Part IV. [of the sea before her arrival at her first destined port. It was decided that nothing was payable (a). In all these cases the court thought, that, according to the true construction of the contract, the payment was made to depend upon an event which never happened.] 11. Of the Jurisdiction exercised by the Court of Admiralty respecting the Freight of Goods condemned as Prize. The Courts of Admiralty, where the question of freight comes collaterally before them in the case of captured ships ordered to be restored, take an equitable view of the case, without assuming to make a new contract between the parties, they presume their consent to such a contract as equitably belongs to a new state of things, not originally within their contemplation. Accordingly, where a ship having been captured at the very mouth of the port to which she was destined, was afterwards retaken and sold for salvage, but the ship and cargo, upon a suit in the Admiralty, were ordered to be restored, the court directed a moiety of the freight to be paid, though the merchant insisted that none was due, because the whole voyage had not been performed; while the owner claimed the whole freight, because he had reached the mouth of the river (b). If in a time of war a neutral vessel, carrying goods belonging to the subjects of one of the belligerent powers, be taken by those of the other (in which case the goods are lawful prize, but the ship is to be restored), the captor 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 a captor, by his act of seizure, has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the (a) [Gibbon v. Mendez, 2 B. & A. 17.] By a charter-party, the vessel was to sail from London with a cargo for Kingston, or any other port in Jamaica; and, having discharged the same, receive on board a cargo from thence, or from a port on the Spanish Main if required, and deliver the same at a port in the United Kingdom-freight to be paid, 2507. in ten days after sailing from Gravesend, and 7507. more in two months after a right delivery of the homeward cargo at her port of discharge in the United Kingdom, provided she should be required to proceed to one port only in Jamaica, and 25. more should she be required to go to two or more ports in that island; and in case the vessel should be ordered to the Spanish Main, 47. per day was to be paid for every day after the twenty-sixth day after her arrival at Jamaica, until despatched from her loading port. Demur rage, 1007. per month, or in proportion for a less period, payable on settlement of the hire of the vessel. The vessel sailed from London, and discharged a portion of her outward cargo at Kingston, and the residue at another port in Jamaica, and sailed thence to a port in the Spanish Main to receive a homeward cargo, and there remained one hundred and thirty-nine days beyond the stipulated twenty-five days.Held, that the 41. per day was not payable until two months after the delivery of the homeward cargo at the ship's port of discharge in the United Kingdom. Crozier v. Smith, 1 Scott, N. R. 338. (b) The Friends, 1 Edw. Ad. Rep. 186. As to Prize Courts, see ante, p. 16, note (d). payment of the full freight (c). This, however, is to be understood Chap. 9. of such goods only as a neutral vessel may convey by the law of nations, and of a trade ordinarily allowed to the neutral nation by the government to whose subjects the goods belong. If the goods are contraband according to the law of nations, such as naval stores, &c., no freight is to be paid by the captor (d); and this, whether the master know the quality of the goods or not; for, in time of war, he is bound to know the contents of his cargo, and cannot be permitted to aver that he was ignorant of them (e); nor is any freight to be paid by the captor if the ship is employed in bringing the produce of the colony of a belligerent power to the mother-country (ƒ), or in the coasting trade between one port and another of the same country (g), or in carrying the goods, even of neutrals, directly from the mothercountry to its colony (h), or from one hostile nation to the colony of another hostile nation in alliance with it (i), if these trades were not, in time of peace, open to the neutral nation whose ship is so employed, because, in all these cases, it is evident that the trade is open in the time of war merely for the convenience of the belligerent power, and to relieve that power from a part of the difficulties occasioned by the war; and the neutral vessel so employed thereby furnishes direct assistance to the belligerent power. But as trade from a port of one nation to a port of another is in general open to all countries, freight is to be paid to the owners of a neutral ship employed in carrying the goods of an enemy from a port of one nation hostile to the captors, to a port of another nation equally hostile (k). 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 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 (1). 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, (c) The Copenhagen, 1 Rob. Ad. Rep. 289. The Bremen Flugge, 4 Rob. 91. The Vrow Henrica, 4 Rob. 347. And the amount of freight is usually measured by the terms of the charter-party: but see the Twilling Riget, 5 Rob. 85. (d) The Mercurius, 1 Rob. Ad. Rep. 288. (e) The Oster Risoer, 4 Rob. Ad. Rep. 199. (f) The Rebecca, 2 Rob. Ad. Rep. 101. See also the American, id. vol. 3, p. 36. (g) The Emanuel, 1 Rob. Ad. Rep. 296, and the Mercurius there cited. (h) The Immanuel, 2 Rob. Ad. Rep. 186; (i) The Rose, 2 Rob. Ad. Rep. 206. (1) The Race Horse, 3 Rob. Ad. Rep. Part IV. 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 different port, and do not perform the original voyage (a)—not even if the proprietor of the cargo afterwards disposed of it at the place to which the ship may be carried (b). The receipt of freight by the obligee of a bottomry bond is in law a receipt of it by the shipowner, by whose master the bond was given to raise money for necessary repairs (c). (a) The Fortuna, 4 Rob. Ad. Rep. 278; the Treyheid; Bynkershoek, Quest. Jur. Pub. lib. 1, c. 13, there cited. This is different from the old rule, as laid down in the Consolato del Mare, ch. 173. (b) Vrow Anna Catherina, 6 Rob. Ad. Rep. 269. The Diana, 5 Rob. 71. The Etrusco, 5 Rob. 69. But see the Race Horse, 3 Rob. 101; the Hamilton, ib. 107. (c) Benson v. Chapman, 8 C. B. 950. CHAPTER X. OF STOPPAGE IN TRANSITU; AND HEREIN. SECT. 1. What it is, p. 401. 2. In what cases, generally, Goods may be Stopped in Transitu, p. 404. 1. What Stoppage in Transitu is. [WHEN goods have been shipped upon credit, and the consignee has become a bankrupt, or failed (d), the law, in order to prevent the loss that would happen to the consignor by the delivery of them, allows him, in many cases, to countermand the delivery, and, before or at their arrival at the place of destination, to cause them to be delivered to himself, or to some other person for his use. usually called Stoppage in Transitu. This is This practice was first sanctioned and established in the Court of Chancery, by dismissing claims of the assignees of a bankrupt against a foreign merchant or his agent (e), and in one case by a decree in favour of a foreign merchant, plaintiff in that court, the master having refused to deliver the goods either to him or to a trustee for the creditors of the consignee (f). Such a court, however, will not, by injunction, prevent the sailing of a ship in order to enable a consignor to resume his goods, which might be highly inconvenient to other shippers and persons, but leave him to his remedy at law, if the goods be improperly converted (g); for this right of stopping in transitu has been frequently recognised and carried into effect by] (d) See as to the meaning of "failure" and "insolvency," as applicable to the right of Stoppage in Transitu, Biddlecombe v. Bond, 4 A. & E. 332; Vertue v. Jewell, 1 Campb. 31; Newsom v. Thornton, 6 East, 17; Dixon v. Yates, 5 B. & Ad. 315. Mr. Smith, in his Compendium of Mercantile Law, p. 550, adverting to these cases, expresses an opinion that the term insolvency (when used with reference to this branch of the law) is satisfied by general inability evidenced by stoppage of payment. See Bilson v. Crofts, L. R. 15 Eq. 314. The vendor may also of course refuse to deliver. -Dixon v. Yates, 5 B. & Ad. 313. Gibson (e) [In the case of Wiseman v. Vandeput, 2 Vern. 203. Snee v. Prescott, 1 Atk. 245.] See Gibson v. Carruthers, 8 M. & W. 321. per ABINGER, C. B. (f) [D'Aguila v. Lambert, Amb. 399. It does not appear by the report of this case who the defendant was.] (g) Goodhart v. Lowe, 2 Jac. & W.3 19.1 See Schotsman v. Lancashire, &c., Railway Co., 36 L. J. Ch. 361. Chap. 10. Part IV. [the Courts of Law. It is founded on principles of natural justice and equity. But the law of England is in this respect more favourable to the transfer of property, the great subject of commerce, and less attentive to the interest of the seller of goods, than the ancient Civil Law, or the modern law of many European nations, which is chiefly founded on the Civil Law (a). For the Civil Law did not in general consider the transfer of property to be complete by sale and delivery alone, without payment or security for the price, unless the seller agreed to give a general credit to the buyer for it, but allowed the seller to reclaim the goods out of the possession of the buyer, as being still the seller's own property (b). And by the general law of France, in the case of insolvency, "The seller, who has sold a thing, and still lies out of the money which he was to have for it, if he finds the thing that he sold in the hands of the buyer, may seize on it, and he is not obliged to share it with the other creditors of the buyer. And it would be the same thing-nay, and with much more reason-if the owner of the thing had given" (delivered) "it to the debtor to sell for him" (c). Whereas, by the general law of England, when goods have been delivered into the actual or constructive possession of the buyer, they cannot be reclaimed (d), although, if found remaining unsold in the hands of an insolvent factor, they may be reclaimed, because a delivery to a factor does not of itself alter the property. The law of England, however, will lend its aid to carry into effect the more enlarged rule of equity, which exists in another country, upon a transaction taking place there, as appears by the following case By the law of Russia, "If, in case of unpaid debts or bankruptcies, anybody has reason to suspect that the debtor or bankrupt has any thoughts of making the creditor lose, and therefore loadeth on board of ship or vessel goods or cargo; in such a case the creditor is to give notice in town (e) to the head Judge of the Court (in] (a) [Emerigon, speaking of the assignment of a bill of lading, says, "Mais ces sortes de cessions déferent au cessionnaire un simple droit ad rem, qui lui donne pouvoir de requérir la délivrance des effets indiqués, sans le mettre en possession effective de la chose même. Ainsi, que jusqu'a ce que la tradition réelle ait été fait dans un temps utile au porteur du connoissement, il n'a qu'une action personnelle, qui est subor donnée aux droits du tiers. Je crois donc qu'une pareille cession ne sauriot nuire, ni au privilège du vendeur primitif, non payé du prix, ni au privilège du donneur à la grosse, ni aux droits de la masse des créanciers. Telles sont nos régles. Les connoissement n'a jamais été considéré parmi nous comme un papier négociable. Le transport du titre est une tradition feinte, qui s'évanouit par la faillite ou l'insolvabilité notoire du cédant."-Emerigon, tom. 1, p. 319, quoted by Dr. Robinson in a note to the Constantia, 6 Rob. Ad. Rep. 325.] (b) [Quod vendidi, non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine datum, vel etiam fidem haubuerimus emptori sine ulla satisfactione.-Dig. 18, 1, 19. See also id. eod. tit. 53, and Dig. 19, 1, 13, 8, & 14, 4, 5, 18.] (c) [Domat's Civil Law, book 4, tit. 5, sec. 2, art. 3. See also the notes of the same author on that article, and on book 3, tit. 1, sec. 5, art. 3. Where it appears that by the custom of some parts of France, a person who has sold goods, expecting to be paid immediately, may, if he is not paid, retake the goods even out of the possession of a subsequent purchaser.] (d) [In case of a sale of land, if the purchase money is not paid, the Court of Chancery considers the purchaser as a trustee for the seller.-Pollexfen v. Moore, 3 Atk. 272; and see Blackburn v. Gregson, 1 Brown's Rep. in Chancery, 420.] (e) [Quære, whether this should not be "towns" or "a town?"] |