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held that the outward and return voyages were to be considered as distinct, and said: "The court can perceive no principle on which a cargo to be delivered freight free can be burthened with the freight agreed to be paid on a cargo to be afterwards taken on board. In this case, too, no sum in gross is to be paid for freight, but a sum depending on the quantity and quality of the return cargo. If the claim to freight on the return voyage, not commenced at the time of capture, can not be sustained, the court perceives no other rule which could have been adopted than that which the district court did adopt. Freight has been allowed on the whole voyage to Amelia Island, as on a quantum meruit. The captors not having appealed, no question can arise on the propriety of having allowed the ship any freight whatever. The court, however, will say that it is satisfied with the allowance which is made, and which is certainly an equitable one.”

The Société (1815), 9 Cranch, 209, 212.

A neutral vessel, chartered for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any other port on the Baltic, and back to London, at a freight of 1,000 guineas, was captured on her way from London to St. Michaels and brought into the United States, where part of the cargo was condemned and part restored. Held, that freight was chargeable upon the whole cargo, the restored as well as the condemned.

The Antonia Johanna (1816), 1 Wheat. 159.

No question was raised below as to whether the whole freight for the whole voyage should be allowed, or only a pro rata freight, though the whole freight was decreed. Had the question been raised, it would, said the court, "have deserved grave consideration."

"It has been held, that the charter party is not the measure by which the captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, when a ship is carrying on an ordinary trade, the charter party is undoubtedly the rule of valuation, unless impeached; the captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. But a very different rule is to be applied, when the trade is subjected to very extraordinary risk and hazard, from its connexion with the events of war, and the redoubled activity and success of the belligerent cruisers. 5 Rob. 82. The Twilling Riget."

The Antonia Johanna (1816), 1 Wheat. 159, note by the reporter, p. 170.

The law of nations does not prohibit the carrying of enemies' goods in neutral vessels; so far from so doing, upon the condemnation of the

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goods, the vessel is entitled to freight. But if a neutral endeavors, by false appearances, to cover the property of a belligerent from the lawful seizure of his enemy, such conduct identifies the neutral with the belligerent whom he thus endeavors to protect, and is a fraud on the neutrality of his own government and upon the rights of the belligerent.

Schwartz . Insurance Company of North America, 3 Wash. C. C. 117.

IV. PROCEDURE.

1. GENERAL RULES.

§ 1232.

"We have the honor of transmitting, agreeably to your excellency's request, a statement of the general principles of proceeding in prize causes in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdiction.

"The general principles of proceeding can not, in our judgment, be stated more correctly or succinctly, than we find them laid down in the following extract from a report made to his late Majesty, in the year 1753, by Sir George Lee, then judge of the prerogative court; Dr. Paul, His Majesty's advocate-general; Sir Dudley Ryder, His Majesty's attorney-general, and Mr. Murray (afterwards Lord Mansfield), His Majesty's solicitor-general:

"When two powers are at war, they have a right to make prizes of the ships, goods, and effects, of each other, upon the high seas. Whatever is the property of the enemy may be acquired by capture at sea; but the property of a friend can not be taken, provided he observes his neutrality.

"Hence, the law of nations has established, that the goods of an enemy, on board the ship of a friend, may be taken.

"That the lawful goods of a friend, on board the ship of an enemy, ought to be restored.

"That contraband goods going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality.

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By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, lawful prize.

"Before the ship or goods can be disposed of by the captor, there must be a regular, judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a court of admiralty, judging by the law of nations and treaties.

"The proper and regular court for these condemnations is, the court of that State to whom the captor belongs.

"The evidence to acquit or condemn, with, or without, costs and damages, must, in the first instance, come merely from the ship taken, viz: the papers on board, and the examination, on oath, of the master, and other principal officers; for which purpose, there are officers of admirality in all the considerable sea ports of every maritime power at war, to examine the captains, and other principal officers, of every ship, brought in as a prize, upon general and impartial interrogatories: if there do not appear from thence ground to condemn, as enemy's property or contraband, goods going to the enemy, there must be an acquittal, unless, from the aforesaid evidence, the property shall appear so doubtful, that it is reasonable to go into further proof thereof.

"A claim of ship or goods must be supported by the oath of somebody, at least as to belief.

"The law of nations requires good faith; therefore, every ship must be provided with complete and genuine papers, and the master, at least, should be privy to the truth of the transaction.

"To enforce these rules, if there be false or colorable papers; if any papers be thrown overboard; if the master and officers, examined in preparatorio, grossly prevaricate; if proper ship's papers are not on board; or if the master and crew can not say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehavior or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant, in case of acquittal and restitution: on the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages: for which purpose, all privateers are obliged to give security for their good behavior, and this is referred to, and expressly stipulated, by many treaties.

“Though, from the ship's papers, and the preparatory examinations, the property does not sufficiently appear to be neutral, the claimant is often indulged with time to send over affidavits to supply that defect: if he will not show the property, by sufficient affidavits, to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captor is justified in bringing her in, and excused paying costs, because he is not in fault; or, according to the circumstances of the case, may be justly entitled to receive his costs.

"If the sentence of the court of admiralty is thought to be erroneous, there is, in every maritime country, a superior court of review, consisting of the most considerable persons, to which the parties, who think themselves aggrieved, may appeal; and this superior court

judges by the same rule which governs the court of admiralty, viz: the law of nations and the treaties subsisting with that neutral power, whose subject is a party before them.

"If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive.

"This manner of trial and adjudication is supported, alluded to, and enforced, by many treaties.

"In this method, all captures at sea were tried, during the last war, by Great Britain, France, and Spain, and submitted to by the neutral powers; in this method, by courts of admiralty acting according to the law of nations, and particular treaties, all captures at sea have immemorially been judged of in every country in Europe. Any other method of trial would be manifestly unjust, absurd, and impracticable.'

"Such are the principles which govern the proceedings of the prize

courts.

"The following are the measures which ought to be taken by the captor, and by the neutral claimant, upon a ship and cargo being brought in as a prize: The captor, immediately upon bringing his prize into port, sends up, or delivers upon oath, to the registry of the court of admiralty, all papers found on board the captured ship. In the course of a few days, the examinations in preparatory, of the captain and some of the crew of the captured ship are taken upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought, and which are also forwarded to the registry of the admiralty, as soon as taken; a monition is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested to appear, and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry with a certificate of its service, and, if any claim has been given, the cause is then ready for hearing, upon the evidence arising out of the ship's papers, and preparatory examinations.

"The measures taken on the part of the neutral master, or proprietor of the cargo, are as follows: Upon being brought into port, the master usually makes a protest, which he forwards to London, as instructions (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship, and such parts of the cargo as belong to his owners, or with which he was particularly intrusted; or the master himself, as soon as he has undergone his examination, goes to London to take the necessary steps.

"The master, correspondent, or consul applies to a proctor, who prepares a claim, supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed, belong,

and that no enemy has any right or interest in them. Security must be given, to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected, in the mean time, to take the usual steps (but which seldom happens, as he is strictly enjoined, both by his instruction and by the prize act, to proceed immediately to adjudication) a process issues against him on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual

way.

"As soon as the claim is given, copies of the ship's papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It, however, seldom happens, (owing to the great pressure of business, especially at the commencement of a war) that causes can possibly be prepared for hearing immediately upon the expiration of the time for the return of the monition. In that case, each cause must necessarily take its regular turn; correspondent measures must be taken by the neutral master, if carried within the jurisdiction of a vice-admiralty court, by giving a claim, supported by his affidavit, and offering security for costs, if the claim should be pronounced grossly fraudulent.

"If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the court where the sentence was given, or before a notary public, (which regularly should be entered within fourteen days after the sentence), and he afterwards applies at the registry of the lords of appeal in prize causes (which is held at the same place as the registry of the high court of admiralty) for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the high court of admiralty, and within nine months, if in a vice-admiralty court, but may be taken out at later periods if a reasonable cause can be assigned for the delay that has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause. It directs the registry to transmit a copy of all the proceedings of the inferior courts; and it directs the party who has obtained the sentence, to appear before the superior tribunal to answer to the appeal. On applying for this inhibition, security is given on the part of the appellant, to the amount of two hundred pounds, to answer costs, in case it should appear to the court of appeals that the appeal is merely vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party and his proctor, by showing the instrument under seal, and delivering a note or copy of the contents. If the party can not be found, and the proctor will not accept the service, the instrument is to be served viis and modis;' that is,

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