CHAP. IX. foreign powers, of which this Court (King's Bench) knows nothing, but all which must be subjected to the decision of some forum, governed by the same rules in all countries.”

The Court of

power to de

cide, as well

the question of freight,

It is hardly necessary to mention, that that caution with which the Instance Court of Admiralty formerly proceeded in questions of property or title in ships, was never observed in the Prize Court, its jurisdiction over such subject being of necessity more extensive; and in that Court the onus probandi is always on the claimant for restitution. "In the Prize Court special reasons for deception are perpetually occurring, and that Court exercises a much more unconfined jurisdiction in questions of property than it does in its civil forum.” *

The general rule is, that where a Court has jurisdicAdmiralty has tion in the principal question, it has jurisdiction incidentally over all matters connected with the original cause; and thus it is, that where a ship and cargo have been taken as prize, the Court of Admiralty, as has been mentioned above, has an undoubted jurisdiction over the freight. † To decide, for instance, whether, if the cargo be condemned, freight should not be restored to a neutral claimant, whether freight be due for the whole voyage, or only pro rata‡; also to decide between

* Per Cur. The Countess of Lauderdale, 4 Robinson's Admiralty Reports, 286.

† Smart v. Wolff, 3 Term Reports, 323.

66

Capture is considered as delivery, and a captured vessel earns a whole freight. But it frequently happens that the case is of mixt nature, and that the captor does not fully succeed to the rights of the enemy, and represent him as to those rights. "If," said Lord Stowell, a neutral vessel, having enemy's goods, is taken, the captor pays the whole freight, because he represents the enemy by possessing himself of the enemy's goods jure belli; and, although the whole freight has not been earned by the completion of the voyage, yet, as the captor by his act of seizure has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to

the owners of the ship and the owners of the

by tranship

men, of demur

rage,

claims by transhippers, material men, &c. *; all those as upon claims questions, which are incidental to the ship and cargo, pers, material having been seized as prize. As, for instance, to determine whether demurrage be due, not only from the captors †, but also from the owners of the cargo to the owners of the ship‡; whether freight be due, not only from the captors where the cargo is condemned to them, or to the captors where the ship is condemned to them§,

the payment of the full freight. But if ship and cargo, being both neutral, are restored, the consequence is only, that the ship must proceed on, and complete the voyage before she can demand the freight. If the cargo is restored whilst the ship continues under detention, still less reason is there to contend that she has earned her whole freight." Such was the case of the Copenhagen, where the ship had failed in her contract, but it was not in any manner owing to the cargo that she had done so, but to her own (the ship's) distress originally, and afterwards to her dubious character, dubious — namely, whether enemy or neutral; and under those circumstances it was held by the Court, that the ship had only earned freight pro rata itineris, and was referred to the registrar and merchants in the usual manner.

* Bottomry is not such an interest as is cognisable in the Prize Court, so as to give a persona standi in a claim for restitution against captor. Tobago, 5 Robinson's Admiralty Reports, 218.; see also 2 Robinson's Admiralty Reports, 5. In the Nostra de Conceicas, the amount of repairs &c., and money expended on a ship purchased under an illegal title were allowed. See 5 Robinson's Admiralty Reports, 294.

In the Corier Maritimo, 1 Robinson's Admiralty Reports, 287. Demurrage given against captor for unjustifiable detention and delay in proceeding to adjudication.

Refused against cargo where the detention appeared necessary to prove the dubious character of the ship. Copenhagen, demurrage given. Triton, 4 Robinson's Admiralty Reports, 78.

Star, Ibid., 71.

See

§ Freight is payable to the captors when they have carried the cargo to the place of its original destination. Fortuna, 4 Robinson's Admiralty Reports, 278; and where captors had carried cargo, not to the actual port of destination, but to the claimants own country, and to the ports to which they would have consigned them, if not prevented by political state regulations, Diana, 5

of tranship

and by whom such claims respectively are

to be satisfied; and thus to decide questions of average.

CHAP. IX. but also from the owners of the cargo to the owners of the ship*; what sum of money is due for transhippers of ment of cargo, cargo, where a transhipment has been necessary, and from whom, whether from the owners of the cargo, or from the owners of the ship; and where repairs are necessary, whether the owners of the ship, or the owners of the cargo, are liable. And thus is the Prize Court called upon to decide questions of average, whether the average be simple or particular on the cargo only, or whether it be general, affecting the cargo in common with the ship. In the case of the Hoffnung, a claim of average on the part of the captors in right of the cargo against the ship, was demanded to recover the value of part of the cargo which had been applied to the reparation of the vessel in the port of

* The Wilelmina Eleanora, 3 Robinson's Admiralty Reports, 234.; see also the Racehorse, Ibid, 101., and the Martha, Ibid. 106, in notes.

†The Copenhagen, 1 Robinson's Admiralty Reports, 289. "General average is for a loss incurred, towards which the whole concern is bound to contribute pro rata; because it was undergone for the general benefit and preservation of the whole. Simple or particular average is not a very accurate expression, for it means damage incurred, by or for one part of the concern, for which that part must bear alone, so that in fact it is no average at all; but still the expression is sufficiently understood, and received into familiar use. The loss of an anchor or cable, the starting of a plank are matters of simple or particular average, for which the ship alone is liable. Should a cargo of wine turn sour on the voyage, it would be a matter of simple average which the goods alone must bear, and there might be a simple average, for which each would be severally liable under a misfortune happening to both ship and cargo at the same time, and from a common cause, as if a water-spout should fall on a cargo of sugars, and a plank, from the same violence, should start at the same time. General average is that loss to which contribution must be made by both ship and cargo, the loss or expense which the loss creates, being incurred for the common benefit of both."-Per Lord Stowell in the Copenhagen.

case.

6 Robinson's Admiralty Reports, 383.; see also note to that

237

Ilfracomb before the seizure, but was not sustained: the CHAP. IX. cargo seized as prize was condemned, and the ship was restored; the following is a great part of the valuable judgment of Lord Stowell: " Cases of average on the part of the ship against the cargo are not unfrequent, but a demand of the cargo against the ship is perfectly novel in this Court. The distinction is obvious, the right of war is a right in re, and the Court of Prize accordingly attends only to the res ipsa, and the onera attaching on the property in right of possession. ship has the possession of the cargo, which the master is not bound to deliver till he has been satisfied for his demand of average, if he has such, in the same manner as for his demand of freight. He has the res ipsa in his possession, and may legally detain it.

The

"The captor succeeds to the rights of the owner of the ship when that is condemned, and may detain the cargo also, in virtue of these rights when they exist. But with respect to the cargo it is very different; that has not in any manner a right of possession against the ship. It may have the jus in rem possibly, but it has not the jus in re; and, consequently, no right of detention existing at the time of seizure. If there is any demand on that side, it must be enforced by a new process; there can be no detention, and, consequently, no right of detention. The demand must be of that description of interests only, which are collateral and extrinsic, and which are to be enforced on principles of law of another species, and by a new process. They are not tangible objects to which the hand of war can be applied, and therefore the Prize Court will not take notice of them. Indeed, how could the claim of the cargo against the ship be enforced in this Court? If the ship goes into the country of the owners of the cargo, it may be reached by process of another kind, but only in virtue

CHAP. IX. demand; it is one that could be enforced only in the country to which the parties belong.

"It has been said in argument, that the captor succeeds to all the rights attending the property, and that he is subject to all the obligations belonging to the property seized. But this is not an accurate description. It is not, I conceive, a complete representation of all the interests and obligations of the proprietors that is devolved by act of seizure on the captor. The right of capture attaches according to the state in which the property is found, but if a former freight is due to the ship, the captor could not exact it since he has not earned it. The owner of his ship has parted with his lien, and must look to his remedy of another species. Neither does the captor become subject to the obligations to which the owner is liable. Antecedent collateral contracts, as bottomry, may exist, that will not affect him; he becomes possessed of the res ipsa, but without being made liable to the personal contracts in which the proprietor is engaged. Therefore, unless it can be shown that the hand of capture was employed on these goods in quality of cargo, the Court cannot go back to effect them in any other character. This cannot be maintained. The ship had been totally restored, and part of the cargo had been converted before seizure. What has become of it the Court will not inquire, nor look back to rights of this extrinsic nature.

"If the whole cargo had been applied to the repairs of a ship in a foreign port and incorporated with it, and the vessel had afterwards become prize, the captors might have had the benefit of that conversion, yet they would not have been subject to any demand on that account: still less could they in that case say, you must find me a cargo, when, in fact, they had received it in the amelioration of the ship. So in this case they are not entitled to demand the proceeds of a cargo applied