King of Spain, because retaken from his then enemy the French under circumstances in which the Spanish Courts had condemned British property retaken by the Spaniards; and shortly afterwards, two Portuguese ships were for the same reason condemned, and several others at the same time restored (m), because, in the interval between the different captures, an Ordinance of the Court of Portugal had altered the rule of restitution in that country; and they were restored upon payment of the rate of salvage established in Portugal; viz., one-eighth to the king's ships and one-fifth to privateers. Upon the same principle, a British ship, which had been taken by the French, and carried into Pontevedra in Spain, and condemned by the Prize Court at Paris, being afterwards seized as French property, and sold under the orders of the Junta of Gallicia, then enemies of France, and allies of this country, and which came to England and was claimed by the original British owner, was not restored (n). At a later period, a Spanish ship was restored on payment of one-eighth, upon the ground of an article in a recent treaty between Spain and this country, providing for mutual restitution on salvage (o).

Of this principle of British jurisprudence, whatever [593] attempts may be made to shake it from motives of public policy or private interest, reason must now declare, and posterity will hereafter confess, that it is founded on the immovable basis of reciprocal justice. The right of recaptors to salvage is extinguished by a subsequent act of capture and condemnation by an enemy, but it must be a regular sentence of condemnation carried into execution; for if the sentence of the Prize Court be overruled by an order of release from the sovereign power of the state, the recaptors are not deprived of their right to salvage (p). (1)

If the property of a nation not engaged in hostility with the enemies of this country, happen to be taken as prize by them, and retaken out of their hands by his Majesty's subjects, the probability of its condemnation in the Courts of the country of the captors is to be considered: and unless there appear to be ground on which it may be supposed that it would have been condemned in those Courts, it is to be restored without the payment of any salvage. Upon this ground an American

(m) Same case.

(n) The Victoria, 1 Edw. 97.

(0) San Francisco, Da Paula, 1 Edw.

279.

(p) Charlotte Caroline, Ader, 1 Dods. Ad. Rep. 192.

(1) The Act of Congress of 3d of March, 1800, ch. 14, respecting salvage of recaptures, provides (sect. 3) the same liberal rule of reciprocity in relation to recaptures of the ships of allies and neutrals, which the Admiralty Courts of England have adopted.

ship, carrying provisions and naval stores on the part of the American government, for the use of their fleet in the Mediterranean, was restored without any salvage on recapture from the Spaniards (q). So an American ship, which had been seized by the French Douaniers in the river Yadhe, and released upon giving bail, by depositing a sum of money to answer the sentence of a Court of Prize, and which was brought out of the river by the boats of an English gun-brig, was restored without salvage; for it was considered that the ship would have been free by reason of the security and deposite, even if sentence of condemnation should pass (r). In the war preceding the last, the conduct of the cruizers and Prize Courts of France, having given reason to apprehend that neutral property arrested by the former on the high seas, would in almost all cases be condemned by the latter, salvage was usually allowed to recaptors of neutral property out of the hands of the French, by our Court of Admiralty, and such allowance was not thought unreasonable by the neutral merchants; but this was treated as an exception to the general rule founded on particular circumstances (s). And in the last war it was allowed, upon the recapture of [† 594] American ships from the French and Danes, which were navigated without the certificates of origin required by the French decrees, and of which the condemnation was to be expected from the usual practice of France and Denmark on similar occasions (t). (1)

11. By the 6 Geo. 4, c. 49, it is enacted, "That if any ship, merchandise, or other property found and taken in the possession of pirates, shall be duly proved in and adjudged by the Court of Admiralty, or other Court having competent jurisdiction therein, to have belonged to, and to have been taken from any of his Majesty's subjects, then such ship, merchan

(q) The Huntress, Stinson, 6 Rob. Ad. Rep. 104.

(r) The Robert Hall, Randall, 1 Edw.

265.

(s) The Carlotta, Pasquel, 5 Rob. Ad. Rep. 54; The Eleonora Catharina,

Kreagh, 4 Rob. Ad. Rep. 156; Fanny, Lawton, 1 Dods. Ad. Rep. 443; This last was the case of neutral goods shipped in an armed British vessel, which was taken and retaken.

(t) The Acteon, Mason, I Edw. 254.

(1) Our Law adopts the same principle. Talbot v. The Ship Amelia, 1 Cranch, 1; S. C. 4 Dall. R. 34; Waite v. The Antelope, Bee's Adm. R. 233.

Salvage may be decreed between aliens, at least, if not objected to by the proper authorities. Mason v. The Ship Blaireau, 2 Cranch, 240; The Two Friends, 1 Rob. R. 271.

<If a ship is illegally seized under usurped authority, by a foreign government, and recaptured by the crew, they are entitled to salvage; and the decree of an American Court in rem will be deemed conclusive on the right, unless fraud is shown. Williams . Suffolk Ins. Co. 3 Sumner, 270. >

dise, and other property, and every part so proved, shall by the decree of the said Court be adjudged to be restored, and shall be accordingly restored to the former owner or owners, proprietor or proprietors thereof respectively, he or they paying for, or in lieu of salvage, a sum of money equal to oneeighth part of the true value of such ship, merchandise, and other property respectively; which money shall be paid to and divided and distributed amongst such persons, and in such manner, form and proportion, as shall by any proclamation, or order of his Majesty in council, be directed for the distribution of the produce of any ship, vessel, boat, goods or other property of pirates " (u).

(u) Sect. 3.

+ CHAPTER XIII.

[† 595]

OF THE DISSOLUTION OF CONTRACTS FOR THE CARRIAGE OF GOODS IN MERCHANT SHIPS; (1) AND HEREIN,

(Ss.)1. Of Dissolution by Mutual Consent.

2. By events rendering the performance of the Contract illegal -of War and Embargoes.

3. Of Blockake of the Port of departure.

4. Of Blockade of the Port of destination.

HAVING thus considered the several species of contract made for the carriage of goods in merchant ships, and the various duties arising therefrom, I proceed, in the last place, to the examination of the modes by which contracts of this nature may be dissolved. And these are, either the voluntary act of the contracting parties, or some extrinsic matter happening after the making of the contract and before its completion.

1. It is a general rule, that whatever derives its force and validity from the consent of parties, may by the mutual consent of the same parties be rendered null and invalid. There is indeed a technical rule of the law of England, which requires the discharge of a person from a contract to be made by an instrument of as high a nature as the original instrument of contract: and this rule is applicable to the contract of affreightment by charter-party under seal; but in case of a discharge by mutual consent not expressed in this formal manner, the rule would at the utmost have no other effect than to render it necessary for the party to apply to a Court of Equity. In all such cases, however, prudence requires that the deed should be cancelled and delivered up.

But a merchant, who has laden goods, cannot insist upon having them relanded and delivered to him without paying the freight fthat might become due for the [† 596] carriage of them, and indemnifying the master against the consequences of any bill of lading signed by

(1) See 3 Kent, (5th ed.) 248–251. >

him (a). Indeed a master who has signed bills of lading cannot with prudence deliver back the goods without having all the parts of the bill of lading delivered up to him, for if any one part has been transmitted to a third person, such third person may have acquired an interest in the goods. (1)

2. Another general rule of law furnishes a dissolution of these contracts by matter extrinsic. If an agreement be made to do an act lawful at the time of such agreement, but afterwards, and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved (b). If, therefore, before the commencement of a voyage, war or hostilities should take place between the state to which the ship or cargo belongs, and that to which they are destined, or commerce between them be wholly prohibited, the contract for conveyance is at an end (c), the merchant must unlade his goods, and the owners find another employment for their ship. And probably the same principles would apply to the same event happening after the commencement and before the completion of the voyage, although a different rule is laid down in this case by the French Ordinance (d), as I have before observed. But if war or hostilities break out between the place, to which the ship or cargo belongs, and any other nation, to which they are not destined: although the performance of the contract is thereby rendered more hazardous, yet is not the contract itself dissolved, and each of the parties must submit to the extraordinary peril, unless they mutually agree to abandon the adventure. (2)

(a) 2 Eq. Ca. Ab. p. 98, Anon.

*(b) In the case of Evans v. Hutton, 6 Jurist, 1042. In an action for a breach of contract, it appeared that the defendant undertook to convey the plaintiff's goods from Liverpool and to land them at Canton. On arriving there, the British superintendent of trade, acting under the orders of the government in England, prohibited the defendant from landing the goods, and a loss ensued. The defendant pleaded that he was prevented from performance by the officers of our Lady the Queen, duly authorized on that behalf, and exercising powers of government, &c. The officers were appointed by 3 & 4

Wm. 4, c. 93, s. 5, and acted under the orders of the Queen in Council, as authorized by section 6. The Court of Common Pleas held the plea bad, because it did not set out the orders under which the superintendent of British trade at Canton acted, nor did it set out that the performance of the contract had been prevented by any acknowledged prerogative of the Crown.*

(c) French Ordin. liv. 3, tit. 1, des Charte-parties, art. 7; Code de Com. art.

276.

(d) Liv. 3, tit. 3; Fret. art. 15. See before, part 4, chap. 8, sect. 5, and the Code de Com. art. 299.

(1) See Thompson v. Trail, 6 Barn. & C. 36. > (2) See Brick Pres. Church v. Mayor & N. York, 5 Cowen, 538; Baylies v. Fettyplace, 7 Mass. 325; Harrington v. Dennie, 13 Mass. 94; Badlam v. Tucker, 1 Pick. 284, 287. >

Our Law is the same. If after making a contract of affreightment by charter