"case of a total loss no freight is due, but as between "them no loss is total, where part of the property is "saved, and the merchant takes it to his own use. In "this case the value of the goods was restored "in money, which is the same as the goods, [307] " and therefore freight was certainly due pro "ralâ itineris" (q). (1)

(9) Baillie v. Moudigliani, Park, chap. 2. p. 53.

(1) But where a ship was captured and recaptured, and was afterwards wrecked; and the master applied to the Vice-Admiralty Court at St. Kitts for a survey, and upon which the shipwas condemned, and together with the cargo, at the petition of the master, was sold by order of the Court, and the proceeds of the sales were remitted to the owner of the ship, it was held that no freight was due; that the act of the master in procuring the sale was tortious, although done bona fide for the benefit of all concerned, because he has no authority over the cargo to this effect; that the cargo was prevented from arriving at the port of destination,not by inevitable casualty or superior power, but by the mere tortious act of the agent of the owner; and therefore the case was clearly distinguishable from that of Baillie v. Moudigliani. In the latter case the sale was made by authority of a competent tribunal, without any application of the master, and without any fault of the owner. But it would seem that the Court were not altogether satisfied with the decision of Lord Mansfield. Lord Ellenborough said, if the ship be disabled from completing her voyage, the owner may still entitle himself to the whole freight by forwarding the goods by some other means to the port of destination; unless the forwarding of them be dispensed with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without pay.

So where a ship under a neutral flag, and with neu tral papers, was in time of war driven into a British port by stress of weather, and seized together with the cargo, and libelled in the Court of Amiralty for condemnation, on account of various circumstances, which led to a suspicion that both ship and cargo were the real property of the enemy: and, the neutrality of the cargo being proved before proof of the neutrality of the ship

ing any thing. Hunter v. Prinsep, 10 East. Rep. 378. See ante, p. 272. note. The Hoffnung, 6 Rob. Adm. Rep. 231. See next note, below, and Roccus de nav. note 80.

But if the proceeds of the captured cargo have never actually come to the hands of the shipper, although restoration be decreed by the Court of Admiralty, the owner is not compellable to pay any freight. Barker v. Cheviot, 2 John. Rep. 352.

Nor can freight pro rata be recovered pending process in the Admiralty Court. For the ship may be condemned and the freight adjudged to the captors. And passage money seems to every purpose, except of lien, the same as freight. Mulloy v. Backer, 5 East. Rep. 516. In this case the plaintiff contracted to carry the defendant and his family and luggage, from Demerara to Flushing, &c. for 2400 guilders. War having been declared against Holland the ship was captured and carried into Plymouth, where the defendant and his family with their luggage, were set at liberty. As the process was yet pending against the ship in the Admiralty Court, the Court held that the action for a pro rata freight was brought too soon. And they said that passage money would follow the title of the ship as freight; but they intimated that probably pro rata passage - money might be due. But in Howland v. Ship Lavinia, 1 Peters. Adm. Rep. 125. Judge Peters held that no pro rata passage money would become due in such a case, and if it had been advanced that it ought to be refunded.

arrived, the cargo was restored during the detention of the ship, and part thereof was sent in other vessels to the place of destination and the residue conveyed to London: The present Judge of the Court of Admiralty, after having decreed the restoration of the ship, decreed also that the merchants should pay freight for their goods for the portion of the voyage performed (r).(1)

15. b. On the other hand, in the case of a Swedish ship, which, being chartered to go from Plymouth to Radston, (a very small distance) there to take a cargo of pilchards for Venice, sailed to Radslow, and took in the cargo, and proceeded a few days on the voyage; but meeting with bad weather and becoming leaky, returned to Falmouth, and was there stopped by an embargo imposed on the vessels of Sweden, in consequence whereof the cargo was taken out and restored to the merchants, who were British subjects; the learn

ed Judge of the Court of Admiralty decreed [308] that no freight was due; but held that if any expenses had been incurred by the ship on account of the cargo, they must be paid (s). (2)

(r) The COPENHAGEN, Mening, 1 Rob. A. R. 289.

(a) The ISABELLA JACORINA, Sovergren, 4 Rob. A. R. 77.

(1) See ante 272. note. The Hoffnung, 6 Rob. Adm. Rep. 231., where the Court held that where a ship had been captured, and her cargo unlivered by order of court, that the whole freight was due, and the master was not obliged afterwards to proceed further on the voyage.

(2) So where a Swedish Ship was brought in under the embargo on a voyage from Philadelphia to Lisbon, and it became necessary to unliver the cargo which was claimed for mer

16. Neither of the authors by whom the preceding case of Luke v. Lyde is reported, have mentioned the form of action adopted by the plaintiff Luke to enforce his demand. In a case since decided in the Court of King's Bench, it was understood to have been an ac tion for freight for the carriage of goods generally, and not an action founded on the original contract for the conveyance of the goods from Newfoundland to Lisbon. And so it really was (). The case, to which I at present allude, is that of Cook v. Jennings (u), which was au action of covenant on a charter-party of affreightment dated 2d August 1796, by which the plaintiff let his ship the Resolution to the defendant, to freight from Liverpool to Wyburgh,and back to Liverpool,and agreed that the master should take on board a cargo of salt for Wyburgh, and after delivering the same there, should take on board a cargo of deals; in consideration of

(t) I have examined the record, and find it to be so. The issue is of Trinity Term, 32 & 33 Geo. 2 Roll 379. The declaration is for the freight of goods carried in the plaintiff's ship by sea, without mentioning from or to what place.

(u) Cook v. Jennings, 7 Term Rep. K. B. 381. The case came before the Court on a demurrer to the plea, which alleged that no part of the deals were delivered at Liverpool according to the charterparty.

chants in Lisbon, and after the embargo was taken off, freight was claimed by the master, the court said, in this case the cargo is claimed for persons not subject to the embargo. The ship was brought in as a Swedish ship and on that account only; the detention has been occasioned without any co-operation on the part of the cargo. The cargo has been brought out of its course, and has been detained on account of the ship, and is finally compelled to find another vehicle, to convey it to its market. Under such circumstances it is not liable to the demand of freight. The Werldsborgaren, 4 Rob. Adm. Rep. 17.

which the defendant agreed to pay to the plain

tiff, "in full for the freight and hire of the ship [309]

"for the said voyage, at and after the rate of

"71. per standard hundred for deals delivered at Liver66 pool &c. the freight to be paid one-fourth in cash at her arrival, and the remainder by an acceptance on "London at four months date." The plaintiff in support of his action alleged, that the ship, after carrying the cargo of salt to Wyburgh, took on board there a cargo of deals, &c. and proceeded on her voyage for and towards Liverpool, &c.; and whilst the ship was so proceeding, and after she had performed a great part of her voyage, but before her arrival at Liverpool, the ship was by the force and violence of the winds and waves, wrecked and cast upon the shore, and thereby became incapable of proceeding any further on the voyage, by reason whereof it became necessary to put the cargo of deals on shore for the preservation thereof; which said cargo "go unladed the defendant accepted and received into “his hands and possession, and sold and disposed of "the same to his own use, whereby he became liable to "pay to the plaintiff a proportionable part of the said "freight and hire of the ship for the carriage of the said

cargo of deals, for such part of the voyage from Wy"burgh to Liverpool as the ship performed;" which proportionable part amounted to the sum of 8001.; and for the recovery of that sum the action was brought.

These facts were admitted to be true, and it was admitted that no part of the cargo was conveyed to Liverpool. The plaintiff did not pretend that he [310] had offered to convey the deals thither, nor did the defendant assert that he had required him to do so. The Court of King's Bench decided that the plaintiff