longing to the charterer, the freight under the charter must contribute to the general average, whether or not the cargo is on board the ship at the time of the general-average act; since the loss of the chartered ship, whether laden or not, would deprive the ship-owner of his expected freight." (Lowndes on General Average, 236.) In the case of the brig Mary, Judge Sprague carried out the doctrine, by holding that where, by a charter-party, a gross sum, not divisible, was to be paid as freight for a voyage out and home, the principal object of the voyage being to obtain a return cargo, and a general average occurred on the outward passage when the ship was sailing in ballast, the whole freight for the round voyage must contribute. (1 Sprague's Decisions, 17.) Turning to cases of salvage, we find the same rule to prevail. (The Nathaniel Hooper, 3 Sumner, 542.) It is true that Mr. Benecke differs from Sir William Scott in the view taken by the latter in the case of The Progress, (Edwards, 210,) that where a ship goes out under a charter, to proceed to her point of destination, in ballast, and to receive her freight only upon her return cargo, the court is not in the habit of dividing the salvage, (in which he is sustained by the case of The Dorothy Foster, 6 C. Robinson, 88;) but it is sufficient to observe, respecting this difference of opinion, that no man of his age was of higher authority on maritime law than the judge who pronounced the judgment in that case. In the cases of collision of vessels the same doctrine prevails. Even the case of the South Sea vs. The Clara Symes (Swabey's Reports, 141) is 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 to pay the costs attending the claim which he had made for freight, yet this was because of the doubt that arose, from the character of the vessel, whether the master could have carried out the charter-party, even had the collision not occurred. The decision of Dr. Lushington in the Gazelle, (2 W. Robinson, 279,) and in the Argo, (1 Spink, 375;) The Report of the Registrar and Merchants in the Canada, (1 Lushington, 586,) made under Dr. Lushington's own eye; the decision of Dr. Phillimore in the Orpheus, (3 Law Reports, 308, Admiralty,) where the cargo was not on board at the time of the collision; the opinions of several of our eminent admiralty judges in AmericaBark Heroine, (1 Benedict, 226;) Egbert against the B. & O. R. R. Co., (2 Benedict, 225,) and the decisions of the Supreme Court of the United States in Williamson against Barrett, (13 Howard, 101,) the Cayuga, (14 Wallace, 270,) The Favorita, (18 Wallace, 598)-have placed on a foundation too solid to be shaken the doctrine that the owner of a ship injured by a collision, if not in fault, is entitled to recover her net freight from the owner of the offending ship, if the performance of the charterparty be prevented by the collision.

Undoubtedly the closest analogies to the cases in hand are found in those of the capture of vessels as prize of war. It is true that Great Britain did not admit her liability as a wrong-doer for the acts of the insurgent cruisers, and, indeed, by the first article of the treaty disclaimed it, but having negligently permitted the equipment in her own ports of vessels which could have had no other object than the destruction of our ships, she was placed by the award in the legal attitude of having wrongfully captured them. There are in the books few cases of the destruction of vessels taken as prize of war, for the reason chiefly that they are too valuable to the captor to be destroyed. One of the few is the case of Der Mohr, (4 C. Rob., 315,) which was lost by the negligence of the prize-master, an officer of the British navy, while being taken into port, and the captors were held liable both for the ship

and the freight, but relieved from liability by act of Parliament. In the Copenhagen, (1 C. Rob., 289,) seized in a British port which she had entered in distress to make repairs, Sir William Scott, in treating of the question whether freight was due from the owner of the cargo to the owners of the ship for the whole voyage or only pro rata itineris, thus speaks: "With respect to the freight, some is admitted to be due, as the ship has brought her cargo from Smyrna through much the most considerable part of the voyage. But it is said that in matters of prize the whole freight is always given, and for this reason, because capture is considered as delivery, and a captured vessel earns her whole freight. I have already said that this is not merely or originally a matter of prize; the ship was not brought in as such; she came in first from distress, and was afterward put upon the proof of her character. It is a case of a mixed nature, and the maxim that capture is delivery is not to be taken in the general way in which it is laid down. It is by no means true, except when the captor succeeds fully to the rights of the enemy, and represents him as to those rights. If 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 payment of the full freight." The cases of the Martha, (3 C. Rob., 107,) the Hamilton, (3 C. Rob., 107,) and the Anna Catherine, (6 C. Rob., 10,) recognize the same doctrine. In the argument before us, it was assumed that in no case of capture had freight been allowed where the cargo was not on board at the time of the capture; but The Progress (Edwards's Admiralty Reports, 210) seems to present such a case. That vessel having sailed from England to Oporto, in ballast, under a charter-party for an entire voyage out and home, and having performed the outward voyage, was captured by the French in that port and recaptured by the British and Portuguese army under Wellington before she had commenced her homeward voyage. After the capture she had been unladen; on the recapture her cargo was in warehouse on shore. Salvage was allowed on the whole freight out and home. By the decision in the Catharina Elizabeth, (1 Acton's Admiralty Reports, 309,) freight was allowed to a neutral vessel, which had not actually sailed, though her cargo was on board. It must be admitted that the American decisions have not yet satisfactorily established here the English rule, and some of them are adverse to it. The Amiable Nancy, (3 Wheaton, 546;) the Anna Maria, (2 Wheaton, 327;) the Charming Betsy, (2 Cranch, 64.) The Société (9 Cranch, 209,) was the case of a neutral vessel sailing under charter-party to Amelia Island with cargo freight free, where she was to take on board such cargo as might be tendered to her, and while thus carrying British goods was captured by a naval vessel of the United States, then at war with Great Britain, and brought into the district of Georgia, where the cargo was condemned as enemy's property. Chief Justice Marshall certainly held the two voyages to be distinct, probably much influenced by the divis ion made of the freight, which, as to one voyage, was to be free, but payable as to the other. In the comparatively recent case of the Nuestra Señora de Regla, (17 Wall., 30,) a Spanish steamer seized in 1861 as prize of war at Port Royal, in which a huge sum was allowed to the owner for the use of the vessel, there is 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. It certainly follows from this discussion that in the cases before us the allowance of freight pro rata itineris peracti, so strongly insisted on by the counsel for the Government, is out of the question.

1. There is nothing in the act of Congress to justify it. We are not required to decide a case where the freight was wholly earned, or one in which it was wholly unearned, for neither the one case or the other, as we have seen, could have arisen out of the depredations of the insurgent cruisers. Such acts came too soon for the one and too late for the other. We are called upon to decide cases occupying ground intermediate between these extremes. The statute, therefore, wisely said nothing about apportioning the freight.

2. We could not undertake to determine upon and allow freight pro rata itineris where it had been partly earned and partly unearned, without violating those principles of law which Congress specially cautioned us to observe. Left thus untrammeled by the statute in respect to the measure of freight due, we had either to take ground in opposition to what the most enlightened publicists have written on this subject, and the most distinguished jurists have approved, or to adopt principles which have thus acquired the sanction of the jurisprudence of the maritime world. It required little sagacity and less courage to do the latter. 3. If we had undertaken to split the freight into fractions, and to parcel it out, we should have failed in everything except doing injustice. A practical eye will readily see this. Suppose the ordinary voyage of a sailing-vessel to be thirty days. In ten days from the time of commencing to put cargo on board, she has completed, it may be, four-fifths of her entire earnings. Why? The cost of loading and payment of wages to officers and men, the supply of stores, and the other smaller and incidental but inevitable expenses, are the bulk of the cost of earning the entire freight. All she then requires are those propitious influences of the elements for which she is dependent, not on the power of man, but on the favor of Heaven. Divide the whole freight thus begun to be earned, according to the number of days out, or by any other rule, and not in one case out of a 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 you leave her owner just where every innocent man, whose person or property is attacked in violation of law, ought by the law to be left; that is, as nearly sound and whole as if he had not been struck.

What, then, is the practical result of these doctrines in the cases before us? Where a vessel has sailed under a charter-party with cargo on board she is entitled to net freight for the whole voyage in accordance with the terms of the charter, though destroyed when but one day out. Where she was destroyed while sailing in ballast under charter to take in cargo at her port of first destination, to be carried thence to a port of final destination, she is entitled to net freight on the cargo which she was thus to have taken on board. Where destroyed while sailing under one charter to deliver, at a designated port, cargo on board, and to bring other cargo home, she is entitled to net freight for the round trip. Where destroyed while sailing under two distinct and independent charters to carry, under the first, cargo to an intermediate port, and under the second, to carry other cargo to a port more distant, she is entitled to net freight under each charter, though destroyed before the fulfillment of

the first, if she has made it satisfactorily to appear by proper proof or necessary legal presumption, that she entered fairly at the same time on the commencement and prosecution of both voyages.

On these principles we decided, in June last, the case of the Sonora. She sailed from New York to Melbourne, and she was thence to sail to Akyab, in British India, to take on a cargo of rice and proceed to one of several designated European ports. The charter permitted an intermediate voyage in the China seas. Having made such an intermediate voyage to Hong Kong, she left that port for Akyab, and was destroyed by the Alabama in the straits of Malacca. In the judgment entered in favor of her owners, we allowed net freight for the cargo not on board at the time of her destruction. So, also, in the case of the Emma Jane, decided during the same month. The case of the Commonwealth, argued during the present month, affords an illustration of the application of the same principle. She sailed from New York to San Francisco with a large freight-list, and when about twenty-eight days out was destroyed by the Florida. After she had sailed, and before receiving information of her destruction, her owners executed a charter binding her to proceed from San Francisco to the Chincha Islands to take on guano deliverable at Hamburg. She had not sailed under the charter for the Chincha Islands. She had done nothing whatever under it. Her officers did not even hear of it until after her destruction. As to that charter, her gains were prospective, which the award declares "cannot properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies." We accordingly disallowed to her freight under that charter, but admitted her right to net freight on the voyage to San Francisco. We could not have done otherwise.

In the cases of the Highlander and the Jabez Snow, now before us, we have as little difficulty in allowing the freight. The Highlander was to proceed under charter to Akyab, Rangoon, or Bassein, (with the priv ilege of an intermediate voyage to a port in India or China,) to take on, at one of those ports, rice deliverable at Cork or Falmouth. She had performed the intermediate voyage, and was proceeding in ballast to Akyab for cargo when she was destroyed by the Alabama. The Jabez Snow carried with her two charters, under one of which she sailed from Cardiff with coal for Montevideo, and by the other she was to proceed thence to Callao to take on guano deliverable at Havre. She was destroyed by the Alabama, with the coal on board, before reaching Moutevideo. So far as we can judge, after a careful scrutiny of all the testi mony before us, each of these vessels, at the time of her destruction, was proceeding in good faith in the actual execution of the contracts which she had thus lawfully assumed. We know of nothing more which either of them could have done in the prosecution of the respective voyages thus commenced and suddenly terminated by the act of the most successful of the insurgent cruisers. We accordingly allow to each of them net freight on the cargo which she was thus proceeding to take on board when destroyed. While we do not agree with the claimants respecting the amounts which they are entitled to claim, these are the principles of law on which we have reached the conclusions embodied in the judg ments about to be entered.

RAYNER, J., dissenting.

The simulated transfer of a ship by American owners to a British subject, and the hoisting the British flag over said ship, when understood and intended by both parties to be done merely as a cover to prevent capture, and for the purpose of misleading and escaping a confederate cruiser during the late civil war, was not such a conveyance as divested the title of the owners. Such pretended transfer was null and void as against the right of the owners to sue for compensation before this court; and the ship having been destroyed by a confederate cruiser, her original owners are not deprived of the protection of the United States in the premises, and the consequent right to sue for relief before this court.

If the transfer of the ship had been valid and binding, the mortgage of the ship to the vendors, (the original owners,) with absolute control and authority over her, invested such mortgagees in possession with the rights and privileges of the mortgagors-preserved to them the protection of the United States in the premisesand secures to them their status as complainants before this court.

The forfeiture of a vessel to the United States, as provided for in the act of Congress of 1792 (sec. 4171 Rev. Stat.,) attaches not to the act of change of name and flag, and sale to a foreigner, but it is the failure to report the same to the collector of the proper collection-district, and to obtain a new American register, that works the forfeiture. Therefore, where a vessel in such case is destroyed before she can possibly return to such district, the owners do not, in consequence, lose any of their rights to redress, or forfeit the protection of the United States.

A statement of the case will be found in the opinion of the court.
Mr. C. C. Beaman, jr., for the complainants:

The complainants were directly injured by the destruction of the

vessel.

a. The transfer to Currie was merely colorable and was not a sale. b. The bark would have been condemned had she been brought before a prize court. (1 Kent Com., p. 87; Sir Wm. Scott in the Sechs Geschwistern, 4 C. Rob., p. 100; The Jemmy, 4 C. Rob. Rep., p. 31; The Omnibus, 6 C. Rob., p. 71; The Packet de Bilboa, 2 C. Rob., p. 133; The Andromeda, 2 Wallace, 481; The Cheshire, 3 Wallace, 231; The Baigorry, 2 Wallace, 474; The Bermuda, 3 Wallace, 514; The Jenny, 5 Wallace, 183.)

c. The sale was void as to third parties. (2 Kent Com., p. 521; Hamilton vs. Russell, 1 Cranch, 310; The Princess Charlotte, Browning & Lushington Rep., p. 75.)

d. The complainants are not estopped from asserting their ownership— 1. As against Currie. (Bigelow on Estoppel, p. 268; Van Rennselaer rs. Kearney, 11 Howard, 297; Ormsby et al. vs. Ihmsen, 34 Penn. State, 462; Gray vs. Bartlett, 20 Pick., 186; McCune vs. McMichael, 29 Georg., 312; Jewett vs. Miller, 10 N. Y., (Selden,) 402; Hill vs. Epply, 31 Penn., 331; Ferris vs. Coover, 10 Cal., 589; Tilton vs. Nelson, 24 Barb., 595; Storrs vs. Barker, 6 Johns. Ch., 166-170; Whitfield vs. Parfitt, 4 De Gex & Smale, 240; Myers vs. Willis, 17 C. B., 77; Langton vs. Horton, 5 Beav., 9; Ring vs. Franklin, 2 Hall, 1; Mark vs. Pell, 1 Johns. Ch., 594; Strong 28. Stewart, 4 Johns. Ch., 167; Steere vs. Steere, 5 Johns. Ch., 1;