221:; two separate laws prescribed different rates of compensation for salvors, or rescuers of abandoned or captured ships. A 1798 law stated that the owner of a ship which is recovered by a "public" vessel shall pay one-eighth of the ship's value to the salvors, as recovery fee. A 1799 law had more complex language: if a captured ship is recovered within 24 hours, the owner shall pay the salvors one-eighth its value; if a captured ship is recovered 96 hours after its capture, the owner shall pay the salvor one-half the ship's value. Tingy, the salvor, sought the greater compensation of one-half, while Bas, the owner, sought the lesser payment of one-eighth. The Supreme Court affirmed the lower courts' decision, validating the later 1799 law's language: Bas would have to pay the higher rate of one-half as recovery fee.
271:, writing first for the Court, noted that the difference between the two laws was that the 1798 dealt with ships recaptured from the French, while the 1799 law dealt with ships recaptured from the enemy. This turned on the issue of "was France the enemy?" and the larger question of, "were we at war?" Washington proceeded to recognize the difference between a perfect war, where Congress declares war upon another country, and an imperfect war, where Congress does not declare but rather authorizes hostilities. Congress had, in this case, raised an army, suspended commerce with France and dissolved a treaty. This also allowed them to defend themselves against French ships and reclaim American ships as prize. This was, by all accounts, an imperfect war, qualifying France as an enemy under the 1799 law.
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Congress began enacting laws providing armed American ships greater ability to reclaim American ships taken by the French. In 1798, Congress passed legislation allowing for payment of 1/8 full value of the vessel, to be paid to the recaptor, for ships reclaimed from the French. However, in
284:, forming a part of the law of nations," but in an imperfect war "its extent and operation depend on our municipal laws." With Congress authorizing hostilities, this was an imperfect war against France, making them the enemy and validating the 1799 law.
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1799, Congress enacted another law allowing the recaptors of a private vessel 1/2 salvage value of the ship, where retaken after 96 hours from the enemy. This was to be paid by the vessel's owner and without any deduction.
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deemphasized the nature of the war, perfect versus imperfect, noting only that we were at war "so far as we may proceed in hostile operations." For the duration of this war, France was the enemy, and the 1799 law applied.
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Bas v. Tingy at "Restoring the
Congressional Duty to Declare War," Rutgers Law Review 2011, Prof. Alfred W. Blumrosen, the Thomas A. Cowan Prof. of Law, Emeritus, Rutgers School of Law - Newark and Steven M. Blumrosen
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The decision of the lower courts was affirmed. The 1799 act of
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