CHAPTER III.

OF THE PAYMENT OF FREIGHT.

Books of General Reference.

Roccus de navibus et naulo. Ultrajecti, 1710.

Contains in short paragraphs, all that is to be found in the old Sea laws, and principles of the Roman law, important on this subject.

ABBOTT treatise on Merchant Ships and Seamen. London, 1804.

Contains the latest English decisions upon this subject.

Le nouveau VALIN ou code commercial maritime, par LAPORTE. Paris, 1809.

Contains all that Valin has written on this subject, of the old French principles still retained in the Code de Commerce.

THE regulation of freight is various. According to the size of the vessel, admitted, or specified in the ship's papers; often by the burthen computed from the unlading of the vessel, but oftener by the bulk laden, in as much as the master is not prejudiced by the difference of admeasurement, occasioned by the shrinking, waste, or melting of goods put on board. In East India, and other long voyages, the freight is not so much regulated by the specified weight of the commodity delivered, as by its value. In France, vessels are freighted au quintal, or The first is computed at one hundred pounds;

au tonneau.

and to freight a ship au quintal means, to ship goods of the weight of a certain number of quintals, to any particular place. The French sea-ton is computed at twenty-eight cubick feet. Though the amount of the freight is generally stipulated, yet goods are often shipped on board without agreement, and often without the knowledge of the master; for which, in the first case, the usual freight (or if it is variable, a middle freight) is due, and in the latter, the highest freight that goes. (i)

If breakable goods are laden on board, and the merchant has them stowed himself, the master obtains his freight, and incurs no responsibility. And if the master has them stowed, he likewise incurs no responsibility, if the damage is not by his negligence; but he loses his freight. (k)

If goods are freighted by the piece, and the merchant marks the weight, which the master afterwards finds to be more, the merchant must pay the expense of weighing, and an additional freight. But if the weight has not been mentioned, but only the packages, the master can make no objection to the weight; so likewise, in case he has seen the goods before he receives them. But if the merchant, in the mean time, has added weight, for such secret addition of weight he must pay double freight. (/)

The freighter, in the regulation of his freight, is to take into consideration the costs and wages of the crew, when the ship may be prevented by the ice, at the beginning of a winter, from entering the port of destination, as a wintering in such case is not regularly included in gross average. (m)

Regularly, the freight is not chargeable, unless the goods are delivered at the port of destination, because the merchant receives no advantage if the goods are delivered at a port for which they were not intended. The cases in which the vessel, not

(i) Pothier, § 8 and 9.

(k) Consulate, Cap. 284. (1) Cap. 218.

(m) Langenbeck, p. 152.

withstanding, earns her freight, are exceptions to the general

rule. On the other hand, an interruption of the regular course of the voyage, does not release the freight, if the ship afterward arrives with the cargo at the port of delivery.

The British ship Racehorse, White master, was freighted from Liverpool in ballast to St. Martins and Lisbon, to bring a cargo of fruit to Ireland. Upon her return voyage, she was taken by a French privateer off Falmouth, and afterwards recaptured, and brought to Falmouth. The owner of the ship being dead, his administrator claimed the vessel upon salvage, no immediate claim being given for the cargo. The cargo, afterwards reclaimed, was discharged, and the ship demanded the whole freight. The 13th of June, 1800, Sir Wm. Scott said, "The ship was restored by consent on the 2d of July, whilst no claim was given for the cargo until the 17th of July, and restitution did not pass until the 16th of November; the case of the cargo was litigated. And is the court to say that the ship was to stay and wait the result of the proceedings when she herself had been restored, whilst the cargo was contested, and might be condemned; and whilst it was by no means clear, that any cargo would remain to be carried on? This would be an unreasonable expectation. I do not say, that a party is to act in an hasty manner, and to run away immediately on the restitution of his ship. Something is to be acceded in the way of accommodation; a reasonable time is to be allowed; and if it is not allowed, a proportion of the freight may be deducted. But I cannot say that a ship shall wait all this time, for the mere chance of taking on the cargo, if eventually, it should be restored. No fault was imputable to the ship, that might have carried on the cargo, had the cargo been ready to proceed. Though he acted as discharged from his contract, yet he is substantially entitled to the benefit of it.

The whole freight, with deduction of the salvage due thereon, was granted. (n)

In the case of the American ship Martha, Martin master, the ship had been released, and the cargo also; but it became necessary to unliver the whole cargo, in order to get at a parcel of goods for which no claim was given, and the master refused to take them on board again, and carry them at the original freight. Sir Wm. Scott, while he remarked, the carrier master, to use the expression, was a favourite with the court, decreed the whole freight (0) due, upon the principle of a prejudicate, in the case of the ship Hamilton, Rodman master, of the 20th November, 1793, and added, "As long as that case stands uncorrected by the superiour court, (if it requires any correction) I shall think myself bound to follow it; though I am sorry to say, it may in particular instances, fall with hardship on the owners of cargoes."

Though the delivery of the cargo at the port of destination, is, generally, necessary in order to entitle the master to freight, yet with regard to men or animals, who may die on the passage, an exception is made. Freight is earned for the dead as for the living, unless the payment of it was conditional in the charter-party, for the conveyance to a certain place. (1) If a (n) Robinson, 3-106. (0) Robinson, 3-107.

(1) In transporting cattle, &c. if there be an agreement to pay a sum certain for the carriage, and some die, freight is nevertheless due for the whole; but not if all die, for the contract being entire, cannot be apportioned. If the terms of agreement be at so much per head, freight is only due for such as are delivered alive, at the port of discharge; for though the act of God will excuse a default, and relieve from a penalty for non-performance, yet it will not create a title to claim a compensation for that which is not done. Lex. Mer. Am. 219. Thus, in the case of live stock, shipped by the head, the

upon a charter party, by which it was agreed: that the goods should be delivered at London, agreeably to the bills of lading, to a third person, upon the payment of the freight. When, however, they were delivered to him, he refused to pay the freight, because the consignor was still indebted to him. Lord Kenyon held, that the freight could not be recovered of the consignor, because the master, according to the terms of the contract, was not to have delivered the goods, but upon the payment of the freight by the consignee. (But this opinion of his Lordship was afterwards overruled.) If a consignee receive goods in pursuance of the usual bill of lading, by which it is expressed, that he is to pay the freight, by such receipt he makes himself debtor for the freight. (Roberts vs. Holt.) (v)

If a consignee, known as such to the master, sell the goods before they are landed, he, and not the buyer, is liable for the freight, although the goods are entered at the custom-house in the buyer's name. (By Lord Kenyon, in the case of Arteza vs. Smallpiece.) (w) If such entry is made by one who is only agent for the consignor, and known to the master as such, he is not liable to be sued for the freight. (Ward vs. Felton.) (x) Exceptions to the rule, that no freight is to be paid, but upon delivery of the goods at the place of destination are the cases, where part of the cargo is thrown overboard for the preservation of the ship, or the rest of her cargo, or sold in cases of necessity, &c. If a neutral ship in time of war have enemy's goods on board, and is taken, and carried in, and the goods condemned, the captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods, jure belli. And though the voyage is not completed, and consequently the whole freight not earned, yet, as the captor has prevented its completion, his seizure shall operate to the same effect, as an actual delivery of the goods to the consignee, and

(v) Abbott, 317.

(20) Abbott, 317.

(x) Abbott, 318.