and looking to the probability of the fact arising from the local circumstances of the country in which the transaction originated, and the conduct of the enemy's government at that particular period; it did not even require further proof of the existence of an embargo (x). So, where a vessel, on her arrival, was placed under embargo, and the cargo which had been ordered, and was ready to be put on board, was warehoused, until the embargo was taken off, and was then shipped long after the expiration of the license; the ship and cargo were restored, although the government had ceased to grant licenses of that particular description. Where a party has, through his own laches, suffered his license to expire, he has no right, after government has changed its policy, to call upon the Court to give it new life. But where a license has been fairly acted upon, as far as the party was enabled to proceed, the Court is not called upon to put the transaction in motion, but to protect its progress; and such a case is fairly entitled to that protection which it would have derived from the license, at the time when it was put in operation and was impeded by extraneous circumstances. This is no novel principle; it is the application of the common and known rule of law nunc pro tunc. The Court will accept that as done now, which would have been done before, but for insurmountable difficulties. When the Court is satisfied of the identity of the transaction, and that all fair diligence has been used in order to its completion within the time prescribed, it will look no further. It will not call for the production of unnecessary and expensive proof (y). Where the party has used his best endeavours to fulfil his engagement, and has been prevented from finishing the transaction in due time, by the violence of the enemy, the Court will decree restitution, though the government may have refused to renew the license. The refusal of the government leaves the princi(x) The Goede Hoop, Edw. 327. (y) The Johan Pieter, Edw. 354. ple, upon which the Court is in the habit of acting, untouched; and, therefore, where the delay arose solely by the restraint imposed by the enemy, the property was restored (z). The indulgence extended to cases of expired licenses, embraces the difficulty of procuring ships, and all other insurmountable impediments, of whatever description; and the Court will not call upon the parties to negative an imputation of having used the license before, where there is nothing to raise a suspicion of such an abuse (a). Where, from the difficulty of procuring shipping, the license had expired, but the vessel had been despatched with a cargo in the expectation of procuring a fresh license, which had been actually granted and forwarded for the protection of the ship before its capture; restitution was decreed (b). Where a vessel, having arrived and delivered its cargo in this country, after the expiration of the license, was, upon this ground, captured on its return voyage; it was held, that if there had been any improper delay in the earlier part of the voyage, it was effectually purged by the arrival of the ship, and the delivery of its cargo. The vessel was restored, and the captors' expenses refused (c). (z) The Eolus, 1 Dod. 300. (a) The Sarah Maria, Edw. 361. (c) The Freundschaft, 1 Dod. 316. 270 CHAPTER VII. OF RANSOM. RANSOMS are contracts entered into at sea, whereby a captain engages for the release and safe conduct of the captured vessel, in consideration of a sum of money, which the master of the captured vessel, on behalf of himself and the owners of his ship and cargo, engages to pay and for the payment of which he delivers a hostage as a security (a). The contract is drawn up in two parts; of which the captor has one, which is called the ransom bill; the master of the captured vessel has the other, which operates as his safe conduct (b). The regulations of the French ordinances require, that the safe conduct to the ransomed vessel should be granted only for its return to its own port, unless the vessel be nearer to its port of destination. There are some other cases in which a passport may be granted to allow the vessel to continue its voyage. By the ordinance of 1692 it is provided, that a safe-conduct can only be granted for the time that is absolutely required for the vessel to reach its port. The ordinance of 1716 provides, that it shall not be granted for a longer time than six weeks (c). The port to which the ransomed vessel is bound to return must be expressly mentioned in the safe-conduct (d). The same ordinance required the captor to take as hostages one or two of the principal officers (a) Pothier, Tr. de Prop. i. 2, iv. § 127; et vide 4 Rob. 402. (c) Ibid. (d) Pothier, ibid. § 131. of the captured vessel. In practice one only was taken (e). The captor, on his return to port, was bound to report the facts to the officers of the Admiralty, and to deliver up the hostage, who was detained as a prisoner of war, until the ransom was paid (ƒ). The safe-conduct operates as a protection to the ransomed vessel from all ships of the country of the captor and its confederates, during the time therein expressed. It is binding upon the ships of the country of the captor, as given by the authority of its sovereign; and upon those of its allies, as an obligation necessarily implied in every confederacy (g). The master of the vessel binds himself for the payment of the stipulated sum; and his contract on their behalf is binding upon the owners of the ship and cargo to the extent of their respective interests. The master has an implied right to make contracts for the benefit of the ship and cargo; and the owners are bound by all contracts which he thinks fit to make for that purpose (h). In addition to the sum stipulated for ransom, they are also bound to pay for the maintenance of the hostage (i). If no hostage were taken, the ransom bill would be equally valid. But according to the practice of nations hostages are taken as a security, because otherwise it would be difficult to enforce the payment of ransom during the war (k). The ransom and charge for the maintenance of the hostage are in the nature of general average; for a ransom is in effect a redemption of the ship and cargo (1). The hostage has a right of action for the purpose of compelling the performance of the contract, which is necessary to set him at liberty, against the master and against the owners of the ship and cargo; for they are bound (e) Val. Tr. xi. 2. viii.-3, ii. Pothier, ibid. § 132. (ƒ) Val. Tr. xi. 2, xii.-3, iii. Pothier, § 133. (i) Val. Tr. xi. 2, xiii.—3, iv. Pothier, § 137. (1) Val. Tr. xi. 3, x. by all contracts made by the master for their benefit, and the claims of the hostage are a charge upon the ship and cargo (m). By the practice of the French Admiralty a French vessel, that had been ransomed, was arrested on its return, and detained until the owners of the vessel and cargo had procured the release of the hostage and paid his expenses, or given sufficient security for that purpose (n). The master cannot bind the owners beyond the value of the ship and cargo, and they may always discharge their liability by abandonment; in which case the master is personally liable for the payment of the ransom and expenses of the hostage (o). In case of the insolvency of the master, the captor is bound to release the hostage on payment of the sun, for which the ship and cargo are sold by public authority; although the sum specified in the ransom bill exceeds that amount (p). In the case of Kelly v. Grant, it was determined that the owners were not liable beyond the value of the ship and cargo. If they be delivered up in discharge of the ransom bill, that is an indemnity (q). In the case of Graham and Yates v. Hall, before the Delegates, on the 3rd of July, 1783, the Judge of the Admiralty first held, and on appeal four Civilians and three Judges unanimously determined, that the captain could not bind his owners beyond the value of the ship and cargo; and the owners having abandoned the ship and cargo, the Court dismissed the suit, which was brought by the hostages against the owners to compel the owners to redeem them, by paying the full amount of the ransom bill. But the Court of Admiralty and the Court of Appeal held, that by the delivery up of the ship and cargo the owners were discharged. The (m) Pothier, ibid. §§ 142, 143. (n) Ibid. § 144. (0) Val. Tr. xi. 3, xii. (p) Val. Tr. xi. 1, xv.—3, xiii. xiv. (9) Cited by Willes and Buller, Justices, Arguendo; Yates v. Hall, 1 T. R. 76. 80. |