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Iii3

§ 644.

freight is never paid to neutrals in respect of the carriage of contraband except as a matter of grace or as a matter of discretion. — In the American case of The Commercen [i Wheaton (Amer.), 382] Mr. Wheaton, in the headnote, states the law thus : „Freight is never due to the neutral carrier of contraband" ; and on page 394 in his note he says : „Freight and expenses are almost always ref used by the British prize courts to a carrier of contraband. There is but one case in the books of an exception to this rule, which was of saü cloth carried to Amsterdam, the contraband being in a small quantity amongst a variety of other articles." That was the case of The Neptunus.

Later on in America the point was definitely and specifically decided in the case of The Peterhof f [5 Wall. (Amer.), 28], where freight was refused although knowledge was negatived.

The argument of counsel for the claimants was that freight ought to be paid, except where there was knowledge of the contraband nature of the cargo. It is clear from the deliberations of the réprésentatives of the various Powers at the International Naval Conference, held in London in 1908—9, that it was assumed that freight was never payable in respect of contrahand."

Toutefois, exceptionnellement, la Cour de Londres n'a pas refusé aux armateurs neutres une somme a titre de fret, même du chef de transport d'articles de contrebande et confisqués comme tels. C'est ce qu'elle a fait en cause du Prins der Nederlanden, n°. 3 (1326), oü eüe admit la parfaite bonne foi de la compagnie de navigation armateur et lui aüoua pom ce motii, et „in the exercise of her discretion", le fret réclamé.

„I am not sure that the décision in The Neptunus is expressly in point in this case, nor am I sure that the décision in The Jeanne, n". 2 (483) covers it. I do not think it does. I think, on the whole, that the case is not expressly governed by authority....

The general rule is that the carriage of contraband forfeits the right to freight; but there is a higher rule than that, and it is that the Court must do justice. I have to see in this case whether there is any ground of justice, either upon fact or upon presumption, upon which it ought to be held that this shipowner has forfeited his claim to have freight for these goods — that is, has forfeited the right to come to the Court, and to ask the Court, upon recognising his innocence of complicity in a contraband transaction, to direct that he shaü receive payment of freight. I put the power of the Court no higher than that. I do not conceive that there is — indeed, I conceive that there is not — power in the Court to award freight to a shipowner who is knowingly a party to a contraband transaction. On the other hand, I conceive that there is power in the Court to award freight to a shipowner who unknowingly carries contraband, and who is not a party in intent to'a contraband transaction."

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