delivered the opinion of the court, and, after stating the facts, proceeded as follows:
Upon the argument no specific objection was t&ken to the restitution of any of the. property claimed, excepting that included iii the claim of Messrs. Ivens & Burnett. This shipment was made by Messrs,
Burnett & Co. of London, to Messrs. Ivens & Burnett of St. Michaels, and the invoices declare the goods to be by order, and for áccount and risk; of the lattey gentlemen.' It is contended, in behalf of the *168captors, that both houses are composed of the same persons, viz. William Si,' Burnett, who is domiciled at London, and William Ivensj who is domiciled at St. Michaels; and that the documentary evidence,, and private correspondence, show that the shipment was made on account of the hostile house. If the fact of . the identity of the two houses were material to a decision of the cause, it might furnish a proper ground for ¿n order for farther proof. But admitting the fact to be as the captors contend, we are satisfied that it can be of no avail to them. It is clear, from the whole documentary evidence, that this shipment was not made on the account and risk of the hostile housej but bona fide on’ the account and risk of the neutral house. It does not, therefore, present a case for the application of the principle, that the property of a house of trade in . the enemy’s country is condemnable as prize, notwithstanding the neutral domicil of one of its partners. On the contrary, it presents a' case for the application- of the ordinary principle which subjects to confiscation, jure belli, the share of a partner, in a neutral house, where his own domicil is in a hostile country. And, on this view, the decision of the circuit court is entirely correct, arid is consistent with the doctrines established in the cases cited at the. argument.
The next inquiry is, as to the freight decreed to the master. As no appeal was interposed to the decree of the district court, allowing the whole freight for the whole voyage, the question, whether more than a pro rata freight was due, (a question which would otherwise have deserved grave cbpsi*169deration,), does not properly arise. The only dis* mission which can now be entertained, is,, whether the freight so decreed ought not to have been o ° . charged upon the whole caygo, instead of being charged upon a portion of it. And tve are all of opinion that it was properly a charge upon the whole cargo. Although capture. be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy’s property on board* is a strictly justifiable exercise of the rights of war; It is no wrong done, to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in pennant to the neutral fob the looses which he may sustain by á.lawful exercise of belligerant rights.' It is the misfortune of the neutral, and not the fault of the belligerant. By the capture, the captors are substituted in lieu of the original owners, and they take the property cuni emere. They are, therefore, responsible for the-freight which then attached upon the property, of which the sentence, of condemnation ascertains them to be the rightful owners succeeding to the former proprietors. So far the rule seems perfectly equitable ; but to press it farther, áftd charge them with the freight of goods which they hate never received, or with the burden of a charter party into which théy have never entered, would be unreasonable in ■ itself, and inconsistent with the admitted principles of prize law. It might, in a case of justifiable capture, by the condemnation of á single bale of goods, *170lead the captors to their ruin with the stipulated freight of a whole cargo.
On the whole, We are all of opinion, that the deCJ.ee Qf fhe circuit court ought to be affirmed, except; so far as k charges the freight upon the property condemned, and' the moiety claimed by Messrs. Ivens & Burnetti and as. to this, it ought to be. reversed, and that the freight should, he decreed to be a charge Upon the whole cargo, to he paid by each parcel thereof, in proportion to its value.
Decree affirmed, except as to the freight.i
It has been held, that the charter party is not the 'measure by which the captor is, in all cases, bound, even where no fraud is imp uted to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of' freight to an extraordinary height, eaptórs are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, when a ship is carrying, on an ordinary trade, the charter party is undoubtedly the rule of valuation, unless impeached ; the captor puts himself in the place of the owner of the cargo, and takes with that specific lieirupon it. But a very different rule is to he applied, when the trade is subjected to very, extraordinary risk and hazard, from its connexion’ with the events of war. and the redoubled activity and success of the belligerant cruisers. '5 Hob. 82. The Twilling Riget-
1 Rob. 1. The Vigilantia. 4 Rob. 31. The Jemmy. 3 Rob. 41. The Jonge Amelia, cited in the case of the Portland.
3 Rob. 101. The Race Horse. See also the Martha and the Hamilton, in a note to the same case.