses to return British vessels.
To be entitled to salvage the recaptor must make an actual military recapture. Constructive recaptures such as occupation of a vessel abandoned by the enemy do not entitle to military salvage.[8]
As already stated where salvage is allowed it consists of one-eighth of the value of the vessel and cargo recaptured or in cases of exceptional difficulty one-fourth to be governed by the discretion of the court.[9] Salvage is apportioned among the officers and crew in the same manner as prize money.