à port of one nation hostile to the captors, to a port of another nation equally hostile (d). (1)

Again, if a ship be taken and retaken, and carried by the recaptors into a port short of the place of destination, and the ship be there restored, before the cargo is restored, either by reason of a delay on the part of the merchant to claim the cargo, or of doubt or litigation upon his right to restitution, the Court [281] of Admiralty does not require the ship to wait the doubtful event of the claim of the cargo, in order to convey it to the place of destination, but gives the owners their whole freight, subject only to the deduction of salvage upon the amount of it (e). And this with great justice; for the capture is not imputable to the master ; the delay of obtaining restitution of the cargo is imputable to the merchant.

If the ship of an enemy, carrying the goods of a neutral be taken, and the captor conduct the ship and cargo to the place of destination, and so fulfil the contract of the master, the captor is entitled to receive the freight of the goods upon their restitution to the merchant ; but he is not entitled to this, if he take the ship to a

(d) The WILHELMINA, Carlson, 2 Rob. A. R. 101. notis.

(e) The RACE HORSE, White,

3 Rob. A. R. 101. and see the cases cited in the note at the end of that report.

(1) These decisions of the English Admiralty Courts have grown out of the incidents of the late and present war. The correctness of the doctrines as to the colonial trade, and the distinctions as to a war and a peace trade has been questioned, but I am not aware of any decisions of our own courts of law upon the subject.

different port, and do not perform the original voy

age (ƒ). (1)

(f) The FORTUNA, Tadsen, 4 Rob. A. R. 278, and the case of the VREYHEID, and also Bynkershoek, Quest. J. Pub. lib. 1. c. 13.

there cited. This is different from the old rule as laid down in the Consolato del mare, ch. 173.

When

(1) In cases of capture and condemnation of the cargo, the rate at which freight is to be allowed by the captors, is not necessarily to be taken at the price fixed in the charter-party, even where no fraud is imputed to the contract itself. by the events of war navigation is rendered so hazardous, as to raise the price of freight to an extraordinary height, captors are not bound to that inflamed rate of freight. When no such circumstance exists, when a ship is carrying on an ordinary trade, the charter-party is undoubtedly the rule of valuation unless impeached. The captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. The Twilling Riget, 5 Rob. Adm. Rep. 77.

In such cases if the value of the cargo condemned is not sufficient to pay the freight decreed as a charge on the cargo, and the expences of the captors, in ordinary circumstances the freight is entitled to the priority; though this general rule may sometimes be varied by the peculiar nature of the trade and the situation of the trading countries. The Vrow Henrica, 4 Rob. Adm. Rob. 343. But the expenses of the neutral master, when decreed to be a charge on the cargo, are not entitled to the same priority. The Bremen Flugge, 4 Rob. Adm. Rep. 90..

Though it is the allowed privilege of neutral trade to carry property of the enemy, subject to its capture and a temperary detention, and the captor takes it with the burthen of freight; yet if the party prevaricates or conducts himself with ill faith, he is not entitled to freight. For fraud and misconduct amount to a forfeiture. The Vrow Henrica, 4 Rob. Adm. Rep. 343.

7. As it may frequently happen that goods brought in specie to the place of destination, may be so deteriorated during the course of the voyage, as to be of no value to the merchant, it is important to consider, whether the merchant is bound to pay the freight under

- If a ship captured be lost by the negligence of the prize master, where the ship is innocently employed, and a part of the cargo only saved, which is insufficient to pay the freight, the Court will not only decree restitution of the value of the ship, but also of the full freight against the captors personally. The Der Mohr, 3 Rob. Adm. Rep. 129. 4 Rob. Adm. Rep. 314.

If a ship be condemned, and the cargo acquitted as neutral property, and afterwards is carried by the captors to its port of destination, they are entitled to the freight. The Fortuna, 4 Rob. Adm. Rep. 278. 5 Rob. Adm. Rep. 67. But if the goods are not carried to their original destination, within the intention of the contracting parties, freight shall not be due or paid to the captors. This is the general rule, but it may admit of an exception. As where goods have been carried not to the port of destination, but to the country where the owner lives, and to which the proceeds were ultimately destined; but by the regulations of the country where the goods are shipped, they cannot be cleared out directly for the port of ultimate destination there, as the intention of the parties is completely effected in the manner they would have elected, if at perfect liberty so to do, freight has been adjudged to the captors. The Diana, 5. Rob. Adm. Rep. 67.

And if the cargo be not carried to the port of destination, no freight is due to the captors, although the cargo has been sold very advantageously in the port of the capturing power, to which she has been conveyed. Vrow Anna Catharina, 6 Rob, Adm. Rep. 269.

such circumstances; or, to state the question more correctly, whether he is bound to receive the goods [282] or is at liberty to abandon them for the freight.

For we have already seen, in the case of an East-India ship, that the company (the merchants) were held liable to pay the freight of a quantity of pepper delivered to, and received by them, although greatly damaged by a peril of the sea; and that the owners were not answerable for the expense incurred in endeavouring to remove the injury occasioned by the salt water (g), And in another case that will be mentioned hereafter, the merchant was held liable to pay the freight of tobacco, saved from shipwreck, and accepted by him, although part was so much damaged as to be of no value (h).

Upon this question as to the right of the merchant to abandon his goods when brought to the place of destination, and by so doing to discharge himself from the freight, different doctrines and opinions have prevailed, and there is no judicial decision in our books: although in some cases between the merchant and his insurer, it has been admitted that the freight was payable, notwithstanding the goods were so much damaged, that their value fell short of its amount (i). But it is necessary to distinguish the causes, from which the deterioration may have proceeded. If it have proceeded from the fault of

the master or marinèrs, the merchant is entitled [283] to a compensation; and may recover it by an action at law against the owners or master ;

(g) Hotham & others v. East-India Comp. Doug. 272. ante, ch. 1. of this part, sect. 14.

(h) Lutwidge & another v. Grey others, post. sect. 13. of this

chapter.

(i) Boyfield v. Brown, 2 Stra. 1065. and Mason v. Skurry, Park, 116. Marshall, 143.

but, if he has received the goods, he cannot insist upon the damage as a defence to such an action brought against himself for the freight, even although he has offered to return them (k). On the other hand, if it have proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of a ship; the merchant must bear the loss, and pay the freight; for the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event. And to this point there is a direct authority in the treatise called the Guidon. The author, having mentioned several cases of abandonment, as between the merchant and the insurer, goes on thus: "In like manner, the merchant cannot abandon the goods "herein before mentioned (viz. fruits, salt, corn, victuals, "&c.) to the master of the ship for his freight, if the "deterioration has proceeded from natural decay; or " from the great diminution of price, that takes place "at the end of particular seasons, as in figs,

grapes, and herrings after Easter; or by rea- [284] "son of an over-abundant supply of the market, "as in corn, wine, or salt; although in salt a different "practice formerly prevailed, which is contrary to reason, if the option has not been reserved by an express "clause in the charter-party" (4).

(k) Milles & others v. Bainbridge others, Guildhall, Decm. 20th, 1804, before Lord Ellenborough, Ch. J.-His Lordship intimated, that if the merchants had refused to receive the cargo on the ground of damage so occasioned, the point would admit of some doubt. In such a case the merchant would

derive no benefit whatever from the conveyance, nor would the master have fulfilled his engagement, according to the terms of the bill of lading: Quare, therefore, whether the master could oblige the merchant to pay the freight? See Basten v. Butter, 7 East. 479. (1) Guidon, chap. 7. art. 10,