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re-99

§ 637.

ded) where the whole intended voyage has not been performed. I have looked at a translation of the sections of the code referred to [dispositions relatives au „Distanzfracht", voir§ 631 du Code de commerce allemand] and it seems to me that many serious questions of law might be raised in an action to recover such freight. I was not informed, and I do not know, whether such an> action has ever been brought in Germany, in cases where ships have been captured — most probably, almost certainly, not. — The principle which gave birth to the rule referred to was not whether any and what sum could be recovered at law under the termS of the particular contract of affreightment. The rule was based on the broad business ground that the goods had not been carried to the place where the contracting parties intended them to be delivered, anddisposed of. — It has been stated on oath in this case that there was no market in the United Kingdom for this particular kind of Kentucky tobacco — that the European market for it was Germany and Holland. That may or may not be the fact. If it be, the hardship upon the neutral owners of having to pay freight to the captor is obvious. It has been pointed out in the authorities that sometimes the advantage would be on the side of the cargo and sometimes on the side of the vessel. But „the possible advantage or disadvantage of an interruption of the original intended voyage is but an accidental circumstance to which the Court wijl but slightly attend. It would introducé a labyrinth of minute considerations, through which the Court could not find its way." It would also necessitate, in cases like the present, a close investigation of all the terms, conditions, and circumstances involved in the contractual obligations of the parties, and of their rights and liabüities under foreign municipal law, which this Court has always refused to undertake. — The old rule, as stated above, must, in my opinion, still be adhered to as part of the law of Nations. — This parcel pf the cargo wül therefore be released to the neutral owners without carrying the burden of any freight." Dans le même sens : Australia (303).

„The motion of the Crown for the freight due by (the firm at Colombo, Ceylon) to the owners of the (enemy) steamship Australia rests upon a weü-known rule of prize law, which was recently stated by Sir Samuel Evans in The Roland (82) .... In the present case the Australia was brought on capture to her port of destination — namely, Colombo — and (prima facie) the claim to freight is good .... No authority was cited for the proposition that a captor's right to freight can be affected by any private arrangement of this kind between the shipping owner's agents, and in the absence of such authority I am not prepared to accept it. . . ."

Voir aussi la décision Heinz (79) : confiscation du fret impayé, au profit de 1'Etat capteur qui avait transporté vers son port de destination la cargaison d'un navire ennemi (aUemand) capturé.

Sous une autre forme la même question se posa dans 1'affaire du Floating craft of the ,,Deutsches Kohlendepöt", Port-Said (439).

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