THE BRUSSELS.22

(Prize Court of Belgium, 1919. Moniteur Belge, November 6, 1919, 5894.) See ante, p. 777, for a report of the case.

SECTION 4.-FREIGHT; LIENS.

THE VROW HENRICA.

(High Court of Admiralty, 1803. 4 C. Rob. 343.)

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. Adm. Rep. 90. *

The court expressed itself disposed to hold the rule laid down in The Bremen Flugge to be the proper rule; but as the matter had been again argued, it directed the cases cited to be looked into, and reserved the judgment for farther deliberation.

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

22 In the course of the decision in the principal case reference is made to The Midsland, Moniteur Belge, October 25, 1919, 5699 (1919), and The Gelderland, Id., October 30, 1919, 5772 (1919), translation, 16 American Journal of International Law, p. 129.

The headnote prefixed to The Midsland, as reported in Revue de Droit International et de Législation Comparée (3d sér.) T. I, 119 (1920), states the case sufficiently for present purposes:

"The condemnation of a neutral vessel pronounced by the Prize Court of a belligerent may form the basis for new rights to the advantage of the opposing belligerent who in his turn captures this vessel. In this case there exists on the part of the captor state no obligation to restore the vessel to its original proprietor when, as a result of its adjudication by an enemy Prize Court, it has definitively become enemy property. This is especially the case when, as a result of this adjudication, the vessel has been detained for a long time by the enemy authorities, and used by them for operations of war."

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 the 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 unreasonable, 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 adjudication. 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 ROLAND.

(High Court of Justice, 1915. 1 British and Colonial Prize Cases, 188.) Cause for condemnation of a part cargo of tobacco as prize. Sir SAMUEL EVANS (THE PRESIDENT), after dealing with several parcels of the Roland's cargo, in respect of which no appearance had been entered, and which he accordingly condemned, said: * *

*

Looking at the whole of the transactions disclosed by the documents put before me, I find that the whole of this property, fifty hogsheads of tobacco, was bought by Rudolf Hach & Co. for the joint adventure, and that one-fourth belongs to C. H. Suhling of Bremen. The result, therefore, is that one-fourth part of the fifty hogsheads is enemy property, and I decree condemnation of it accordingly. It follows also that the other three-fourths, belonging to neutrals, must be released to them. Now comes a further important question which will affect other cases as well, namely, as to whether the captors of the vessel are entitled as against the cargo which has been released-here three-fourths of the fifty hogsheads-to some freight.

The Crown claim to have a lien for the freight alleged to be payable in respect of the portion of the cargo released, and to have it paid. before the release. The argument on behalf of the Crown is that the

shipowners are, by the German commercial law, entitled to some freight in respect of this released cargo, although it was not, and cannot be, delivered in Germany at the port of destination, and that as captors they are entitled to what the ship has earned as well as to the ship herself. * *

Whenever a captor brought goods to the port of actual destination according to the intent of the contracting parties, he was held entitled to the freight, on the ground that the contract had been fulfilled, but in all other cases he was held not entitled to freight, although the ship might have performed a very large part of her intended voyage.

The rule was laid down in The Fortuna (1802) 4 C. Rob. 278, 1 Eng. P. C. 392, and The Vrow Anna Catharina (1806) 6 C. Rob. 269, 1 Eng. P. C. 552, and some exceptions which emphasized the rule were dealt with in The Diana (1803) 5 C. Rob. 67, 1 Eng. P. C. 424, and The Vrouw Henrietta (reported in a note to The Diana at page 75, anl in 1 Eng. P. C. at page 427).

I have been asked to abandon this rule where, according to the con tract, it appears that some freight might be recoverable where only part of the intended voyage has been covered. So far as I know, the rule has never been departed from; and in a collection of cases published in America in 1906 it is still regarded as the rule of International Prize Law. See Scott's Cases on International Law, pp. 63. and 632.

Evidence was given before me as to the German commercial law, to the effect that some freight, depending on distances, times, expenses, risks, etc., is recoverable by the shipowner or person entitled to the freight in certain cases (captures as prize included) where the whole intended voyage has not been performed. I have looked at a translation of the sections of the code referred to, and it seems to me that many serious questions of law might be raised in an action to recover such freight. I was not informed, and I do not know, whether such an action has ever been brought in Germany, in cases where ships have been captured-most probably, almost certainly, not.

The principle which gave birth to the rule referred to was not whether any and what sum could be recovered at law under the terms of the particular contract of affreightment. The rule was based on the, broad business ground that the goods had not been carried to the place where the contracting parties intended them to be delivered, and disposed of.

*

The old rule, as stated above, must, in my opinion, still be adhered to as part of the Law of Nations. This parcel of the cargo, namely, three-fourths of the fifty hogsheads, will therefore be released to the neutral owners without carrying the burden of any freight.

THE ANTONIA JOHANNA.

(Supreme Court of the United States, 1816. 1 Wheat. 159, 4 L. Ed. 60.)

Appeal from the Circuit Court for the District of North Carolina. This was the case of a Russian ship, captured on the 2d of June, 1814, by the privateer Herald, on a voyage from London to St. Michaels, and brought into the port of Wilmington, N. C., for adjudication. The ship was chartered by Messrs. Burnett & Co., a mercantile firm at London, for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any port in the Baltic, and thence to return to London, at the stipulated freight of one thousand guineas. The ship and cargo were libelled as prize of war, and, upon the hearing in the district court, that part of the cargo which was not claimed was condemned. The residue of the cargo, excepting one moiety of certain packages, claimed on behalf of Messrs. Ivens & Burnett, a mercantile firm at St. Michaels, was restored. The whole freight was decreed to be paid to the master, and charged exclusively upon the proceeds of the property condemned, and the moiety of the property restored to Messrs. Ivens & Burnett. From so much of this decree as respected the controversy between the captors and the claimants of the cargo, an appeal was interposed to the circuit court, where the decree was affirmed, and the cause was brought, by appeal from the latter decree, to this court.

* *

*

STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: *

The next inquiry is, as to the freight decreed to the master. As no appeal was interposed to the decree of the district court, allowing the whole freight for the whole voyage, the question, whether more than a pro rata freight was due (a question which would otherwise have deserved grave consideration), does not properly arise. The only discussion which can now be entertained, is, whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion that it was properly a charge upon the whole cargo. Although capture be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy's property on board, is a strictly justifiable exercise of the rights. of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in pœnam to the neutral for the losses which he may sustain by a lawful exercise of belligerent rights. It is the misfortune of the neutral, and not the fault of the belligerent. By the capture, the captors are substituted in lieu of the original owners, and they take the property cum onere. They are, therefore, responsible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners succeeding to the former pro

prietors. So far the rule seems perfectly equitable; but to press it further, and charge them with the freight of goods which they have never received, or with the burden of a charter party into which they have never entered, would be unreasonable in itself, and inconsistent with the admitted principles of prize law. It might, in a case of justifiable capture, by the condemnation of a single bale of goods, lead the captors to their ruin by loading them with the stipulated freight of a whole cargo.

On the whole, we are all of opinion, that the decree of the circuit court ought to be affirmed, except so far as it charges the freight upon the property condemned, and the moiety claimed by Messrs. Ivens & Burnett; and as to this, it ought to be reversed, and that the freight should be decreed to be a charge upon the whole cargo, to be paid by each parcel thereof, in proportion to its value.

Decree affirmed, except as to the freight.23

THE CARLOS F. ROSES.

(Supreme Court of the United States, 1900. 177 U. S. 655, 20 Sup. Ct. 803, 44 L. Ed. 929.)

The Carlos F. Roses was a Spanish bark of 499 tons, hailing from Barcelona, Spain, sailing under the Spanish flag, and officered and manned by Spaniards. She had been owned for many years by Pedro Roses Valenti, a citizen of Barcelona. Her last voyage began at Barcelona, whence she proceeded to Montevideo, Uruguay, with a cargo of wine and salt. All of the outward cargo was discharged at Montevideo,

28 It has been held, that the charter party is not the measure by which the captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, 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. But a very different rule is to be applied, when the trade is subjected to very extraordinary risk and hazard, from its connection with the events of war, and the redoubled activity and success of the belligerent cruisers. The Twilling Riget, 5 Rob. 82 (1804).

*

"Freight, then, is property insurable and collectible. It has value, although the right as against the freighter may be inchoate until delivery. As to the freighter the ship-owner is without redress, unless there be delivery in accordance with the contract, but as to an insurer or tort-feasor, there is a right to redress upon the happening of an interruption of the voyage. The decisions on this question in the United States do not go so far as those in England, but we lean to the doctrine of Sir William Scott and Dr. Lushington, as better applicable to the cases now before us, that when a vessel is actually under contract for a voyage from one port to another, thence to proceed to a third, she has such ‘a present existing title' in the freight money of the entire voyage as to authorize a recovery based upon the total freight money for the round trip." Per Davis, J., in Hooper, Adm'r, v. United States, 22 Ct. Cl. 408, 461, 463 (1887).