A neutral ship was chartered for a voyage from London to St.
Michaels, thence to St. Petersburgh or any port in the Baltic and
back to London, at the freight of 1,000 guineas. On her passage to
St. Michaels, she was captured and brought into a port of the
United States for adjudication. A part of the cargo was condemned
and part restored. The freight was held to be chargeable upon the
whole cargo, as well upon that part restored as upon that
condemned.
Quaere whether in the above case more than a
pro
rata freight was due to the master?
This was the case of a Russian ship captured on 2 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. Burnet & 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 libeled 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
Page 14 U. S. 160
packages claimed on behalf of Messrs. Ivens & Burnet, 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 & Burnet. 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.
Page 14 U. S. 167
STORY, J., delivered the opinion of the Court, and after stating
the facts, proceeded as follows:
Upon the argument, no specific objection was taken to the
restitution of any of the property claimed excepting that included
in the claim of Messrs. Ivens & Burnet. This shipment was made
by Messrs. Burnet & Co. of London, to Messrs. Ivens &
Burnet of St. Michaels, and the invoices declare the goods to be by
order, and for account and risk, of the latter gentlemen. It is
contended in behalf of the
Page 14 U. S. 168
captors that both houses are composed of the same persons,
viz., William S. Burnet, who is domiciled at London, and
William Ivens, who is domiciled at St. Michaels, and that the
documentary evidence and private correspondence show that the
shipment was made on account of the hostile house. If the fact of
the identity of the two houses were material to a decision of the
cause, it might furnish a proper ground for an order for further
proof. But admitting the fact to be as the captors contend, we are
satisfied that it can be of no avail to them. It is clear, from the
whole documentary evidence that this shipment was not made on the
account and risk of the hostile house, but
bona fide on
the account and risk of the neutral house. It does not, therefore,
present a case for the application of the principle that the
property of a house of trade in the enemy's country is condemnable
as prize, notwithstanding the neutral domicile of one of its
partners. On the contrary, it presents a case for the application
of the ordinary principle which subjects to confiscation
jure
belli the share of a partner in a neutral house where his own
domicile is in a hostile country. And on this view the decision of
the circuit court is entirely correct, and is consistent with the
doctrines established in the cases cited at the argument.
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)
Page 14 U. S. 169
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 poenam 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 proprietors. 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
Page 14 U. S. 170
lead the captors to their ruin 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 & Burnet, 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.
