Imágenes de páginas
PDF
EPUB

SECTION 36.-FREIGHT.

THE "VROW HENRICA.”

HIGH COURT OF ADMIRALTY, 1803.

(4 C. Robinson, 343.)

Where a neutral vessel carrying enemy's goods is captured, the neutral master is, as a general rule, entitled to his freight, which is a lien on the cargo. On account of the peculiar circumstances of this case, the freight was postponed to the captor's law expenses.

This was a case of a Danish vessel taken on a voyage from Valencia to London. The ship had been restored with freight to be a charge on the cargo, which was condemned, but the proceeds not being sufficient to pay the freight and the expenses of the captor, it was prayed on the part of the neutral ship, that the priority of payment might be given to freight, on the authority of the Bremen Flugge, 4 C. Rob., 90.

Judgment,-Sir W. ScoTT:

"I have considered the cases which I directed to be looked up, and I see no reason to alter the opinion which I before expressed, that' freight is, in all ordinary cases, a lien which is to take place of all others. The captor takes cum onere: It is the allowed privilege of neutral trade to carry the property of the enemy, subject to its capture, and to the temporary detention of his vessel; and if the party does not prevaricate, or conduct himself in any respect with ill-faith, he is entitled to his freight. This is the rule which I am disposed to apply in all cases of neutral ships carrying on their ordinary commerce. It is the general rule, which may nevertheless be liable to be altered by circumstances. There is one class of cases to which I think it ought not to be applied-I mean the case of ships carrying on a trade between ports of allied enemies a trade which may be said to arise in a great measure out of the circumstances of war, though not altogether: I say not altogether, because such a trade exists in a limited degree in times of peace.

"In such a course of trade, although the Court has not altogether refused freight to the neutral ship, yet it may not think it unreason

able that the captor should, in preference, be entitled to his expenses, inasmuch as the nature of such a trade cannot but very much influence the judgment which he must unavoidably form of his duty to bring in the cargo for adjudication. In the present case, the voyage is not between the ports of allied enemies, but between the ports of two belligerents, from Valencia to London; that constitutes, I think, a sort of middle case, with respect to the obligation by which the captor might conceive himself bound to bring the cargo to adju dication. There might be a presumption, undoubtedly, that the property belonged to the enemy exporter; but there is a foundation also for presuming that it might belong to the consignee, and that it would not have been sent on a destination to this country, but under the protection of a license.

"It is, therefore, a case of a mixed nature, to which I shall apply a sort of a middle judgment. I will allow the captor his law expenses, and direct the other expenses to be postponed to the payment of freight."

THE "FORTUNA."

HIGH COURT OF ADMIRALTY, 1802.

(4 C. Robinson, 278.)

Freight is due to the captor, in virtue of the ship, which had been condemned, when the cargo (neutral) is carried by them to the place of its destination.

This was a case on petition of the captors, praying to be allowed freight for a cargo, which had been restored as neutral property. The demand for freight was founded on a suggestion, that the ship, which had been condemned, had actually performed the contract of the original affreightment, by carrying the cargo to the place of its destination.

[blocks in formation]

"This is the case of a ship which had carried a cargo of corn to Lisbon, the original port of destination. In such a case I apprehend the rule to be, that the captor is entitled to freight, and on the same principle, on which he would be held not to be entitled, where he does not proceed, and perform the original voyage. The specific contract is performed in the one case, and not performed in the other. It is the rule of practice laid down in the case of the Vreyheid, Lords, 1784, a case perfectly within my recollection as a case very deliberately considered at the Cockpit. It is conformable to

[ocr errors]

the text law, and the opinion of eminent jurists. Quod additur de vecturæ pretüs solvendis (says Bynkershoek), ejus juris rationem non adsequor. Satis intelligo, qui navem hostilem occupant, etiam occupasse 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, ceteroquin non intelligo.'

"In the case of the Vreyheid, all the considerations that could be applied to this question were fully canvassed, and it was then recognized as the true rule, that the captor who has performed the contract of the vessel is, as a matter of right, and de cursu, entitled to freight; although, if he has done anything to the injury of the property, or has been guilty of any misconduct, he may remain answerable for the effect of such misconduct, or injury, in the way of a setoff against him.

"The case then is reduced to a question, whether the captor, in this instance, has done anything to forfeit the right, which, under the general rule, he had acquired.

"Under the circumstances of this case, I am of opinion, that the captor has not forfeited the interest which he had acquired. "Freight decreed to the captor."

SECTION 37.-RECAPTURE-Rescue.

THE "SANTA CRUZ."

HIGH COURT OF ADMIRALTY, 1798.

(1 C. Robinson, 49.)

General rules of recapture and salvage.

The law of England, on recapture of property of allies, is the law of reciprocity.

This was the case of a Portuguese vesssel taken by the French, August 1, 1796, and retaken by English cruisers, on the 28th, after being a month in the possession of the enemy.

Judgment,-Sir W. SCOTT:

In the arguments of the counsel, I have heard much of he rules which the law of nations prescribes on recapture, respect

[ocr errors][ocr errors]

ing the time when property vests in the captor; and it certainly is a question of much curiosity to inquire what is the true rule on this subject; when I say the true rule, I mean only the rule to which civilized nations, attending to just principles, ought to adhere; for the moment you admit, as admitted it must be, that the practice of nations is various, you admit there is no rule operating with the proper force and authority of a general rule.

"It may be fit there should be some rule, and it might be either the rule of immediate possession or the rule of pernoctation and twenty-four hours' possession; or it might be the rule of bringing infra præsidia; or it might be a rule requiring an actual sentence of condemnation; either of these rules might be sufficient for general practical convenience, although in theory perhaps one might appear more just than another; but the fact is, there is no such rule of practice; nations concur in principle, indeed, so far as require firm and secure possession; but their rules of evidence respecting the possession are so discordant and lead to such opposite conclusions that the mere unity of principle forms no uniform rule to regulate the general practice. But were the public opinion of European States more distinctly agreed on any principle as fit to form the rule of the law of nations on this subject, it by no means follows that any one nation would lie under an obligation to observe it.

"That obligation could arise only from a reciprocity of practice in other nations; for from the very circumstance of the prevalence of a different rule among other nations, it would become not only lawful, but necessary to that one nation to pursue a different conduct: for instance, were there a rule prevailing among other nations that the immediate possession and the very act of capture should divest the property from the first owner, it would be absurd in Great Britain to act towards them on a more extended principle; and to lay it down as a general rule, that a bringing infra prasidia, though probably the true rule should in all cases of recapture be deemed necessary to divest the original proprietor of his rights; for the effect of adhering to such a rule would be gross injustice to British subjects.

"If I am asked, under the known diversity of practice on this subject, what is the proper rule for a State to apply to the recaptured property of its allies, I should answer that the liberal and rational proceeding would be, to apply in the first instance the rule of that country to which the recaptured property belongs.

"If there should exist a country in which no rule prevails, the recapturing country must then of necessity apply its own rule and

rest on the presumption that that rule will be adopted and administered in the future practice of its allies.

"I understand [the law of England] to be clearly this: That the maritime law of England, having adopted a most liberal rule of restitution on salvage, with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule and treats them according to their own measure of justice. *

[ocr errors]

[As Portugal had adopted the twenty-four-hour rule, that principle was applied to those ships recaptured during the time that rule prevailed in Portugal, and the rate of salvage decreed was the Portuguese rate, one-eighth to ships of war and one-fifth to privateers. The English rule allowed one-sixth to privateers.]

THE "CARLOTTA.”

HIGH COURT OF ADMIRALTY, 1803.

(5 C. Robinson, 54.)

Salvage on neutral property, retaken out of the hands of the enemy, not given-unless it can be shown by references to the ordinances or to the practice of the prize courts of the enemy, that the first seizure was made under such circumstances as would have exposed the goods to condemnation in the hands of the enemy.

This was a question of salvage, on the recapture of a Spanish ship and cargo from a French cruiser.

Judgment, Sir W. SCOTT:

"The question now to be decided is, whether salvage is due on the neutral property in this ship which has been recaptured out of the possession of the enemy. It certainly has not been the practice of this court to decree salvage under such circumstances generally; but, in consequence of the violent conduct of France during the last war, it was thought not unreasonable on the part of neutral merchants themselves, that salvage should be allowed.

*

"I am, therefore, not disposed to hold generally that neutral property recaptured from French cruisers shall be subject to salvage. The rule, so far as it can be considered a general rule, is rather to be laid down the other way. At the same time, if any edict can be appealed to or any fact established, by which it can be shewn that the property would have been exposed to condemnation

« AnteriorContinuar »