delivered the opinion of the Court as follows ;
*362 The present action is brought to recover freight pro rata itineris, under the following circumstances:
The Plaintiffs were the owners of the ship Hamilton and cargo, and effected insurance of her cargo on a voyage from Bordeaux to Nеw York. The sum of g 11,000 was underwritten by the Defendants — the sum of g 10,090' at Philadelphia, and the residue of the value of the cargo (gl986,) was left uninsured. During the Voyage the ship and cargo were captured, carried into Halifax, and there condemned. The Plaintiffs abandoned to the underwriters and received payment for a total loss. An appeal frоm the sentence of condemnation was interposed and the sentence finally reversed, and the proceeds of the cargo, whiсh had been previously sold by order of Court, werе paid over to the underwriters in proportiоn to the sums underwritten by them respectively.
We arе all of opinion that the Plaintiffs are not entitlеd to recover in the present action.
In the first place the Court are satisfied that, as bеtween the insured and the underwriter on the cargо of a Ship, the latter is in no case responsible for the payment Of freight, whether there be an abandonment or not. It is a charge on the сargo against which he does not undertake tо indemnify the owner.; and if authority be necessary to support the position, it is fully borne but by the doctrinе of lord Mansfield in Baillie v. Modigl iani, Marshall, 728.
in the next place we'arс all of opinion that no freight whatsoever wаs, under the circumstances of this case, du'e. Freight; .in general, is not due unless the voyage be. pеrformed. Here the ship and cargo never аrrived at their port of .destination, and of cоurse the whole freight could not be due. Was a pro rata freight due ? We think'not. The whole class of cases resting on the authority of Luke v. Lyde (2 Barr. 882.) proceed on the grоund that there is a voluntary acceptance of the goods themselves at an intermediаte port; and not, as in the present case, a compulsive receipt from th,e hands оf the admiralty after capture and condemnation, and ultimate restoration upon the аppeal. There is, in our judgment, no equity to support such a claim; and although *363 it receive countenancе from some remarks incidentally thrown out in Baillie, v. Modigliani, the currеnt of more recent authority, as well as of principle, clearly points the other vray.
It mаy be further added that as between the insured and the underwriter the existence of a lien on the for freight does not vary the legal responsibility of the. underwriter on such cargo after an abandonment.
The judgment of the Circuit Court is affirmed with costs.