The New York herald., 1875-11-24

WNethor
OF his expected freight" u.oundes on General Aver
age 1885, In the case OF the brig Mary,
Judge sprague carried out the doctrine by hoong INA.
when by 4 charter party gross sum not diysibe was
TO be paid as freight for voyage out and home the
principal object the voyage being 70 obtain return
cargo and general average occurred on the outward
passage when the ship sailing IN ballast the whole
freight for the round voyage must contribute
lSpragues Decisions H. TCrning TO cases OF salvage
We hnd the same rule TO prevail The ship Nathaniel
1ooper g Sumner 542 Il is true that Mr. BeneckO diff
rs from Sir william Scott IN the view taken by the latter
In the case OF Tho Progress Edwards 2lO that where
ship goes out under charter TO proceed to her port
Of destination ballast and to receive her freight only
upon her return the Court not In the habit OF dvid
ing the salvage lin which he is sustained by the OF
The Dorothy Foster 9th Robinson, sS); but II Is sun
cient TO observe respecting the difference OF opinion
that no man OF ms age was OF hlgner
authority IN nautical law than the Judge
In the cases Of collision Of vessels the same doctrine
prevails Even the OF the South Sea and the Clara
Symes (Swabey's Reps, 141) s really in harmony with
the other cases, for although the claim for freight was
there rejected and the owner OF the injured vessel was
directed 10 pay the costs attending the claim which
he had made for freight, yet this because of the
doubt that from the character Of the vessel
whether the could have carried out the charter
party even had the collision not occurred The de.
csion Of DR.. Lushington in the Gazelle Y
W, Robinson, 279) and also in the Ago Il
splnk, a75l tho report of the Registrar and
under DR. Lushington's own eye; the decision OF Dr.
Philmore IN the orphcus % Law Reports, p 3OS, Ad-
mralty where the cargo not board at the time
Of the collision; the judgment Of several of emf
nent admiralty Judges in America BARK Heroine, !
Benedict, 10 Egbert the Is. and O. K r. CO., z
Benedict 225l, and the decisions of the Supreme
Court of the United States in Williams VS. Bar
rett, 1S Howard, 1Ol; the Cayuga, IA Wallace
270; the Favorita Is Wallace sos have placed a
foundation too solid To bo shaken the doctrine that the
owner of ship injured BY acolson if not in fault IS
entitled her freight from the owner or
the offending ship If the performance Of the charter
party IS prevented by the collision.
PRIZES or
Undoubtedly the closest analogies TO the cases in
hand found in those OF the capture of vessels
prize Of IL is true that Great Britain did not
l,rll lttxt nF
nsurgent cruisers, and, indeed by the first article Of
the treaty dsclamed it, but, having negigently per
mtted the equipment In her ports Of vessels which
could have had other object than the destruction Of
our ships she was placed by tho treaty IN
the legal attitude OF having wrongully captured them.
There in the books few cases 81 he destruction Of
vessels taken as prize Of war for the reason chiefly
that they are too valuable 10 the capor to be destroyed
One OF the few IS the Of Der Mohr "a Rob, 3l4,
which was lost by the negligence of the prizemaster-
officer of the British navy-whlle being taken into
port and the capors were held liable both for the ship
and the freight but relieved from liability by act Of
Parliament In the Copenhagen Il c. Rob, 2S9),
seized in British port which she had entered in dis
in treating of the question whether freight was due
from the of the cargo TO the of the ship
for the whole voyage or only pro rata ntnerds, tnqs
speaks with respect to the freight, some rs ad-
mitted to be due the ship has brought her cargo
from Smyrna through much the most considerable part
of the voyage But II Is said that in matters Of prize
the whole freight is always gwen and for this reason
because capture is considered delivery and cap
tured vessel earns her whole freight | have already
SAID that this is not merely or originally matter Of
prize; the ship was not brought In such.
She came in first from distress, and afterward
put upon the proof of her character IL is of
mixed nature and the maxim that capture is delivery
is not to be taken in the general way it is laid down.
II is by true except when the captor succeeds
fully to the rights Of the enemy and represent him as
TO those rights II neutral vessel having enemy's
goods is taken the captor pays the whole freight be-
cause he represents the enemy by possessing himself
of the enemy's goods Jurs. bella and, although the
whole freight has not been earned by the compile
tion of the voyage yet as the captor by his
Of seizure has prevented its completion his SEIZURE
shall operate to the elect actual delivery of
the goods to the consignec shall subject him to the
payment Of the full freightn The of the Martha
e @ Rob- p. 105; Hamilton Q. Rob- p. l07 and that
OF the Anna Catherine 6 O Rob, p 10y, recognize the
same doctrine. In the argument before US II was as
sumcd that OF capture had freight been al
lowed where the cargo was not on board at the time Of
the capture but The Progress ('Edwards' Admiralty
Reports, p 2l0l seems TO present such case That
vessel having sailed from England TO oporto in ballast
under a charter party for an entire voyage
and home, and having performed the out
voyage captured by the French in that port
ana recaptured by the British and Portuguese army,
under Wellington, before she had commenced her
nomeward voyage. Alter the capture she had been
unaden On the recapture her cargo in warehouse
on shore Salvage was allowed on the whole freight
out and home See tie aecg in the Catharina
Elizabeth Il Acton, Admiralty Reports, S09 allowing
freight to neutral vessel which had not actually
sailed though her cargo on board II must be ad-
mted that the American decisions have not yet salts
factorily established here the English rule, and
Wheat, 800; the Anna Maria Wheat 372; the Charm
Betsey, Cranch, O.; the societe, cranch, 200,
I Was the case Oh
NEUTRAL VESSEL
sailing under charter party 10 Amelia Island with cargo
freight free where she to take on board such cargo
as might be rendered to her; and while thus carrying
British goods captured by naval vessel Of the
United States, then at with Great Britain, and
brought the District OF Georgia, where the cargo
condemned as enemy's property. Chief Justice
Marshall certainly held the voyages TO be distinct
probably much influenced by the DIVISION made OF the
freight which, to voyage TO
be free but payable as to the other.
In the comparatively recent OF The Neustra Sonora
vl. n wall nfchc ce1
prize OF at Port Royal, In which huge sum
allowed to the for the OF the vessel there
TO be some recognition of the English rule which
must seem to every one who carefully examines the
subject much more consonant to the whole system Of
the law Of marine torts.
PRO ITISERAs
II certainly follows from this discussion that in the
before the allowance OF freight pro rata ieras
per dct strongly Insisted on by the counsel for the
government, is out OF the question. There is moth
ing in any act OF Congress TO authorize It, We not
required TO decide a case where the freight was wholly
earned, which 1t was wholly unearned; for
neither the one case nor the other could have
SEEN have arisen out Of the depredatons Of the nsur
gent cruisers. Such acts for
the and too late for the other. We
called upon to decide cases occupying ground inter
mediate between these extremes The statute, there
fore, wisely said nothing about apportoning the
freight 2. We could not undertake to determine upon
and allow freight pro rata tinerd& when 1t had been
partly earned and partly unearned, without violating
those principles Of law which Congress specially
toned us observe. Lcft thus untrammeled by the
statute in respect to the measure OF freight
due we had either to take ground in opposition
TO what the enlightened publiciss have written
on this subject and the distinguished ursts have
approved, to adopt principles which have thus
quired the sanction Of the jurisprudence OF the mari
world IL required little sagacity and less courage
to do the latter. g. Ii we had undertaken TO split
the freight into fractions and 10 parcel it out
should have failed in everything except doing injustice
practical eye will readily this Suppose the ordi-
nary voyage Of a sailing vessel TO be thirty days In
ten days from the time of comm encng put cargo on
board she has completed II may be, four. .1tths
OF her entire earnings WhyY The OF loading
and payment Of wages to officers and men, the supply
OF stores and the other smaller and incidental but inev
table expenses the bulk Of the of earning the
entire freight All she then requires is those propous
influences of the elements for which she dependent
not on the power OF man. but the favor of Heaven
Divide the whole net freight thus begun TO be earned
and already partially earned according TO the number
of days interest by any other rule, and not in
case out OF thousand would justice be done Deduct
that which one Of these vessels, If not
DESTROYED must have expended between the point
OF her actual destruction and the port OF destination
generally only the expenses OF maintaining the crew.
paying the port charges and delivering the cargo and