"Fortuna"-(Koedt)
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1809 |
| Date | 27 January 1809 |
| Court | High Court of Admiralty |
English Reports Citation: 165 E.R. 1031
IN THE HIGH COURT OF ADMIRALTY
S C 2 Eng Pr. Cas 17. Not applied, Cargo ex "Argos," 1872, L R 5, P C. 163. Adopted, The "Juno," [1916] P 174. Referred to, The "Prins der Nederlanden," [1921] 2 A C 761 See also, The "St Helena," [1916] P 625
[56] " fobtuna " - (Koedt) Jan 27, 1809 - Freight not clue to captor on goods not brought to the original port of destination, though afterwards sold in this country. [S C 2 Eng Pr. Cas 17. Not applied, Cargo ex " Argos" 1872, L R 5, P C. 163. Adopted, The " Juno," [1916] P 174. Referred to, The " Pnns der Nederlanden," [1921] 2 A C 761 See also, The " St Helena" [1916] P 625 ] The question in this case was whether freight was due to the Crown on certain Portuguese goods on board this and other Danish ships which had been detained under the Danish embargo (2 Sept 1807) and afterwards condemned to the Crown On behalf of the Crown, it t/'a* contended - That these cases were strictly within the principle of a virtual election, as the cargoes had actually been sold in this country , and, although at the tune of capture they might have gone on to Portugal, the claimants must have brought them back again as they would have arrived there on the eye of the irruption of the French into that country, and consequently that it would not have been an effectual arrival for the purposes of sale On the other side, it was urged - That the contract of affreightment was not fulfilled inasmuch as these cargoes were not carried to their port of destination, and that the grounds suggested were insufficient to shew a virtual election of the ports of this country. Judgment - St-r W. Scott I have no doubt whatever upon the rule to be applied to these cases,, as it arises out of the general principle It is a claim for freight on the part of the Crown, upon, a supposed right of the captor, to whom the Crown is substituted, and whose right is derived from the owner of the captured vessel It is possible that, under certain circumstances, the Crown may not succeed to all the rights of the captor, and still more possible that the captor may not succeed [57] to all the rights of the owner of the captured vessel , but the first enquiry is, whether the owner would have been entitled to freight. He could have no right but upon an entire execution of the contract, or such an execution as he could effect consistently with the incapacities under which the cargo might labour. Where * This was a...
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The Juno
...in which Lord Stowell dealt with the matter - - his statement of the principle. The first is the case of The Fortuna (Roscoe, vol. 2.17; Edw. 56): "The general principle has been stated very correctly, that where a neutral vessel is brought in on account of the cargo, the ship is discharged......
- The Sado Maru