behalf of the consignee; and if the consignee has assigned the bill of lading, and the rights of the consignor be still interposed and contested, it is safest for the master to deposit the goods with some bailee, until the rights of the claimants are settled, as they can always be, upon a bill of interpleader in chancery, to be filed by the master." Having made a consignment, the consignor or seller has not an unlimited power to vary it at pleasure. He may do it only for the purpose of protecting himself against the insolvency of the buyer or consignee.

(5.) Of the responsibility of the ship owner.

The causes which will excuse the owners and master for the non-delivery of the cargo, must be events falling within the meaning of one of the expressions, act of God, and public enemies; or they must arise from some event expressly provided for in the charter party. It is well settled in the English and in our American law, that carriers by water, and whether the carriage relates to foreign or inland navigation, are liable as common carriers, in all the strictness and extent of the common law rule, unless the loss happens by means of one of the excepted perils. Perils of the sea denote natural accidents peculiar to that element, which do not happen by the intervention of man, nor are to be prevented by human prudence. A casus fortuitus was defined in the civil law to be, quod damno fatali contingit, cuivis diligentissimo possit contingere. It is a loss happening in spite of all human effort and sagacity. The only exception to this definition is, the case of a vessel captured and plundered by pirates, and that has been adjudged to be a peril of the

a Abbott, part 3, ch. 9, sec. 25.

b The Constantia, 6 Rob. Adm. Rep. 321.

317.

c See vol. ii. Lec. 40.

1 Emerigon des Ass.

sea.a

A loss by lightning is within the exception of the act of God; but a loss by fire, proceeding from any other cause, is chargeable upon the ship owner. The moment the goods are transferred from the ship or the lighter to the warehouse, this extraordinary responsibility ends, and the warehouseman is not so responsible.

It is often a difficult point to determine, whether the disaster happened by a peril of the sea, or unavoidable accident, or by the fault, negligence, or want of skill of the master. If a rock or a sand bar be generally known, and the ship be not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master. But if the ship be forced upon such a rock or shallow by winds or tempests, or if the bar was occasioned by a recent and sudden collection of sand, in a place where ships could before sail with safety, the loss is to be attributed to a peril of the sea, which is the same as the vis major, or casus fortuitus of the civil law. What is an excusable peril, depends a good deal upon usage, and the sense and practice of merchants; and it is a question of fact, to be settled by the circumstances peculiar to the case. The English statute law has exempted ship owners in some of these hard cases; but, with the exception of a statute in Massachusetts, passed in 1818, limiting the responsibility of owners for the acts of the master and mariners, to the value of the ship and freight, I do not know of any such statute exemptions in this country. The owner is bound for the whole amount of the injury done by the master or crew, unless where ordinances or statutes have established a different rule. By the maritime law of many parts of Europe, the

a Pickering v. Barkley, Styles, 132. Barton v. Wolliford, Comb. 56. b Forward v. Pittard, 1 Term Rep. 27. Hyde v. Trent and Mersey Navigation Company, 5 Term Rep. 389.

c Garside v. Trent and Mersey Navigation Co. 4 Term Rep. 581. d Smith v. Shepherd, cited in Abbott, part 3, ch. 4, sec. 1.

e See vol. ii. Lec. 40, and supra, where the exemptions from respon

sibility under the English statutes are stated.

responsibility of owners of vessels for the acts of masters, is limited to the value of the vessel and freight, and by abandoning them to the creditor they may discharge themselves."

We have seen what are the general duties of the master. Those on the part of the charterer are, to use the ship in a lawful manner, and for the purpose for which it was let. Usually, the command of the ship is reserved to the owner, and to the master by him appointed, and the merchant has not the power to detain the ship beyond the stipulated time, or employ her in any other than the stipulated service, and if he does he must answer in damages. If the freighter puts on board prohibited, or contraband goods, by means whereof the ship is subjected to detention and forfeiture, he must answer to the ship owner for the consequences of the act. And if the merchant declines to lade the ship according to contract, or to furnish a return cargo, as he had engaged to do, he must render in damages due compensation for the loss; and the English law leaves such questions at large to a jury, without

a Consulat de la Mer. tom. 2, p. 41. Emerig. contrats a la Grosse, ch. 4, sec. 11, who refers to the principal foreign authorities on the point. Boulay Paty, Cours de Droit Com. tom. 1, 263–298. The latter discusses the subject with his usual comprehensive erudition. Ware, J., in Crane v. The Rebecca, U. S. District Court for Maine, 1831. Am. Jurist, No. 11. In this last case the learned judge considers the owner's responsibility to be under the same limitation by the maritime law of this country, and that this affords a conclusive reason why the ship herself should be liable to the creditor in specie. Another learned judge, of equal authority, is of a different opinion, and be considers the limitation of the owner's responsibility to the value of the vessel and freight to rest entirely upon special authority. Porter, J., in Malpica v. M'Kown, 1 Miller's Louis. Rep. 259. Martin, J., in Arayo v. Curvell, ibid. 539.

b Lewin v. East India Company, Peake's Rep. 241.

Smith v. Elder, 3 Johns. Rep. 105.

defining beforehand the rate of compensation, in imitation of some of the ordinances in the maritime codes.

(7.) Of the payment of freight.

Freight, in the common acceptation of the term, means the price for the actual transportation of goods by sea from one place to another; but, in its more extensive sense, it is applied to all rewards or compensation paid for the use of ships. The personal obligation to pay freight, rests either on the charter party, or on the bill of lading, by which the payment of freight is made a condition of delivery; and the general rule is, that the delivery of the goods at the place of destination, according to the charter party, is necessary, to entitle the owner of the vessel to freight. The conveyance and delivery of the cargo is a condition precedent, and must be fulfilled. A partial performance is not sufficient, nor can a partial payment, or ratable freight, be claimed, except in special cases, and those cases are exceptions to the general rule, and called for by principles of equity.

The amount of freight is usually fixed by agreement between the parties, and if there be no agreement, the amount is ascertained by the usage of the trade, and the reason of the case. If the hiring be of the whole ship, or for an entire part of her for the voyage, the merchant must pay the freight, though he does not fully lade the ship. But if he agrees to pay in proportion to the amount of the goods put on board, and does not agree to provide a full cargo, the owner can demand payment only for the cargo actually shipped. If the merchant agrees to furnish a return cargo, and he furnishes none, and lets the ship return in ballast, he must make compensation to the amount of the freight; and this is sometimes termed dead freight, in contradistinction to freight due for the actual carriage of goods."

a 1 Peters' Adm. Rep. 206.

¿ Roccus, note 72, 73, 74, 75. Edwin v. East India Company, 2

It is supposed to be the doctrine of the case of Bell v. Puller, that the master would be entitled to freight for bringing back the outward cargo, if it could not be disposed of, though the charter party was silent as to a return cargo. It would stand upon the equity of the claim to dead freight.' The French law, in such a case, also allows freight for bringing back the cargo, because it could not be sold, or was not permitted to be landed."

If there be no express agreement in the case, the master is not bound to part with the goods until the freight be paid, but if he refuses to deliver the goods for other cause than the non-payment of freight, he cannot avail himself of the want of a tender. When the regulations of the revenue require the goods to be landed and deposited in a public warehouse, the master may enter them in his own name, and preserve the lien. The shipper of goods on freight has a lien on the vessel for the loss of the goods, by reason of the non-performance of the contract entered into by the master in the bill of lading. The ship is bound to the merchandise and the merchandise to the ship, according to the language of Cleirac. The English courts of common law will not allow such a lien to be enforced by the admiralty in rem, but the justice and necessity of such a jurisdiction is admitted and not invoked in vain in this country, and the lien may be enforced by process in rem against the vessel in the district courts. The ship owner's lien for freight is gone when the charterer is constituted owner, and takes exclusive possession for the voyage,

Vern. Rep. 210. Atkinson v. Richie, 10 East's Rep. 530. Peters, J., in Giles v. The Brig Cynthia, 1 Peters' Adm. Rep. 207.

a 2 Taunt. Rep. 286.

b Lawes on Charter Parties, 152.

c Boulay Paty, tom. ii. 391.

d Us et Coutumes de la Mer. p. 72. Boulay Paty, vol. 2, 297. Crane v. The Rebecca, District Court of Maine, 1831. Am. Jurist, No. 11.