When an enemy’s ship, containing free goods, is taken, if the captor carries the goods to the port of destination, he is entitled to the freight.  He stands in the place of the owner of the ship, and performs (by completing) the specific contract between the owner and charterer.  But he is not entitled, if he does not proceed and perform the original voyage.[153] The specific contract is performed in the one case, and not in the other.  But freight will be allowed to the captor, even though he does not carry the goods to the port of destination, if he carries them to his own country, and to the ports to which they would have been consigned, if not prevented by the regulations of the country of embarkation.[154]

Under certain circumstances the Captor is considered entitled to Freight, even though the goods are carried to his own country, and restored.

If the captor does anything to injure the property, or is guilty of misconduct, he may remain answerable for the effect of such misconduct or injury, in the way of set-off against him.[155]

No right of visitation and search, of capture, nor any other kind of belligerent right, can be exercised on board a public neutral vessel on the high seas.  But private vessels form no part of neutral territory, and when within the limits of another state, are not exempt from local jurisdiction.[156]

The right to take enemy’s property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed.  This rule has been steadily maintained in Great Britain, though in France and other countries it has been fluctuating.  For the first time, England has voluntarily abandoned this right in the present war.

If a neutral vessel, having enemy’s goods on board, is taken, and there is nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage.  The captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy’s goods by right of war; and although the whole freight has not been earned by the completion of the voyage, yet as the captor, by his act of seizure, has prevented its completion, his seizure operates to the same effect as an actual delivery of the goods to the consignee, and subjects him to the payment of the full freight.[157] In such case, however, the neutral master must have acted bona fide, and with strictly neutral conduct.

[Sidenote:  This Rule Changed by Convention.]

This Rule is often Changed by Convention; and it is generally stipulated that “free ships shall make free goods.”  The converse, though also sometimes the subject of treaty, does not of necessity hold, enemy’s ships do not make enemy’s goods.  Goods of neutrals, found on enemy’s ships, are bound to be restored.[158]

A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel; who has no right, according to modern practice, to condemn the neutral property.  Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen.[159]