11. The Courts of Admiralty, where the question of freight comes collaterally before them in the case of captured ships. ordered to be restored, will exercise a larger equity than belongs to a Court of law; without assuming to make a new

from the place of shipwreck by the owner, he must pay a pro rata freight to the place of shipwreck. Coffin v. Storer, 5 Mass. R. 252.

So, where a vessel was chartered "for a voyage from Portland to sea, and take a cargo from on board the British Brig Fountain, and proceed with the same to one or more ports in the West Indies, and from thence to Portland, where she is to be discharged, the dangers of the seas excepted," at a stipulated price per month payable in thirty days after her return to Portland; it was held, that the voyage out and home was one entire voyage; and, as the vessel was lost and never returned to Portland, no freight was due. Blanchard v. Buckman, 3 Greenleaf, R. 1.

But, on the other hand, wherever an outward voyage and homeward voyage are spoken of in the contract, as distinct, the freight becomes due upon the performance of each voyage; and any other expressions descriptive of a voyage or adventure, consisting of several distinct and separate voyages or passages, are within the same reason, and governed by the same rule. Coffin v. Storer, 5 Mass. R. 252.

As, where there was a charter-party of a ship on a voyage from Boston to Savannah, and thence to the West Indies, and from thence to Boston, with liberty to return from the W. Indies to any port of the U. States and thence to Boston, where the ship was to be discharged, for the freight or hire of a certain sum per ton per month, and so in proportion for a less time, as the ship should be continued in service, to be paid in 30 days after the ship's return to Boston; and the ship performed her outward voyage and a homeward voyage to Savannah, and on her return to Boston was captured and destroyed by the enemy; it was held, that the freight was due up to the ship's last discharge at Savannah. The Court thought, that the time of payment, though limited to the return of the ship, was not intended to create a contingency upon the arrival of the ship, without which no freight was due. Brown v. Hunt, 11 Mass. R. 45. The same doctrine was adopted in the subsequent case of Locke v. Swan, 13 Mass. R. 76. There, the ship was chartered on a voyage from Boston to the Coast of Africa, and back to the U. States, where she was to be discharged, at a certain sum per month, and at that rate for less time, as she should continue in the service, payable in 30 days after the ship's return to Boston. She touched and traded at several places on the coast of Africa, and was captured by the enemy while returning to the U. States, and lost; it was held, that the hire was due from the inception of the voyage until the expiration of half the time spent at the last place visited by her on the coast of Africa for the purposes of trade. The voyage was therefore considered as divisible. See also Havelock v. Geddes, 10 East, R. 555.

A question has often arisen, in cases where the ship and cargo have been separately insured, and abandoned to the respective underwriters, as to the party to whom the accruing freight ought to be paid, whether to the underwriters on the ship, or on the freight. That question, however, is now at rest in England; and it is settled, that the underwriters on the ship in such case are entitled to the whole freight earned on the voyage, and which at the time of abandonment is in the course of being earned. Davidson v. Caze, 2 Brod. & Bing. 379; S. C. 5 M. & Selw. 79. In America, the decisions seem to lead to this result; - that the abandonment leaves to the underwriters on freight a pro rata freight for the portion of the voyage actually performed at the time of the abandonment, and to the underwriters on the ship all the freight subsequently earned. United Ins. Co. v. Lenox, 1 John. Cas. 377; S. C. 3 Caines, R. 251; 2 John. Cas. 443; Leavenworth v. Delafield, 1 Caines, R. 578; Davy v. Hallet, 3 Caines, R. 20; Livingston v. Columbian Ins. Co., 1 John. R. 438; Marine Ins. Co. v. United Ins. Co., 9 John. R. 186; Coolidge v. Gloucester Ins. Co., 15 Mass. R. 341 ; Simards v. Union Ins. Co., 1 Wash. Cir. R. 443. See Splidt v. Bowles, 10 East, R. 279; Center v. The American Ins. Co., 7 Cowen, R. 564.

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 [† 471] 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 (a).

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 payment of the full freight (b). This, however, is to be understood 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 (c); 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 (d); 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 (e), or in the coasting trade between one port and another of the same country (f), or in carrying the goods, even of neutrals, directly from the mother country to its colony (g); or from one

(a) The Friends, 1 Edw. Ad. Rep. 186. (b) The Copenhagen, Mening, 1 Rob. Ad. Rep. 289.

(c) The Mercurius, Meincke, 1 Rob. Ad. Rep. 283.

(d) The Oster Risoer, Jurgenson, 4 Rob. Ad. Rep. 199.

(e) The Rebecca, Moore, 2 Rob. Ad. Rep. 101. See also the America, Sher

borne, id. vol. 3, p. 36.

(f) The Emanuel, Soderstrom, 1 Rob. Ad. Rep. 296, and the Mercurius, there cited.

(g) The Immanuel, Eysenberg, 2 Rob. Ad. Rep. 186, and the Anne, Lord, id. vol. 3, p. 91, note (a), and the Nancy, Joy, id. p. 82.

hostile nation to the colony of another hostile nation in alliance with it (h), 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 [† 472] is opened 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 (i).

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 (k). 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. (1)

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

(h) The Rose, Young, 2 Rob. Ad. Rep.

206.

(i) The Wilhelmina, Carlson, 2 Rob. Ad. Rep. 101, in notis.

(k) The Race-horse, White, 3 Rob. Ad. Rep. 101, and see the cases cited in the note at the end of that report. See also the Hoffnung, Rask, 6 Rob. Ad. Rep. 231.

(1) See ante, note to page 347, on the subject of contraband. Many of the doctrines in this section were recognised in the decisions of the Court of the U. States during the late war. See The Commercen, 1 Wheaton, R. 382; S. C. 2 Gallis. R. 261; The Francis, 8 Cranch, 418; The Autonia Johanna, 1 Wheaton, R. 159; The Societe, 9 Cranch, 209, and ante, notes to page 406, and post, 443, and note.

The right to receive freight, however, is essentially connected with entire good faith on the part of the neutral master. If the master or owner prevaricates, or conducts himself with ill faith, or is guilty of other gross or unneutral behavior, the right to freight is forfeited. The Vrow Henrica, 4 Rob. R. 343; The Rising Sun, 2 Rob. R. 108; The America, 3 Rob. 36; Oster Risoer, 4 Rob. 199; The Ebenezer, 6 Rob. 256. The freight, however, which is allowable in such cases, is not that contracted for, if an inflamed rate of freight has been produced by the state of the war; but a reasonable freight only. But the charter-party, under ordinary circumstances, constitutes the rule. The Twilling Riget, 5 Rob. R. 82.

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 (1): not even if the proprietor of the cargo afterwards dispose of it at the place to which the ship may be carried (m). (1)

(1) The Fortuna, Tadsen, 4 Rob. Ad. Rep. 278, and the case of the Vreyheid, and also Bynkershoek, Quest. Jur. Pub. lib. 1, c. 13, there cited. This is differ

ent from the old rule as laid down in the Consolato del Mare, chap. 173.

(m) Vrow Anna Catherina, Mahts, 6 Rob. Ad. Rep. 269.

(1) See ante, note to page 406. Under peculiar circumstances, however, as where the cargo is brought to the country, though not to the port of destination, if the ship is restored before the cargo, the freight is allowed. The Race Horse, 3 Rob. 103; The Wilhelmina Eleonora, 3 Rob. 234. Other favorable cases exist, as where the port of unlivery is that, which, but from political circumstances, would have been selected. The Diana, 5 Rob. 67.

If the goods, while in possession of the captors, are damaged, the amount of the injury may be deducted by way of set-off from the freight. The Fortuna, 4 Rob. R. 278, 282.

If the cargo be insufficient to pay both freight and expenses of the captors, the former has a preference generally. The Vrow Henrica, 4 Rob. 343. But not the master's expenses. The Bremen Flugge, 4 Rob. 90.

+CHAPTER X.

OF GENERAL OR GROSS AVERAGE; AND HEREIN,

[† 473]

(Ss.)1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison.

2. Of the losses for which contribution by general average shall be made.

3. Of the Jettison of goods stowed on the deck of the Ship.

4. Of Ships stranded and lost.

5. Of Ships' expenses in port of refuge.

6. Of Goods sold for the necessities of Ship and Cargo.
7. Of expenses in Wages and maintenance of Crew, during the
detention of a Ship by order of a sovereign power.
8. Of the expense of Wages and maintenance of Crew while the
Ship is waiting for Convoy.

9. Of the expense of healing Mariners wounded in defence of
the Ship.

10. Of loss by Collision.

11. Remarks.

12. What articles are to contribute.

13. Of the mode of contribution.

14. How settled, and recovered in case of dispute.

1. HAVING thus treated of the respective duties of the owner and the merchant, I now proceed to the consideration of a subject, which is equally a duty of the one and the other: namely, the General Contribution, that is to be made by all parties, toward a loss sustained by some for the benefit of all. This contribution is sometimes called by the name of general average, to distinguish it from special or particular average, a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever; and sometimes by the name of gross average, to distinguish it from fcus- [† 474] tomary average, mentioned in the bill of lading,