Form of ratâ freight. It must be recollected, that where the contract provides for claim for pro the delivery of the goods at a particular port, no action lies on it where this delivery is prevented, although there may have been an acceptance of the goods at an intermediate place. The right to freight, if it exist, arises out of a new contract, either express or implied (). RULES IN COURT OF TO PRO RATÂ FREIGHT. The Court of Admiralty, where questions as to freight freADMIRALTY AS quently arose in the cases of captured vessels, usually acted upon the same principles. Thus, it has been frequently decided that, in ordinary cases, the goods must be carried to their destination before a claim for freight can arise (7). There must be an entire execution of the contract, or such an execution as the shipowner can effect consistently with any incapacity under which the cargo may labour. Where the non-completion of the contract is caused by an incapacity of this description alone, the goods owner cannot allege that the contract is not performed (m). If, however, the vessel herself is incapacitated, the owner cannot demand the freight, for which he stipulated only on the performance of his engagement (n). Thus, where a ship sailed on a voyage from Liverpool to Halifax and back, and after proceeding about half way to Halifax she was captured and recaptured, and brought back to Plymouth, and the charter-party showed that the intention of the parties was that the freight should be paid on the completion of the voyage, it was held, that no freight pro ratâ was claimable (0). Where a ship in distress put into an English port, after having performed the greater part of her voyage, and she was seized there, on suspicion, as a prize, and the cargo was necessarily taken out in order to repair the ship, but afterwards the cargo was restored, and at a later period the ship and part of (k) Cook v. Jennings, 7 T. R. 381; and see Liddiard v. Lopes, 10 East, 526. (7) See the judgments in The Diana, 5 Rob. 71; and in The Vrow Anna Catharina, 6 Rob. 271; also The Etrusco, cited 5 Rob. 69; and the cases collected in the following notes. This principle appears not to have been acted upon in The Racehorse, 3 Rob. 101; or in The Hamilton, cited by Sir W. Scott, ib. 107. (m) If in the case of transhipment the master, by the default of the owners of the cargo, is unable to forward it to its destination, the whole freight is payable, The Soblomsten, L. R., I A. & E. 293; The Cargo ex Galam, Br. & L. 167; 33 L. J., P. M. & A. 97; The Cargo ex Argos, L. R., 5 P. C. 134. (n) See the judgment of Sir W. Scott in The Fortuna, Edw. 57. (0) The Hiram, 3 Rob. 180; The Wilhelmina, ib. 234; and the judgment in The Fortuna, ubi supra. the cargo were sent to London, the remainder of the goods being forwarded by another conveyance to its destination, it was held, that the shipowners were entitled to freight pro ratâ, and only pro ratâ, as the failure of the performance of the original contract was in no way owing to the cargo (p). And where a Swedish ship on a voyage to Lisbon was brought into an English port under an embargo against Swedish ships, and it became necessary to unload the cargo, which was claimed for merchants at Lisbon who were not subject to the embargo, and they were compelled to find another ship to convey it to its market, the Court held, that as the detention and the carriage of the cargo out of its course had arisen by reason only of the national character of the ship without any co-operation on the part of the cargo, no freight was payable (q). So, where a cargo belonging to English merchants was to be taken by a Swedish ship to Venice, and a few days after the vessel sailed she was obliged by bad weather to put into Falmouth, where she was detained under an embargo against Swedish ships, but her cargo was restored to the merchants, it was held, that they were not liable for any freight, although they were bound to pay the expenses incurred by the ship on account of the cargo (r). capture and Captors who perform the contract by carrying the goods to Application of their destination are usually entitled to freight. This is the rule in cases of general rule (s). And in some cases, which are rather equitable substantial performance applications of this rule than extensions of it, it has been held, of contract. that freight is payable although the voyage has not been performed. Thus, where the goods had not been carried to the actual port of destination in Holland, but to this country, to which the merchants had intended them finally to come, and to which they would have been consigned in the first instance but for regulations of the Dutch Government which prevented their being brought here directly, the Court held that they had been brought to their real, although not to the nominal destination, and that freight was therefore due (t). And in the cases of the American ships bound to France or Holland, which were brought into the ports of this country under the prohibitory law in force (p) The Copenhagen, 1 Rob. 289. (s) The Fortuna, 4 Rob. 278; The Diana, 5 Rob. 67; The Vrow Anna Catharina, 6 Rob. 269. (t) The Diana, 5 Rob. 67. during the war of the beginning of this century, the full freight was pronounced to be due where the owners of the cargoes elected to sell here, for the Court considered that a voyage from America to this country was nearly the same in effect as a voyage to the contiguous countries to which the vessels had been originally destined (u). The decisions in the Court of Admiralty in the cases of neutral vessels carrying, in war time, cargoes liable to seizure, do not, properly speaking, form exceptions to the general rule mentioned above, since in these cases the voyage is, as against the party who is to pay freight, considered to be completed. Thus, it has been long settled that a neutral ship may carry the goods of an enemy, subject to the right of the other belligerent to bring in the ship for the purpose of obtaining an adjudication on the cargo (x). And it has usually been the practice of the Court of Admiralty to allow freight to neutral vessels, where the cargo is condemned as enemy's property, and the ship is restored: for in these cases capture is equivalent to delivery; that is to say, the captor who possesses himself jure belli of the enemy's goods is considered to represent the enemy, and since he prevents by his seizure the completion of the voyage, and the earning of the whole freight, the capture, as against him, operates as an actual delivery of the goods to the consignee (y). (u) See the judgment of Sir W. Scott in The Friends, Edw. 246. (x) See the judgments in The Bremen Flugge, 4 Rob. 91, and in The Vrow Henrica, ib. 347. The right of neutral ships to carry enemy's goods in time of war depends of course on the terms of particular treaties. In the treaty assented to at the Congress of Paris (April 16, 1856), it was declared (by art. 2), that the neutral flag covers enemy's goods with the exception of contraband of war; and (by art. 3) that neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag. The history of and the authorities on this subject will be found in Twiss's Law of Nations, Chap. V., and Phillimore's International Law. (y) See the judgment in The Copenhagen, 1 Rob. 291; the note to The Atlas, 3 Rob. 304; and the judgments in The Bremen Flugge, 4 Rob. 91, and in The Prosper, Edw. 76. If the ship and cargo, being both neutral, are restored, the ship must proceed and com plete her voyage before she can demand freight. See the judgment in The Copenhagen, ubi supra. In these cases the captor takes cum onere, and the freight is a lien which precedes all other claims; unless, indeed, there have been mala fides in the transaction, or the ship has been guilty of a departure from pure neutral conduct; as, for instance, by carrying from one enemy to the colony of another allied in the war, or by carrying on for the enemy his coasting or his colonial trade, or by acting in his revenue service. See the judgment in The Vrow Henrica, 4 Rob. 347, and the cases cited at the commencement of this note; also The Rose, 2 Rob. 206; The Emanuel, 1 Rob. 296; The Immanuel, 2 Rob. 186; The Rebecca, ib. 101; and The Convenientia, 4 Rob. 201. See also the American cases, The Fanny, 10 Wheaton, 658; The Commercen, 2 Gallison, 264. The principle which is acted upon in these cases is, that on the breaking out of a war, neutrals have a right to carry on their accus Freight is usually recoverable after capture and re-capture, if Effect of the voyage is completed (z). capture and re-capture. of charter. In a recent case the charter-party was held, under very Substantial peculiar circumstances, to be substantially performed, although performance the ship was unable to proceed to the particular port to which she was ordered. In that case the master of a Prussian ship agreed by charter-party with the plaintiffs to load a cargo at a foreign port in South America and proceed therewith to Cork, Cowes or Falmouth, for orders to any safe port in Great Britain or on the Continent between Havre and Hamburg. The cargo was loaded under a bill of lading which contained amongst other exceptions that of Queen's enemies. The ship arrived at Falmouth with the cargo on board, and she received orders to proceed to and sailed for Dunkirk; when off that port her master learned, as the fact was, that war had just broken out between France and Prussia. The ship then proceeded to Dover and there remained. The plaintiffs then demanded of the master delivery of the cargo at Dover, but made no offer to pay freight, and gave no orders to the master to sail to any port other than Dunkirk. In these circumstances it was held that as it was impossible for the ship to go to Dunkirk, and as the ship, without any breach of contract on the part of the shipowner, had arrived at Dover, which was one of the ports included in the charter-party, and as the plaintiff had demanded the cargo there, the shipowner was entitled to claim a lien on the cargo for the full freight (a). It is said by Molloy, that if tomed trade; but they are not entitled to engage in trades which are open to them only by reason of the accidents of the war. See The Wilhelmina, 2 Rob. 101, note, and the judgment in The Immanuel, ubi supra. Freight is not allowed if the articles carried are contraband according to the law of nations, such as tar or sail cloth; for indirect assistance is afforded to the enemy by the carriage of these goods. The Mercurius, 1 Rob. 288, and The Oster Risoer, 4 Rob. 199. It appears that tar, when the produce of the country of the owner of the cargo, may be carried subject to being brought in, not for confiscation, but for pre-emption. See the judgment in The Sarah Christina, 1 Rob. 241; and further, as cattle are sent on board and the FREIGHT FOR to contraband of war, post, Chap. VII., (z) See the judgment in Beale v. (a) The Teutonia, L. R., 3 A. & E. 394; 4 P. C. 171. See The Patria, L. R., 3 A. & E. 436. CATTLE. EFFECT OF CASE OF TIME CHARTER. freight is to be paid for their lading, it becomes due even although they die on the voyage, and that this is the rule if there is no particular agreement made either as to the lading or as to the transport; but that it is otherwise if the freight is to be paid for transporting them (b). In practice any case of this kind would depend upon the terms of the particular contract under which the cattle were shipped. Questions have arisen as to the effect of a detention during DETENTION IN the voyage on the claim for freight where it is to be paid at so much for a given time, as, for instance, at so much per month. The determination of these cases depends also upon the terms of the contract. The general rule is, that the freight continues payable, if the detention does not defeat the object of the voyage, or suspend the contract, and does not proceed from the default of the shipowner (c). EXPRESS DEDUCTION In a case in which the contract provided that a deduction PROVISION FOR Should be made from a gross sum payable for the freight, “in FROM FREIGHT case of the inability of the ship to execute or proceed on the service;" these words were held to extend to an inability to proceed to sea caused by the death and desertion of some of the crew owing to the existence of small pox on board (d). IN CASE OF DAMAGE TO Prior to the Judicature Acts it was held, that where the goods were carried and delivered to the merchant, he was not entitled to abandon them, or to resist the payment of freight by reason of their being damaged, unless there was some stipulation to this effect in the contract. The injury to the goods, if caused by the negligence of the master, would only afford matter for a cross action (e). And where a complete cargo was to be laden (b) See Molloy, B. 2, c. 4, s. 8. By the Roman law, if a contract was made for the carriage of slaves, no deduction was to be made from the freight in respect of any of them that might die on the voyage, unless it appeared from the agreement that the shipper intended to pay for those only who were safely landed. Dig. lib. 14, tit. 2. See, as to a contract to pay the highest freight which the shipowner could prove to have been paid for ships on the same voyage, Gether v. Capper, 15 C. B. 39, 696, and 18 C. B. 866. See also McAndrew v. Chapple, L. R., 1 C. P. 643. (c) See Havelock v. Geddes, 10 East, 555; Moorsom v. Greaves, 2 Camp. 627; Ripley v. Scarfe, 5 B. & C. 167, and Valente v. Gibbs, 6 C. B., N. S. 270; and also ante, pp. 324, 332, as to the suspension of the contract by war, blockade, or the like. (d) Beatson v. Schank, 3 East, 233. (e) Hotham v. East India Company, 1 Dougl. 271; Garrett v. Melhuish, 4 Jur., N. S. 943, V.-C. Stuart, Stimson v. Hall, 1 H. & N. 831; Alston v. Herring, 11 |