convey the goods, and so entitle himself to his whole freight; but if he is unable, or if he declines to do this, and the goods are there received by the merchant, the general rule of the ancient maritime law is, that freight shall be paid according to the proportion of the voyage performed, pro rata itineris peracti (p). (1)

Some writers (q) have endeavored to trace this rule to the Digest of Justinian, but the passages re- [† 435] ferred to by them do not appear to contain such a regulation. The rule, however, is, without doubt, extremely ancient. It is to be found in the collection called the Rhodian Laws (r), but which collection is now generally agreed to be of a later date than the time of Justinian (s); and also in the Consolato del Mare (t). The rule, as laid down in the laws of Oleron (u), is to the following effect. If a ship depart with a cargo from Bordeaux, or other place, and it happens that the ship is disabled, and as much of the cargo is saved as possible, the merchants and master enter into a great debate, and the merchants demand to have their goods of the master, they may have them, upon paying freight for so much of the voyage as the ship has advanced, rateably and in pro

(p) The Ordinance of Rotterdam differs in this respect from the general rule; for it allows the merchant to take his goods, paying a reasonable portion of the freight in case the ship may be repaired in a short time. Art. 147; 2 Magens,

104.

(9) Roccus, not. 81.

(r) Per Lord Mansfield in Luke v. Lyde, 2 Burr. 889.

(s) Schomberg's Dissertation on these

laws. The only rule that can be distinctly and authoritatively traced to the institution of Rhodes, is the law de Jactu, quoted and adopted in the Dig. 14, 2, 1. See the 10th chapter of this part.

(t) Per Lord Mansfield in Eke v. Lyde, 2 Burr. 889, alluding probably to chap. 193.

(u) Art. 4, and see Ordin. of Wisbuy, art. 16, 37.

(1) Freight pro rata itineris is not ordinarily due, unless there has been a voluntary acceptance of the goods at an intermediate port; and not where there has been an acceptance from mere necessity, occasioned by an overwhelming calamity or superior force. The Ship Nathaniel Hooper, 3 Sumner, 542; 3 Kent, (5th ed.) 228, 229; Vance v. Clark, 1 Miller, (Lou.) 324; Tio v. Vance, 11 Louis. 199; Escopiniche v. Stewart, 2 Conn. 262; Harris v. Rand, 4 N. Hamp. 261; Welch v. Hicks, 6 Cowen, 504; Robinson v. Mar. Ins. Co. 2 John. 253; Caze v. Balt. Ins. Co. 7 Cranch, 258; Coffin v. Storer, 5 Mass. 522 ; D ›rr v. N. Eng. Mar. Ins. Co. 4 Mass. 221; Portland Bank v. Stubbs, 6 Mass. 420; Griggs v. Austin, 3 Pick. 20; Bradstreet v. Columbian Ins. Co. 9 John. 17; Herbert v. Hallet, 3 John. Cas. 93; post, 455, note; Parsons v. Hardy, 14 Wendell, 215; Hurtin v. Union Ins. Co. 1 Wash. C. C. 530; Lorent v. Kentring, 1 N. & M. 132.

Where goods shipped on freight to a certain port, after part performance of the voyage, were carried to a different port, where they were taken and sold by a stranger, who remitted the proceeds to the shipper; it was held, that the reception of such proceeds by the shipper, was not equivalent to a voluntary acceptance of the goods, so as to render him liable for freight pro rata. Escopiniche v. Stewart, 2 Conn. 391. >

portion, if the master pleases; but if the master will, he may repair his ship, if he can do it speedily; and if not, he may hire another ship to complete the voyage, and shall have his freight of the goods, to be reckoned according to their proportion to the whole cargo; and the goods shall pay the costs of their salvage. The rule is also to be found in Roccus (x), (who cites several more ancient authors in support of it), and all the subsequent writers on maritime law; and is adopted in most of the foreign ordinances, particularly in the French ordinance (y), which declares, that "The master shall be paid the freight of goods saved from shipwreck, if he conveys them to the place of destination. If he cannot find a vessel to convey the goods saved, he shall be paid freight in proportion only to the voyage performed." So, "if the master be obliged to repair his vessel during the voyage, the merchant must wait, or pay the entire freight; and in case the vessel cannot be repaired, the master shall be obliged forthwith to hire another; and if he cannot find one, he shall be paid freight in the proportion only of what the voyage shall be advanced "(z). These obligatory words are said to mean

only that the master must hire another ship if he [† 436] will gain his whole freight (a). But in the case of interdiction of commerce and return of the ship, this ordinance prescribes a different rule, which I have before noticed: "If there happen a prohibition of commerce with the country to which the ship is sailing, and the master be obliged to return with his cargo, the outward freight alone shall be due to the master, although the ship be freighted out and home" (b).

With regard to capture and ransom, the author of the Guidon, speaking of the case where the goods only are taken by pirates and the ship discharged, and the goods are afterwards ransomed, says, that "If the master will not contribute to the ransom, he shall lose his whole freight; but if he contributes, he shall be paid freight as far as the place of the capture, as well in the case of affreightment by charter-party as otherwise; and if he furnishes another ship, to relade the goods, he shall be paid his whole freight" (c). Upon this subject the French Ordinance provides, "that if the ship and goods are ransomed, the master shall be paid his freight as far as the place of capture, even his whole freight, if he con

(x) Loc. sup. cit.

(y) Liv. 3, tit. 3; Fret. art. 21 and 22; and Code de Com. art. 303, as to payment to the place of shipwreck.

(z) Same title, art. 11, and Code de

Com. art. 296.

(a) Valin on the article.

(b) Same title, art. 15, and Code de Com. art. 299.

(c) Guidon, chap. 6, art. 7.

veys the goods to the place of destination, he contributing to the ransom" (d). Although ransom is now prohibited by the law of England, (1) yet this doctrine may apply to the case of capture and recapture; and, accordingly, in an action brought by a seaman for his wages, in the case of a ship taken and retaken, and which reached the port of destination (e), Lord Eldon, before whom the cause was tried, held that the wages were payable, because, said his Lordship, "the ship on her arrival was entitled to freight" (f).

Opon this subject of the apportionment of freight, Malyne says, "If the ship in her voyage become unable without the master's fault, or that the master or ship be arrested by some authority of magistrates in her way, the master may either mend his ship or freight another. But in case the merchant agree not thereunto, then the master shall at least recover his freight, so far as he hath deserved it" (g). The same author also mentions the following case: A merchant took a ship to freight, and put in the †master and mariners, [† 437] and victualled the ship at his own expense, and by a charter-party engaged to pay the owner for the use of ship and furniture 201. every month, at her return into the river Thames. The merchant laded the ship for the Streights, and to go from port to port, and to several places with merchandise; and after about two years, the ship, having taken in a cargo at Barbary, was, on her return to London, cast away by a tempest near Dover; and the goods were saved. The merchant refused to pay the freight, because the ship did not arrive in the river Thames, according to the words of the charter-party. "Herein," says the author, "the owner was much wronged, for the money is due monthly, and the place was named only to signify the time when the money due was to be paid ;" but he does not inform us whether the question was ever brought before a Court of justice, or whether or no the merchant finally paid any part of the freight (h). His opinion, however, is confirmed by the following case.

The ship Lord Duncan was let to freight for twelve calendar months certain, from the 24th of September, 1806, and from thence for such longer period, if any, as the merchants

(d) Liv. 3, tit. 3; Fret. art. 19, and Code de Com. art. 303.

(e) Bergstrom v. Mills, Westminster Sit. in Mich. Term, 40 Geo. 3; 3 Esp.

N. P. C. 36.

(f) See before, sect. 1 of this chapter. (g) Malyne, p. 98.

(h) Malyne, p. 101.

(1) It is not prohibited by our law. Girard v. Ware, 1 Peters, C. C. 142; The Saratoga, 2 Gallison, 164; Maisonnaire v. Kenting, ib. 336; Brooks v. Dorr, 2 Mass. 39; Spafferd v. Darge, 14 Mass. 66. >

should detain her; the ship to be under their entire control, so far as related to all orders for sailing, destination, and delay. The merchants covenanted to pay for the hire and service of the ship for the twelve months, and such longer time as they should keep her, the freight and rate following, viz, twentyfour shillings per calendar month per ton, being 11197. 12s. per month, commencing from the before-mentioned day, and ending when the ship should be returned to the river THAMES, and thereby the freighters be declared to be discharged; it being understood that they should not be at liberty to discharge the ship at any other place but within the port of London; the freight to be paid in the proportions, and at the periods following; viz., two months at the execution of the charter-party; two months more at the end of six calendar months from the said 24th of September; two months more at the end of ten calendar months; two months more at the end of fourteen calendar months, should the ship be so long employed; and in like manner two months more at the end of every succeeding two calendar months, until the ship should be discharged, and immediately upon such dis[438] charge the balance to †be paid. The ship was taken into the employ of the merchants, and between ten and twelve months from the said 24th of September, was destroyed at Saint Domingo by an accidental fire. The merchants contended that the right to the portions of freight depended upon the safety of the ship at the particular times at which they were made payable, so that the loss of the ship at the time before-mentioned confined the claim of the owner to six months, for which period he had been paid. But the Court of King's Bench decided that the times fixed for the actual payment were to be considered only as postponing for the merchants convenience the actual payment of sums then due, to a future period; not as creating a contingency whether they should ever be paid at all; and that each month's freight was earned and became completely due at the end of each month, the actual payment only being postponed (i). The distinctions between this case and that of Smith v. Wilson (which will be mentioned hereafter) (k), both as to the terms of the contract and the subsequent events, will be obvious to the reader.

This rule of the maritime law, which directs the payment of freight according to the portion of the voyage performed

(i) Havelock v. Geddes and Others, 10 East, 555. See before, chap. 1 of this part, sect. 4, p. 267. See also Crozier v.

Smith, 1 Scott, N. R. 338.

(k) See the last section of this chapter.

pro rata itineris peracti, is open to much observation, and to many difficulties. I have been able to collect upon it only the following decisions of English Courts.

Lutwidge, the owner of a ship called the Wharton of Whitehaven, let his ship by a charter-party to Archibald Grey and others, merchants at Glasgow, for a voyage from Glasgow to Maryland or Virginia, and back from thence to Glasgow, and was to receive freight from them for the homeward cargo only, at the rate of 81. 12s. per ton of tobacco, computing four hogsheads to the ton; one-half to be paid immediately after the ship's discharge at Glasgow, and the other half within six months after such discharge. The ship sailed to Virginia, and there delivered her outward cargo, and took on board from the merchant's factor a cargo of tobacco, consisting of one hundred and ninety-nine hogsheads, part of which was their property; the residue belonged to other persons, and was put on board by the factor to complete the lading, in pursuance of directions given to him for that purpose by his principals, in case the outward cargo should † not [† 439] enable him to purchase a full lading on their account. Grey & Co. insured their part of the cargo with persons living at Bristol; the other part was not insured. On the return homeward, the ship was unfortunately cast away at Youghall, in Ireland, which is within a very short distance of Glasgow, and part of the cargo, to the amount of one hundred and sixtythree hogsheads, was saved by the assistance of the officers of the customs at Youghall, and deposited in the Custom-house there. Lutwidge, the owner, as soon as he knew of the misfortune, informed Grey & Co. of it, and told them he should provide another ship to transport the tobacco which was saved. Grey & Co. abandoned their part of the cargo to their insurers, and indorsed over the bills of lading to them. Lutwidge provided another ship at Youghall, but the insurers took the part of the cargo abandoned to them, and conveyed it to Bristol. The agent of the proprietors of the other part of the cargo was willing to have laded it on board the ship thus provided, if the master thereof would sign bills of lading to deliver it at Glasgow, in conformity with the original charter-party; but the master refused to give such bills of lading, or to oblige himself to deliver it at Glasgow, offering only to give receipts obliging himself to deliver it in Great Britain. And the agent, suspecting that he meant to take it to Whitehaven, and not Glasgow, refused to deliver it to him upon those terms, and sent it by another vessel to Glasgow, where several hogsheads were found so much damaged, that