for expenses necessarily to be incurred in completing the contract and in conveying the cargo to the point of delivery. To allow gross freight under these circumstances would in effect not merely reimburse the owner, but render the seizure a matter of profit to him, and we do not understand that punitive damages should be recovered in the cases now before us. The vessel having been destroyed before the completion of the voyage, has not been so long employed as the contract contemplated, her crew have received less wages, and her hull and outfit have received less deterioration. She has only earned freight pro tanto. On the other hand, the expenses of freight earning are much greater at the beginning of the voyage than at any other period, for then advances are made seamen, stores are shipped, port charges and the cost of loading have to be met. Therefore, to divide the total freight by the number of days out of port would not be fair to the ship-owner; to deduct from the total freight the cost of the voyage from the place of destruction to port of destination would be a fairer rule, could those expenses be ascertained.

To compute the amount of this freight in each instance is practically impossible, so that the court is forced to the adoption of some general rule which in our opinion is fair in result. The difficulty is not a novel one, and the method of solution not without precedent. Those familiar with the proceedings of prize courts know that a substantially arbitrary rule is there often adopted in practice to enforce justice, and now, nearly a hundred years after the events from which these claims arise, when all witnesses are dead and many records destroyed, we are forced to this course, as it is evidently impossible to estimate in every instance precisely the proportion of freight earned. Where such an estimate can be made we shall make it, in other cases we shall adopt a general rule.

In seeking for such a rule, we learn that in commercial cities, in the adjustment of average losses, there is a practice to award arbitrarily two-thirds of the full freight on the immediate voyage. This course was in effect followed by the commissioners under the treaty of 1831 with France, who made a similar allowance as a fair measure of the increase in value of the cargo by reason of the distance to which it had been transported at the time of capture; and the award was made to the shipper if he had paid freight; to the ship-owner if the freight had not been paid.

After carefully examining the cases before us we conclude that this rule is substantially just, and we adopt it.

This brings us to another point. The Nancy was under charter for a round voyage-Baltimore to Jamaica and return. She was destroyed on the outward voyage. Is she entitled to an allowance for freight based upon the entire contract contained in the charter-party? As against an insurer or tort-feasor the inchoate right to freight vests when the vessel breaks ground "on the voyage described in the charter-party" (supra). An insurable interest in freight can not spring from a mere "expectancy," but may spring from an "expectancy” when this is coupled with "a present existing title." (Lucena v. Crawford, supra.)

In cases of general average for jettison, Lowndes states the rule to be that "when a ship is chartered to fetch or carry a cargo belonging 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.)

It has been held in this country that where a gross sum was to be paid as freight for a voyage out and return, the principal object of the voyage being to obtain a return cargo, the freight for the whole trip must contribute to general average on the outward voyage. (The Mary, 1 Sprague's Decisions, 17.) The same rule has been adopted in cases of salvage. (The Nathanial Hooper, 3 Sumner, 542; The Progress, Edwards, 210; The Dorothy Foster, 6 C. Rob. 88; see also Livingston v. Columbia Insurance Company, 3 Johns, N. Y. 49; Hart v. Delaware Insurance Company, 2 Wash. C. C. 346.)

The decisions on this question in the United States do not go so far as those in England, but we lean to the doctrine of Sir William Scott and Dr. Lushington, as better applicable to the cases now before us, that when a vessel is actually under contract for a voyage from one port to another, thence to proceed to a third, she has such "a present existing title" in the freight money of the entire voyage as to authorize a recovery based upon the total freight money for the round trip.

Of course she is not entitled to gross freight, and we must not be understood as intending any application of this principle to a vessel proceeding under a mere "expectancy" of finding cargo at her first port of call. The principle only covers those cases where there is an assurance of freight from her first port of call to her second, and a price stipulated to be paid therefor.

We have discussed and ruled upon as many of the general questions submitted in the argument as it seems to us wise now to decide, either for counsel's convenience or in justice to the Government or the claimants. Other points which have arisen in the long argument we shall consider as they are brought before us in specific cases. The object of obtaining from the court a ruling upon general principles is in our opinion now sufficiently attained.

We file herewith, that they may be reported to Congress, our conclusions of fact and law in many cases. This opinion, with those already delivered, contain the conclusions which in our judgment affect the liability of the United States therefor.

THE SHIP CONCORD1 [AND OTHER CASES]

[French Spoliations 1589, 490, 507, 1587, 2556, 5361, 4037, 600. Decided April 30, 1900]

On the Proofs

The ship Concord, on a voyage from Canton to Philadelphia, is seized February 6, 1799, by a French privateer and carried into the Isle of France, where the vessel and cargo are "confiscated" on the ground that the GovernorGeneral of the Isle of France has proclaimed that "France and the United States are in a state of hostilities from the month of July, 1798, and that tribunals are required to decree the confiscation of all American vessels brought into this port with the cargoes on board."

I. At various times between 1793 and 1800 there was much that looked like war between France and the United States, but the United States never ceased to hold France pecuniarily responsible for the acts of her cruisers and privateers, and France never denied her responsibility for unjustifiable seizures and condemnations. A defense which France could not now set up the United States can not. Where France claimed no exemption the United States can claim none for her, and where they can claim none for her they can set up none for themselves. Liability is determined by the liability of France.

II. Between 1793 and 1800 the assertion in French courts of belligerent rights was in remote places. The tribunals in the immediate presence of the French Government held of the Act of July 9, 1798 2 (Stat. L. 578), that "it does not belong to the tribunals to take notice of any step that a foreign power may take as constituting a state of war between France and itself."

1 Court of Claims Reports, vol. 35, page 432.

2 Supra, p. 65.

III. Under the French spoliation act an indebtedness on the part of original claimants to the United States is not strictly a set-off, as no judgment can be rendered in these cases; but it is an equity which Congress may well consider, inasmuch as the relief to be afforded is a matter of conscience and equity.1

NOTT, Ch. J., delivered the opinion of the court:

On the 28th of November, 1798, the American ship Concord sailed from Canton bound for Philadelphia.

On the 6th of February, 1799, she was stopped on the high seas by the French frigate La Prudente. The captain of the frigate found nothing in the ship's papers to justify detention, and accordingly allowed her to proceed. But upon further reflection, after an interval of several hours, he reconsidered his determination and resolved to take the responsibility of seizing the Concord and of sending her in to the Isle of France for a further examination by the authorities. The story of her seizure is best told by her captain in his protest:

She proved to be the French frigate or corsair La Prudente, Cap. Joliff, from the Isle of France, on a cruise, who, after strictly examining my ship's papers, bills of lading, etc., ordered nis interpreter to inform me it was not in his power to detain me, as my papers showed the ship and cargo to be neutral property; at same time returned me my papers with orders to proceed on my voyage. Accordingly I returned on board the Concord; at 2 p.m. made sail on our course, the frigate doing the same, but standing about two points more north; at half past 3 p.m. hoisted colors on board the frigate; we hoisted ours also; the frigate came up; the captain ordered us to heave to until he sent his boat on board, which came with three officers, and orders for me or the supercargo to repair on board the Prudente, with all letters, papers, invoices, etc., relating to ship or cargo. Accordingly Mr. Dobell, supercargo of the Concord, took the papers and went on board the frigate. Soon after the boat returned for Mr. Dobell's desk and small box, containing sundry orders, invoices, etc., respecting the outward cargo. The 2d officer and 2d boy were also taken on board with Mr. Dobell, and all detained during the night. At 8 p.m. the frigate hailed and ordered the

1 Pages 433 to 441 of this case are omitted, as being merely lists of claimants and amounts claimed. They contain nothing of importance for the purposes of this volume.

officers to make sail after her, and steer W. b. N. during the night. At 6 a.m. the frigate's boat came for me. I went on board. The captain demanded my former bills of lading for outward cargo, for which I went on board the Concord and returned again on board the frigate. After a long and tedious examination of all trivial papers the captain determined to send us to the Isle of France. At 4 p.m. on the eighth began to shift crews. Cap. Joliff took my chief mate, seventeen of the Concord's crew on board the frigate, sent some Frenchmen on board, sealed up all the Concord's papers, and dispatched us with prize master for the Isle of France, where we arrived on the 10th day of March, as aforesaid.

On a subsequent day the prize court in the Isle of France rendered a decree "confiscating" the ship and cargo. The decree recites that the ship Concord sailed under the American flag and an American passport; that the captain, officers, and crew were all subjects of that nation, and that her cargo belonged to American subjects residing in Philadelphia. In other words, the Concord was one of the very few of the American vessels whose conduct, ownership, and the character of whose cargo were, in the opinion of French tribunals, each and all absolutely unexceptionable.

Nevertheless, the tribunal pronounced a decree of confiscation (not condemnation) upon the sole ground that the Governor-General of the Isle of France had on the 23d day of June, 1799, published a proclamation declaring that France and the United States were and had been in a state of hostility from the 9th day of July, 1798, and requiring all tribunals to confiscate all American vessels which had been or should be brought into French ports, with the cargoes on board. The distinction between "confiscated" and "condemned" rested on certain French decrees. If a vessel was sailing under a neutral flag, she or her cargo might be condemned for cause; if she were an enemy, she and her cargo would thereby be liable to confiscation.

It is apparent that some unfortunate American vessel whose master carried a commission under the Act of July 9, 1798 (1 Stat. L. 578), had fallen into the hands of the French governor, and that he had thereupon, without instructions from his own Government, proclaimed war as existing between the two countries. It is a general principle that while a nation is enjoying the advantages of peace she must be held to the obligations of peace and be responsible, among other things, for the acts of her officers and agents, but that when