tress coming into a British port was seized, and it became necessary to tranship the cargo to repair the vessel, and afterwards both ship and cargo were restored: it was held, that the maxim, that capture is delivery, is only true when the captor succeeds to the full rights of the enemy, and represents him as to those rights. If a neutral vessel, having enemy's goods, is taken, the captain pays the whole freight, because he represents the enemy by possessing himself of the enemy's goods jure belli; and although the whole freight has not been earned by the completion of the voyage, yet, as the captor by his act of seizure, has prevented the completion, his seizure shall operate to the same effect as the actual delivery of the goods to the consignee, and shall subject him to the payment of freight. But if the ship and cargo, being both neutral, are restored, the consequence is only, that the ship must proceed and complete her voyage before she can demand her freight. If the cargo is restored while the ship continues under detention, still less reason is there to contend that she has earned her whole freight. In this case the ship failed in her contract, not owing to the cargo in any manner, but to her own state of distress originally, and afterwards to her dubious character. Under these circumstances, payment of freight pro ratâ itineris peracti was decreed (z).

Where a ship, bound to Maderia, was captured and recaptured, and a prize master put on board to navigate her to England, but the ship was obliged to put into Corunna in distress, being unfit to continue her voyage, and the cargo was there sold; it was held, that no freight was due (a). So where a ship was detained by embargo, to which the cargo was not liable, and the cargo having been brought out of its course, and detained on account of the ship, was finally compelled to find another vehicle to convey it to its market (6). An em

(z) The Copenhagen, 1 Rob. 289.

(a) The Louisa, 1 Dod. 317.

(b) The Worldsborgaren, 4 Rob. 17; The Isabella Jacobina, 4 Rob. 77.

bargo, which renders it impossible for a master to perform his contract of affreightment, discharges the lien which he has upon the cargo for his freight (c). Freight is forfeited by unneutral conduct. Thus, ships engaged in a privileged trade of the enemy, by which he is relieved from the pressure of war, are not entitled to freight, as vessels sailing on a voyage in the coasting trade of the enemy (d), or between the mother country and its colony (e). So a ship is not entitled to freight for contraband articles (f); and the master is not permitted to aver his ignorance, for in time of war he is bound to know the contents of his cargo (g). So where a vessel was carrying a cargo partially protected by a license, freight was refused for so much of the cargo as was within the protection (h). But freight was allowed on a cargo condemned as engaged in the coasting trade of the enemy, with papers purporting a destination to a neutral port, whence the voyage had been continued by the owner of the cargo; where it did not appear, that the owner of the ship was privy to the fraudulent prolongation of the voyage (i). But where a ship is sailing with a false destination, freight is forfeited, unless the owner of the ship can shew clearly, that he has been duped by the fraud of the master (k).

With respect to the mode of estimating the freight between the captor and the owner of the ship, the principle is, that it

77.

(c) The Theresa Bonita, 4 Rob. 236; The Isabella Jacobina, 4 Rob.

(d) The Atlas, 3 Rob. 304; The Emanuel, 1 Rob. 296.

(e) The Rebecca, Rob. 101; The Immanuel, 2 Rob. 186. As to the Immanuel and the Rose, quære; these seem to be cases in which the ship is confiscable.

(f) The Sarah Christina, 1 Rob. 242; The Mercurias, 1 Rob. 288. (g) The Oster Risoer, 4 Rob. 199.

(h) Th Jonge Clara, Edw. 371. (i) The Ebenezer, 6 Rob. 250. (k) The America, 3 Rob. 36.

is to be estimated on the footing of a reasonable mercantile profit. Where a ship is carrying on an ordinary trade, the charter party is the rule of valuation, unless it can be impeached as colourable and fraudulent. But a different rule is to be applied, where the trade is subjected to extraordinary risk and hazard, from its connection with the events of war, and the activity and success of the enemy's cruisers. The captor is not in all cases bound to the chartered price, though not impeached by the real prices of the market. When, by the events of war, navigation is rendered so hazardous, as to raise the price of freight to an extraorditary height, captors are not necessarily bound to that inflamed rate of freight (1). The expenses of the neutral master do not stand upon the same footing as freight, but are postponed to the expenses of the captor. On principle, a neutral ship can carry the property of the enemy, only on condition of being liable to be brought in for adjudication of her cargo, and would not be entitled to the expenses of being so brought in. Putting practice out of the question, which has established a more indulgent rule, it does not appear, that the neutral master would, on principle merely, be entitled to an indemnification for expenses so incurred. He is bound to know the condition annexed to his right, and to abide the consequences. A more favourable practice has obtained, under which his expenses are usually allowed; and this practice is sustained so far as it does not interfere with other rights equally protected by practice, and more strongly protected by principle. But it is not a claim, which the neutral master is entitled to urge against the captor, as a right equally original, and equally vested in him, and in the same manner as freight is invested, by the receipt of the cargo on board, and the performance of the contract of conveyance. When a cargo is condemned on further proof, the captor is as much entitled to his expenses, as if the cargo had been condemned

(1) The Twilling Riget, 5 Rob. 82.

in the first instance upon positive evidence, that it was the property of the enemy; and the captor's expenses are entitled to priority over those of the master (m).

A captor is entitled to freight on a neutral cargo in an enemy's ship, when he carries the cargo to its original port of destination. This rule is conformable to the text law (n), and the opinion of the most eminent jurists. Quod additur de vecturæ pretiis solvendis, says Bynkershoek (o), ejus juris rationem non adsequor. Satis intelligo, qui navem hostilem occupant etiam occupâsse omne jus, quod navi sive navarcho debebatur ob merces translatas in portum destinatum. Proponitur autem navem in ipso itinere fuisse captam. Eccur igitur capienti solvam mercedes? Si qui cepit navem, eam cum mercibus in locum destinatum perducere paratus sit, ejus juris rationem intelligerem, alioqui non intelligo. In the case of the Vryheid (p), all the considerations that could be applied to this question were fully canvassed; and it was there recognised as the true rule, that the captor who has performed the contract of the vessel, is, as a matter of right, and of course entitled to freight; although, if he has done any thing to the injury of the property, he may remain answerable for the effect of such misconduct or injury in the way of set-off against him. Hence, where a captor carried a cargo to Lisbon, the port of destination, and the consignee was put into possession informally, and apparently without a shadow of right by the hand of the Portuguese government; and the cargo was sold and the proceeds left in the hands of a Portuguese house, with consent of both parties, till sentence of final adjudication; it was held that the captor was entitled to freight, and that his interest was not forfeited, although the proceeds under these circumstances had not been paid into Court, so soon as

VOL. II.

(m) The Brummen Flugge, 4 Rob. 90.
(n) Consolato, c. 273, § 7, Coll. Mar. 4.
(0) Q. J. P. i. xiii.

(p) Lords, 23rd April, 1784.

M

they ought to have been in the regular course of practice (9). There are two rules on this subject equally general. The first is, that if goods are not carried to their original destination, within the intention of the contracting parties, freight shall not be due: and on this ground, that the contract not being completed either in substance or form, the speculation of the party has not been productive. The benefit of the contract is lost, and the party has to provide another vehicle to carry on the goods to the port of their destination. In some cases indeed it may happen, that the port to which goods are brought, may prove more beneficial, and afford a better market. But the Court does not enter into the minutia of such calculations, which would be attended with great trouble in the inquiry, and much uncertainty in the result. It takes the presumption arising from destination only, and founds upon it the general rule, that in such a case the claimant shall receive restitution of his goods without the burthen of freight. The other rule is equally general, that when the contract is executed by bringing the cargo to the place of destination, the captor, to whom the vessel is condemned, shall be entitled to the freight which has been earned. He stands in the place of the owner of the ship, and is entitled to the price of the services which have been performed in the execution of the contract. In some instances it may prove disadvantageous to the claimant; and it is certainly a clear inconvenience to be obliged to receive the goods under the process of a Prize Court, subject to the expenses which may have been incurred, or to the delay of further proof, instead of taking them with more facility in the course of their original consignment. But on the same principle, the Court declines on this side also to enter into a minute estimate of these circumstances, which must in every case branch out into infinite variety. It constructs a general rule on the same grounds of presumption,

(9) The Fortuna, 4 Rob. 278.