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ology of all the acts of parliament, the captor is to receive one eighth part of the true value of the goods so to be restored; and I think I should depart from the principle which the clause of the act has in view, if I were to admit the application of a different rule in this case, merely because the captors had, for mutual convenience, given up the possession of the vessels at Oporto, and had suffered them to be navigated home under the care of their crews. It must be supposed that, in suffering them to go away, the captors made only a provisional restitution, subject to all rights, and upon an understanding that the valuation should be afterwards determined. The introduction of a different rule would be attended with this inconvenience, that the captors would be induced to bring the vessels themselves to the port of restitution, and to retain possession of them, subject to all the rights which captors have upon them, and with the probability of great inconvenience to the owners and their cargoes. At the same time, when I say that the true [* 223 ] rule is to take the valuation at the place of restitution, it must be understood that the value is to be considered with reference to the moment of arrival in port; for most undoubtedly the captors can have no right to a salvage on any additional value which the cargo may acquire by the payment of duties and other incidental expenses incurred afterwards. These are adventitious augmentations of the value, which must be deducted from the proportion which the captor is to receive, and the registrar and merchants will attend to the distinction.

The last question which I have to determine is, whether any and what salvage is due upon the freights of those vessels which had been chartered in this country, under an agreement to proceed to Oporto in ballast, for the purpose of bringing home these cargoes of wine, and, in consequence of the recapture, have been enabled to carry that purpose into effect. Now, it is clear that a service has been rendered to the vessels so circumstanced, and it is a service which goes the length of putting them in a condition to recover their whole freights, which depend entirely upon their final arrival here. As to the freights of the vessels that were taken up at Oporto, no salvage is asked upon them; and certainly it could not have been contended that any would be due, as the voyage had not commenced. But these vessels, which had gone to Oporto from this country under a charter-party for one entire voyage out and home, and had already performed the outward voyage, were in the course of earning their freights at the time of capture; they had actually broke ground, as the phrase is, and had entered upon that adventure out of which their profits were to arise. While lying in

The Progress. Edw.

[*224] the harbor of Oporto * they were in the course of earning their freights; they were in itinerè, and the salvage is as clearly due as if they had been captured at sea. If there had been two distinct voyages, as is sometimes the case in charter-parties, distinguishing the outward from the homeward voyage, the case would have assumed a different aspect; but where a ship goes out under a charter-party to proceed to her port of destination in ballast, and to receive her freight only upon her return, the court is not in the habit of dividing the salvage. These, therefore, are the determinations I have come to: First, that no salvage is due on the Portuguese property; secondly, that the valuation is to be taken at the port of restitution deductis deducendis; and, thirdly, that where a ship goes 'out under a charter-party for the voyage out and home, salvage is due upon the whole freight.

MADISON, Frost.

March 13, 1810.

Despatches on board a neutral ship, going from a hostile port to a consul of the enemy, resident in a neutral country, not a ground of condemnation.1

THIS American ship had been captured on her former voyage, by a French privateer, and carried into Dieppe, from whence, after obtaining her liberation, she was proceeding in ballast to Baltimore. The compulsion under which the vessel went into the blockaded port being sufficient to exempt her from the penalties of a breach of the blockade, the counsel for the captors now pressed for condemnation, on the ground that among the papers on board were some despatches from the enemy's government, which the master had not delivered

up. It was also objected that there were eight passengers [* 225 ] * and a small quantity of antimony on board; and, consequently, that the vessel must be considered as coming out with a cargo.

JUDGMENT.

SIR WILLIAM SCOTT. Proceedings have been instituted against

1 [See The Atalanta, 6 C. Rob. 440; The Rapid, Edw. 228.]

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this ship on various grounds, and, among others, on the ground that she had sailed from a blockaded port with a cargo and a number of passengers on board; but it appears that the few articles which she carried do not deserve the name of a cargo, and the passengers are not of a description to affix any hostile character to the vessel conveying them. The only remaining objection to restitution is, that the ship was carrying despatches from the government of the enemy to America; and the question is, in what manner this will operate upon the vessel. The court, in several instances, has had occasion to consider the effect of carrying papers of a public nature, and according to the different circumstances of the cases themselves its decisions have been governed. In some it has held, that the conveyance of despatches for the enemy did affix a hostile character to the ship; in others, attended with circumstances of a different description, it has held that the conveyance of them was not of a criminal nature, and that though the vessel was justly subject to the inconvenience of seizure and detention, it was not liable to confiscation. I have now to consider to which of these two classes the present case is to be assigned. The papers themselves had been transmitted to his Majesty's government, and an application has been made to the secretary of state for information respecting their real character. The manner in which they came on board is stated by the master, who says, in an affidavit, "that he received them from * a person [* 226 ] who is employed under Mr. Armstrong, the American ambassador at Paris, and that he understood they came from him." Certainly, if these papers are really of a hostile and illegal nature, it is not in the power of the American ambassador to sanction them, or to protect the conveyance of them. This court has held, in cases of convoy, that even the interposition of the sovereign of a neutral country will not take off the criminality of an illegal act; still less can an ambassador, acting only under a delegated authority from his sovereign, be permitted to assume a privilege so injurious to a belligerent whose rights it is his duty to respect. But the matter turns in this case upon the character of the papers, as far as government has thought it proper to characterize them. The answer from the secretary of state's office is, that No. 3 contains a despatch from the Danish government to the Danish consul-general at Philadelphia; and I think I am to infer from this account, negatively, that all the other papers are of an innocent nature. Now I am of opinion, that a communication from the Danish government to its own consul in America, does not necessarily imply any thing that is of a nature hostile or injurious to the interests of this country. It is not to be so presumed; such communications must be supposed to have refer

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ence to the business of the consul-general's office, which is to maintain the commercial relations of Denmark with America. If such communications were interdicted, the functions of the official persons would cease altogether. It has been said that this communication of the Danish government with one of its delegates in another country, through the medium of the American minister at Paris, is a matter

in which the neutral government is not at liberty to inter[ *227 ] pose and carry on, and that the neutral government is not to concert measures with the enemy, for the purpose of assisting in communications relating solely to his own commerce. But I take this to be a correspondence in which the American government is itself interested. A Danish consul-general in America is not stationed there merely for the purpose of Danish trade, but of Danish-American trade; his functions relate to the joint commerce in which the two countries are engaged, and the case, therefore, falls within the principle which has been laid down in the case of the Caroline, in regard to despatches from the enemy to his ambassador resident in a neutral country. In the transmission of these papers America may have a concern and an interest also; and, therefore, the case is not analogous to those in which neutral vessels have lent their services to convey despatches between an enemy's colony and the mother country. Here there is no such departure from neutrality as to subject the vessel to confiscation; yet I cannot help observing that the conveyance of papers of this description for the enemy, by American vessels, is a practice of which they would do well, for various reasons affecting their own safety and convenience, to be more abstemious in the indulgence than the observation of this court enables it to say they are. In this case the favorable presumption arising from the papers is strengthened by the character of the person from whom they were received; for it is a presumption which I am bound to maintain, that as the neutral master received these despatches from the hands of the American minister, there is in that circumstance a guaranty of the innocence of his conduct. This case is clearly not of a nature to call for serious judicial animadversion, and I shall, therefore, restore the ship, giving the captors their expenses.

Despatches from an agent of the enemy on board a neutral ship going from a neutral port to a port of the enemy; plea of ignorance on the part of the neutral master admitted.2

THIS was the case of an American ship which was captured on her voyage from New York to Tonningen, on suspicion of an intention to push into the Texel. But the question of destination being abandoned by the captors, they now contended that the case came within the principle laid down by the court in the case of the Atalanta, as it had been discovered, that among the papers given up by the master at the time of capture, there was a despatch addressed to the Dutch colonial minister at the Hague, under cover to a commercial house at Tonningen.

JUDGMENT.

SIR WILLIAM SCOTT. The question of destination being disposed of, I have now only to consider what will be the legal effect of carrying these despatches; and as it appears that the practice of conveying papers of this description for the enemy prevails to a considerable extent, I must take occasion to remind the proprietors of neutral vessels, that wherever it is indulged without sufficient caution, they will inevitably subject themselves to very grievous inconveniences. I should certainly be extremely unwilling to incur the imputation of imposing any restrictions upon the correspondence which neutral nations are entitled to maintain with the enemy, or, as it was suggested in argument, to lay down a rule which would in effect deter masters of vessels from receiving on board any private letters, as they cannot know what they may contain. But it must be understood, that where a party, from want of proper caution, suffers des- [229] patches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the circumstances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and still more, if the letters which are brought to him are addressed to persons resident in a hostile country, he is called upon to exercise the utmost

[Affirmed on appeal, March 9, 1811.]

2 [See The Atalanta, 6 C. Rob. 440.]