the vessel, had the same right, and was entitled to freight (g). When the Crown takes to itself the rights of one of the parties against the other, so far as they arise out of the same individual transaction, it is to the same extent bound by the obligations of that party towards the other: and therefore, where a sum had been advanced on bottomry to enable the ship to continue its voyage; it was heid, that without breaking in upon the principle that the Crown is not to regard latent remote claims of third parties arising on foreign transactions, the sum of money so advanced ought to be deducted from the freight (r). Where a ship was stopped at the mouth of the port of her destination by a blockading squadron, and blown out to sea and captured, and then recaptured and carried by the recaptors to a distant port, and there sold at a great loss to pay salvage; it was held, that as the incapacity to complete the voyage could not be exclusively attributed either to the owner of the ship or to the owner of the cargo, since the ship could not have entered the interdicted port in ballast any more than the cargo could have entered it in any other vehicle, equity required that the loss should be divided, and the payment of a moiety of the freight was decreed. Where a ship chartered to Lisbon was captured on her return voyage off Falmouth, and afterwards recaptured and carried into Falmouth, and the cargo was not decreed to be restored till some months after the restitution of the ship, which sailed without the cargo, the ship was held entitled to the whole freight, subject to a deduction of one-eighth for salvage (s). Where a ship bound from Liverpool to Halifax and the West Indies and back was captured, and recaptured and brought back to Plymouth, and it appeared that by the terms of the charter party no freight was to become due till the ship arrived at Halifax; it was held, that both upon principle and practice, and from the fair sense of the particular (9) The Prosper, Edw. 72. (r) The Constantia, Edw. 232. (s) The Racehorse, 3 Rob. 101; The Martha, ibid. (n). contract between the parties, no freight was due (t). Where a ship and cargo on a voyage to London was captured and carried into Plymouth, and entitled to restitution because protected by a license, the ship was directed to be restored with freight and expenses on her arrival at the port of her delivery (u). Where a ship justifiably captured, but not liable to condemnation, was lost by the culpable negligence of the prize master; it was held, that if the loss had happened by accident only in bringing in, the captor, having made a justifiable seizure, would not have been liable to any restitution, either for the freight or for the ship; but in this case the freight being as much a part of the loss as the ship, he was bound to answer equally for both, since by taking possession of the cargo he had deprived the claimant of the fund to which his security was fixed. Restitution in value of the whole freight was decreed (v). Where a ship is decreed to be restored with freight, and the cargo is of a perishable nature, the Court will decree the sale of so much of the cargo as is necessary to discharge the freight (w). Where restitution of the ship and cargo was decreed without any fault on the part of the captor, and the value of the cargo was insufficient to pay the freight, it was held that the captor was not liable (x). Where a ship was restored with freight, and a commission of unlivery was taken out, and the cargo was restored before the unlivery was completed, and the master refused to carry on the cargo without a new agreement; it was held, that the act of unlivery was binding on the parties, and must be taken to be decisive in producing a complete dissolution of the contract, and that freight was due notwithstanding the refusal (y). Where a ship in dis (t) The Hiram, 3 Rob. 180. (u) The Wilelmina Eleanora, 3 Rob. 234. (w) The Vrouw Margaretha, 4 Rob. 304 (n). (y) The Hoffnung, 6 Rob. 231. 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, 2 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. (ƒ) 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. |