to the cases of unlawful capture and seizure administered under the law of prize.

The voyage is interrupted in its midst, and we are to fix the values of the several elements constituting the loss, at the time and place of the destruction.

"According to the principles of law," as administered in all the courts, these claimants are entitled to recover for the loss of freights destroyed by the acts of these cruisers.

What shall be the freight allowed?

It cannot be the gross freight, because the allowance of that is expressly prohibited by the act.

The disallowance of gross freights is an implied permission or direction to allow net freights.

It is clear we are to allow some freight; if not gross freight, it must be net freight.

On this subject we derive instruction from the proceedings at Geneva. The arbitrators rejected the claim for gross freights, and did allow a large sum as net freights, as their proceedings show. There are two terms used in the act descriptive of freights which remain to be considered.

દ

What are "prospective" freights? Prospective" we conceive to be synonymous with "expected" freight, which is a term very often used in the books. We have already defined the term "prospective" as applied to profits as being the profits which the owner of goods hopes to gain from the difference in price between the port of shipment and the port of discharge, sometimes called profits and sometimes, also, expected profits.

"Prospective," as applied to freights, we conceive to mean that expectation of obtaining a cargo, and so of having a freight upon a voyage projected but not yet entered upon, as to which the owner has no certainty, no contract, no charter-party, but which in the law of insurance may or may not be held to give an interest on which insurance would attach.

It is called an "expectancy," as when a ship is going in ballast to a place where the shipowner owns goods, which she shall there take on board and carry to another port.1

Or where he does not own the goods, but has contracted to

1 Hart v. Del. Ins. Co., 2 Wash. C. C. 346.

purchase them, and has prepared funds to pay for them, and the goods are ready to be delivered to him to put on board.1

What are prospective freights may be further illustrated by Forbes v. Aspinall, 13 East, 323; Forbes v. Cowie, 1 Camp. 520.

In these cases the owner had no charter-party or other contract for freight, but goods were on board sufficient to purchase the remainder of the homeward cargo, that were saved and afterward bartered for goods which would have completed her homeward cargo. She had discharged part of her outward cargo and taken in fifty-five bales of cotton, part of her homeward cargo, and was lost in this condition. It was decided that she should recover only the freight on the fifty-five bales of cotton.2

Freight was insured on goods laden or to be laden, and a part of a cargo was taken on board at Gibraltar, and the ship was proceeding toward the Cape de Verde Islands with funds on board to purchase salt there to make up the cargo, when she was lost.

It was held that the insurable interest had commenced only in respect of the goods shipped at Gibraltar.

Another example of prospective freight may be found in Adams v. The Penn. Ins. Co., 1 Rawle, 97.

To apply a phrase before quoted, we should say "expectancy," not "coupled with an existing title," is "prospective.” 3

Congress seems to have had in view the probability that claims might be made not only for the freight actually on board or actually contracted for, but for the freight which the vessel, if not destroyed, might have subsequently earned, either with or without any definite grounds of expectation, and to have declared that all these should be excluded. They may have thought insurable interest on freight would be sought as a test of loss of freight, and intended to have excluded that test in these cases.

Such freights or compensation for the loss of the use of the vessel during repairs after collision have been demanded, and in some cases allowed.4

What meaning shall we give to the term "unearned freights"?

1 1 Parsons on Ins. 177.

2 So in Riley v. Hartford Ins. Co., 2 Conn. 368.

8 1 Arnould Ins. 2d Am. ed. *230.

4 Williamson v. Barrett, ubi sup.

The counsel for the government insists that under the use of the words unearned freights, net freights for the entire voyage cannot be allowed, but only net freights pro rata itineris peracti.

Having shown that freight is property, as clearly recognized in law as the ship or the cargo, or bullion, or coin; that although intangible and resting in action, it nevertheless is protected everywhere by the courts, and that it may be lost or destroyed or damaged, we feel constrained to award a sum sufficient in law to indemnify the claimants for this loss or damage, unless prohibited therefrom by the express provisions of this act.

We will not presume, except upon clear proof derived from the consideration of this statute, that Congress intended to take away from any of these claimants that which the courts of all nations under like circumstances protect.

We shall not, in the decision of the case now before us, which is the case of a vessel with her cargo actually on board, go further than is necessary for the decision of this and cases exactly similar. We only propose here to show that the term "unearned" does not apply to this principal case and to others similar to it. And in stating to what cases we conceive the word "unearned" does apply, we must not be understood as limiting it to precisely the cases we It is sufficient for the decision of this case to show that it may apply to other cases and does not apply to this.

name.

The term unearned can have no application as between the owner of the vessel and of the cargo in an action upon the contract of affreightment, as between them freight is never earned till complete delivery.

But as against underwriters on freight, freight is not unearned when anything has been done toward earning it under a contract or charter-party therefor. So soon as the ship is bound to the goods and the goods to the ship by a valid contract, and any forward step has been taken by the ship toward the performance of the contract having connection with no other thing, the underwriter is liable for a loss of freight.

Still more when, as in the present case, the cargo was on board and the ship was actually engaged in carrying the goods, the vessel as against wrong-doers had begun to earn, as against them freight was not unearned.

As against the owner of the goods under the contract it was not

earned, but as to him even it was not unearned-it was partly earned.

To what does the term apply?

Without deciding that it may not apply to other cases, we think it was intended to apply to cases where charter-parties had been made, binding both the ship and the charterer, where under the law of insurance the owner of the ship may have had an insurable interest in the amount of the freight to become due under the contract, but where no forward step had been taken by the vessel toward the execution of the charter; where nothing has been done under the contract, where nothing has been done which would not have been done if there had been no contract.

For example, a vessel being upon a passage from New York to San Francisco with a cargo, during this passage the owners charter her for a voyage from San Francisco to any other port. This charter-party executed would give the owners an insurable interest in the entire freight, not only upon the voyage to San Francisco not yet finished, but also in the second voyage to commence at San Francisco, but till she reaches San Francisco, and has discharged her cargo there, she has taken no step, done no act, toward earning the freight upon the second voyage. The freight in this voyage, though insurable, is in no part earned.

We think that the word "unearned," as used here, was not intended to exclude us from allowing freight on the voyage actually pending at the time of destruction, but was intended to exclude us from making the time when insurance on freight attaches the test of the right to freight; to exclude us from allowing freight in that class of cases where as against the underwriter the assured might recover for loss of freight, but in which the freight, though contracted for in a valid charter-party, was in no part earned, where the ship had not commenced the series of acts the performance of the whole of which would entitle her to the entire freight.

In allowing net freight in the particular case under consideration, and in similar cases, we shall feel bound to charge the gross freight in cases where we think justice shall require it, with interest on the value of the vessel, and also a sum to cover the probable depreciation of the vessel, in addition to the other items usually mentioned as needing to be deducted from the gross freight. The act gives interest on the value of the ship from the date of her destruction at

four per cent. We cannot give to the owner without charge the use of the same ship the value of which in contemplation of law the Government pays for on the day of its destruction.

The questions raised by the difference in currencies present great difficulties and embarrassments. If these claims were being considered by a board of assessors, as might have been under the treaty, and if the amount of the claims were to be paid directly from the exchequer of Great Britain, which has but one currency, it is extremely probable that every claim would have been reduced to the standard of gold, and that value which is the coin equivalent of these claims would have been awarded. It is quite possible, indeed quite probable, that this consideration induced the arbitrators to award a sum in gross, thus remitting all questions of value represented by or dependent upon the fluctuations of our currency to a tribunal to be established by the United States. These difficulties must now be met by us.

In the argument of the eminent counsel for the United States, we were urged to fix for the value of all goods purchased in coin or in any other currency than the legal tender currency of the United States, such a sum in currency as would be equivalent to the value of coin at the present time. But we see no principle upon which such a standard can be adopted. It would still be entirely uncertain how near or how far the sum so fixed would be from the value of gold as compared with currency at the time when the amounts awarded by us will be in fact paid. It would make two standards of value, for which we see no necessity, and no warrant in the law.

We are left to adopt some rule. It cannot be contended that in the case of goods bought during the war for currency we should reduce their nominal cost to the standard of coin at the day of purchase, and then reduce the coin-value to the value of currency of to-day, which it would be necessary to do if we would have only one standard of value.

We are entirely clear that such a course would be unjust to a large class of the claimants. It will give more equal justice to all to reduce the coin-prices actually paid in cases where purchases were made in coin to currency at the rate of the day of purchase, and enter the judgment for the currency cost so ascertained. We see no way in which we can justly adopt two standards.

To be sure, the rule last suggested will give judgment for a sum