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 minutiae 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,

(4) The Fortuna, 4 Rob. 278.

which it assumes on the other side; and decrees freight to be paid to the captor in the same manner, as if the goods had been delivered under the original consignment. It cannot be expected that the merchant in time of war should obtain possession of his goods seized, with exactly the same convenience as he would have done under the original consignment in time of peace; and when none of the accidents of war had intervened to interrupt the delivery. Where Dutch colonial produce, the property of British merchants removing their property at the commencement of war, was destined to Holland, under the compulsion of Dutch ordinances, with a final destination to England, either in specie or in proceeds, and was captured on board a Dutch vessel and brought to London; freight was held to be due to the captors, on the ground that the delivery was made ultimately at the port of original election (r). So where the goods were delivered at Plymouth (s). But property restored to foreign claimants, was held not to be liable to freight (t). And when, after restitution, to foreign claimants, they elected to sell the cargo in England; it was held, that the accidental advantages of such a sale would not support a claim for freight on the part of the captors (u).

Fourthly. Of costs, damages, and compensation. Where a seizure is justifiable, the captor in case of restitution, is entitled to costs from the claimant (v). Though restitution is given; a seizure is justifiable, where there is probable cause to suspect, that the ship or any part of the cargo is liable to condemnation; as where a ship is trading between the ports of the enemy (w), or between the port of one enemy and that of another, or between the ports of two belligerents (r); when (r) The Diana, 5 Rob. 67.

(s) The Vrouw Henrietta, 5 Rob. 75, (n).
(t) The Hoop, 5 Rob. 75, (n).

(u) The Vrouw Anna Catherina, 6 Rob. 209.
(v) Per Cur. The Speculation, 2 Rob. 296.
(w) Ibid.

(r) The Vrouw Henrica, 4 Rob. 343.

the ship's papers do not shew the neutral character of the ship or cargo: or where there is just ground for believing the papers to be false: or that the ship in its outward voyage has committed a breach of blockade; or is navigated with intent to commit such a breach, or has carried contraband on her outward voyage.

When English merchants had resorted to the expedient of protecting their trade against the enemy by false papers, which caused a variation between the shipment and the claim, by which further proof was rendered necessary; it was held that the captors ought not to be answerable for the expenses, into which they had been led by this expedient, and their expenses were directed to be paid (y). Where a ship and cargo belonged to the same claimant, who refused to accept restitution of the ship without the cargo; and further proof was ordered as to the cargo, and a commission of unlivery passed as of course, whereof the execution was stayed on the first intimation of objection on the part of the claimant; and the allowance of the captor's expenses was opposed, on the ground that the cargo had been deteriorated by unlivery; it was held, that no blame was to be imputed to the captors, and the expenses of further proof were allowed (z). Where in a case of justifiable seizure, charges were incurred in consequence of the subsequent misconduct of the captor, in conveying the vessel to his own port, which was not fit for its reception, those charges were deducted from the expenses allowed to the captor (a). Costs are very much within the sound discretion of the Court, with reference to all the circumstances that may be fairly collected respecting the conduct of the parties. Where a vessel having been captured and released by consent, was seized by a second captor, with a copy of the sentence of restitution on board, and a second time released without

(y) The Sarah, 3 Rob. 330.
(2) The Polly, 2 Rob. 371.
(a) The Principe, Edw. 70.

further proof; but it appeared, that every person of any station of authority with respect to the ship or cargo, was implicated in concerting fraud against the rights of the belligerent, though not with respect to the actual transaction, but to an ulterior voyage; and that the measures adopted for that purpose were the cause of bringing the case a second time to adjudication; the Court held, that it was justified in holding out this wholesome lesson to neutrals, that persons conducting themselves in such a manner should be made subject to the payment of costs (b). Where a cargo restored was taken by government by right of pre-emption, the captor's expenses were directed to be paid by government (c). Where an act of Parliament had passed vesting the custody of Dutch property in the ports of this kingdom, during the doubtful state of public affairs between England and Holland, in commissioners appointed by government; and a ship and cargo taken after the commencement of hostilities was carried into Bermuda, where the ship and part of the cargo was restored; but the remainder was ordered by the Court to be sent to England, and delivered to the commissioners, by whom it was received; it was held, that the captor's expenses would not include the charge of conveyance to England: and that the commissioners were liable to the neutral claimant in place of the actual captors, whom they had dispossessed. The merchant, whose goods were seized, had a right under the general law of nations to an adjudication of his property in Bermuda. The property having been conveyed to Europe under the application of a novel policy framed for the particular convenience of the British government, the expenses of that transmission, and every expense intended to secure it, must fall upon the party, for whose convenience this was done; and the neutral claimants must be protected. Therefore the government, having dispossessed the captors, took the property with all (b) The Eliza and Katy, 6 Rob. 185.

(c) The Resolution, 4 Rob. 166, (n).