OR VOLUNTARY ACCEPTANCE OF GOODS.

377

without an express stipulation to this effect, retain it, but the shipper may recover it back. Pitman v. Hooper, 3 Sum. 50.

A neutral ship, engaged in transporting provisions for the use of the army of a belligerent, which army is in a neutral country, and engaged in a distinct war with a third belligerent, is not entitled to freight. The Commercen, 2 Gall. 261.

Where a vessel has been captured on her voyage, and condemned at an intermediate port, and a part of her cargo has been restored, and sold at the same port, no freight is due for the cargo so restored. Sampayo v. Salter, supra.

Freight pro ratâ can only be demanded upon the ground that there has been a voluntary receipt of the goods at an intermediate port. Captors are not generally entitled to freight, on the capture of neutral property on board of an enemy's ship; unless the goods. are carried to the port of destination with the intent of the contracting parties. But, if the property, or the proceeds of it, be ultimately destined to the place where the captors carry the ship, freight is due to the captors. The Ship Ann Green and cargo, supra.

A neutral carrier of enemy goods is entitled to freight. But if he be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy, in carrying on the war, he will thereby forfeit all title to freight. 1 Wheat. 382; 2 Gall. 387, supra.

To this qualification of the general rule, may be added several others: such as, the carrying of contraband goods to the enemy; the engaging in the colonial or coasting trade of an enemy; the spoliation of papers;

378

UNNEUTRAL CONDUCT OF CARRIER DEBARS

and the fraudulent suppression of enemy interests; any of which may work a forfeiture of freight.

So a neutral vessel, laden with a cargo of provisions, exported from the enemy's country, with the avowed purpose of supplying the army of the enemy, although destined to a neutral port, is not entitled to freight from the captor; and it is immaterial, that the enemy is carrying on a distant war; and that the provisions were intended for the supply of his troops in that war; and that the neutral was a subject of one of the allies of that war.

If the interdiction of commerce be with another country than that of the ship's destination, or after her departure, the case is not within the purview of the French Ordinance; and Emerigon is of opinion that insurances" are not in any way altered by such interdiction." Page 428.

Sometimes the stipulation for freight is for a gross sum for the round voyage out and home. In the Mary (1 Spr. 17), Judge Sprague held, that in such case, as the principal object of the voyage was to obtain a return cargo, and a general average had occurred on the outward passage, the whole freight for the round voyage should contribute.

As to a question of freight upon a transhipping of prize goods, between the ship and cargo and the transhippers, reference may be had to the Copenhagen, (1 Ch. Rob. 289); for the allowance or recovery of freight. in case a voyage be not completely performed, to the Emanuel, (ibid. 296); the Rebecca, (2 ibid. 101 m.); the Atlas, (3 ibid. 304 n.); the Allegoria, (4 ibid. 202 n.); the Ebenezer, (6 ibid. 256); the Friends, (Edw. 246); and the Commercen, and the Ann Green (supra).

HIS LEGAL RIGHT TO FREIGHT.

379

Where a demand for freight was made by a ship under embargo against a cargo not under the embargo, but which had been unloaded to be otherwise forwarded, Sir W. Scott thought the cargo not liable to the demand; for the cargo, having been brought out of its course, detained on account of the ship, and finally compelled to procure other conveyance to its market, should not be subjected to a payment of freight. The Werldsborgaren, 4 Ch. Rob. 17; and The Isabella Jacobina, ibid.

77.

After capture, restitution, unlivery and actual separation of carrier ship and cargo, such separation becomes legal by the act of unlivery, if authorized by a court, and dissolves the original contract, which cannot be revived by the demand of the owner of the cargo to reload and proceed. The Hoffnung, Rask, 6 Ch. Rob. 232.

By capture, the captor succeeds to the rights of both ship and cargo. If he then, after a decree of restitution, shall invoke the authority of a court, take out a commission for unlivery and unload, the contract is thereby dissolved; the vessel may proceed at once without reloading; and, although detained for a while after, such temporary detention will not revive the

contract.

Generally, bills of lading are transferable by indorsement, subject to stoppage in transitu in case of bankruptcy, if that might be seasonably and properly asserted.

In Saunders v. Vanzeller, 4 Ad. & El. (N. R.) 260, a ship-owner brought suit against an indorsee of a bill of lading, who had demanded and received the goods under and by virtue of such bill of lading; and it was

380

66

BILLS OF LADING; THEIR USE AND EFFECT

decided that the action against the indorsee of the bill of lading who had accepted and taken the goods, without payment of freight, would not lie; not on the original contract, because the defendants were not parties to it; not on an implied contract, because the law raised no promise, by implication, against a consignee or indorsee of the bill of lading;" thus making it to turn, as was said, "on a legal distinction, narrow but well defined, between a fact, from which the law implies a promise; and evidence tending to prove a fact, from which, when proved to the satisfaction of a jury, a promise is implied by law."

C. J. Abbott said: "A transfer of the property is, however, very different from a transfer of the contract."

And C. J. Shaw, in 8 Gray, 298, supra, said: "In law, the original contract of the carrier with the ship-owner, is like any other right or chose in action; it may convey an equitable interest but cannot transfer the legal right of action."

In Abbott on Shipping, p. 337, is this text: "In the case of an express contract, evidenced by a bill of lading, the action may be brought by the shipper with whom the master contracted, or by the owner of the goods, whose agent the shipper was.

In 1857, Blanchard et al. v. Page (8 Pick. 281), the judicial examination of the authorities and doctrines applicable to bills of lading, by the court, was quite elaborate and thorough, as to the right of the parties named therein; and C. J. Shaw stated the conclusion, to which the court arrived, to be this: that a carrier may be sued by a shipper named in a bill of lading, even though the shipper had neither a general, nor a special property in such bill of lading.

AS ORIGINAL CONTRACTS.

381

Besides referring to the cases of Lickbarrow v. Mason, and Saunders v. Vanzeller (supra), reference was also made to the cases of Cock v. Taylor, 13 East, 399; Moore v. Wilson, 1 T. R. 659; Roberts v. Holt, 2 Show. 443; Strong v. Hart, 6 B. & C. 160; Domett v. Beckford, 5 B. & Ald. 521; Sargent v. Morris, 3 ibid. 277; and Joseph v. Knox, 3 Camp. 320. The discussion and objections turned chiefly upon agency, on the relative position of agent and principal, or legal relation of consignor and consignee; yet the conclusion which the court reached, as declared by C. J. Shaw, was, that the original shippers and consignors in the bill of lading, by force of the original contract for safe carriage, might maintain an action against the ship-owners, for damage to the shippers' goods; and the ship-owner cannot prevent the shipper from recovering such damage, as may be the direct and natural consequence of a breach of the contract.

I am not aware that any of the more recent judicial decisions in admiralty do, in any way, conflict with the common law decision by the Supreme Court of Massachusetts. In 2 Spr. 51, Swett v. Black, Judge Sprague entirely assents to and adopts that exposition of the law; and certainly the admiralty decisions, reported in Browning and Lushington for 1863-4, to wit: the St. Cloud (p. 4); the Tigress (ibid. 45); the Cargo ex Galam (ibid. 167); the Norway (ibid. 266, 377, and 404); and the Helene (ibid. 415), are all substantially in harmony, and it may be taken to be settled, that, when a consignee interposes no objection, the consignor is entitled by law to sue the ship-owner for damage.

But a grave question may arise, how far it would be competent for a mere assignee, or consignee even, to