So where by a charter-party the captain was to deliver his cargo "conformably to the signed bills of lading against payment of freight, the freight to be paid on delivery of the cargo," and the charterers loaded on board the ship a cargo of wheat, the bill of lading making the wheat deliverable on "paying freight for the said goods as per charter-party;" it was held that the master was not entitled to insist on payment by the indorsee of the bill of lading, of freight of part of the goods delivered by him; that no contract arises on the part of an indorsee of a bill of lading under a charter-party to pay freight for the cargo, from presenting the bill of lading and claiming the goods, and that the freight was not due until the cargo was delivered (i).

5. Equivalent Recompense in the Nature of Freight, to which (Freight not having been earned) the Shipowner is in some Cases entitled.

In some cases freight is to be paid, or rather an equivalent recompense made to the owners, although the goods have not been delivered at the place of destination, and so the contract for conveyance not strictly performed. Thus, if part of the cargo be thrown

upon a common bill of lading alone-it seems to have been thought, that if the charterer or consignor was originally liable for the freight, either from an express contract to pay it, or from legal liability as the known owner of the goods to pay it, there would arise no auxiliary original contract between the consignee and the shipowner for the freight. If the master were to refuse to deliver the goods without an express promise of a consignee, in such a case, to pay the freight, not choosing to rely solely on the solvency or contract of the charterer or consignor, would there be any legal difficulty in enforcing it? If not, in what respect does such an express contract differ from that which, in the language of Chief Justice Best (in Dougal v. Kemble), arises in such case by implication from the receipt of the goods? The contract of the consignor and consignee are not inconsistent with each other; each is an original contract, and has a sufficient consideration to support it (Moorsom v. Kymer, 2 M. & S. 303). In Barker v. Haven (17 Johns. Rep. 234), it was held by the court, that where the goods are owned by the consignor, and shipped on his account and for his benefit, if the master, on a delivery, does not obtain the freight from the consignee, under the common clause in the bill of lading, he is entitled to recover it from the consignor; but that it will be otherwise if the goods were shipped on the account and for the benefit of the consignee. The court also seemed to think it was in all cases the master's duty to

endeavour to procure the freight from the consignee: if so, would it not be a departure from that duty to deliver the goods without an express or implied promise from the consignee to pay frcight?" And see ante, pp. 266, 297, and 18 & 19 Vict. c. 111,

s. 1.

(i) Moller v. Young, 5 E. & B. 955; 25 L. J. (N. S.) Q. B. 94. A ship having been chartered for a lump sum, 66 the captain to sign bills of lading at more or less freight without prejudice to this agreement, a merchant who had put goods on board for which the master signed a bill of lading not specifying any amount of freight, but making them deliverable to the defendants, they paying freight according to contract with the charterer," informed them by letter, enclosing the bill of lading, that he had given an order on them to the charterer to pay freight at a rate exceeding the amount to which, according to the proportion which the goods bore to the whole cargo, they would have been liable under the charterparty. The defendants having received the goods and refused to pay the freight to the charterer's agent under the shipper's order, unless an allowance was made to them for damage, it was held that there was no evidence from which a contract to pay freight to the shipowners could be inferred, and that they were not liable to an action for it at the suit of the master to whom the full freight under the charter-party had been paid. Zuilchenbart v Henderson, 9 Exch. 722; 23 L. J. Exch. (N. S.) 234.

overboard for the necessary preservation of the ship and the remainder of the goods, and the ship afterwards reach the place of destination (j), the value of this part is to be answered to the merchant by way of general average, and the value of the freight thereof allowed to the owner in the manner that will be explained hereafter. So if the master be compelled by necessity to sell a part of the cargo for victuals or repairs, the owners must pay to the merchant the price which the goods would have fetched at the place of destination, and, therefore, are allowed to charge the merchant with the money that would have been due, if they had been conveyed thither (k).

The French ordinance also directs the payment of freight in another instance, which I do not find provided for in any other ordinance, or mentioned by any author, except with reference to this particular article of the French ordinance, which is as follows: "If it happen that commerce be prohibited with the country to which a ship is in the course of sailing (en route), and the ship be obliged to return with its lading, there shall be due only the freight outward, although the ship be hired out and home" (1). This article is also repeated in the Code de Commerce. The commentators on this article agree that the freight outward must be paid, if the ship be freighted outward only (m); and Valin says, that nothing can be more just, for this is casus fortuitus proceeding from a vis major, against which neither owner nor merchant has warranted; it is quite enough that the merchant should pay freight for the outward voyage already commenced, so as to make division of the loss between him and the master of the ship (n).

6. Freight on Illegal Voyages.

Freight is the reward which the law entitles a person to recover for bringing goods lawfully upon a legal voyage. If the voyage be illegal by reason of the goods being contraband, or for any other cause, freight cannot be recovered. During the late wars, licenses were frequently granted by the British government for voyages and importations which would otherwise have been illegal. The duration of these licenses was usually limited. In general, if the voyage was begun before the expiration of the limited time, though not completed until afterwards, the voyage was considered as legal. But in a case

(j) Roccus, not. 89. French Ordin. liv. 3, tit. 3, Fret, art. 13.

(k) French Ordin. liv. 3, tit. 3, Fret, art. 14. Ordin. of Wisbuy, arts. 35, 69; ante, part 4, ch. 4, p. 324. Code de Com. art. 298.

(1) French Ordin. liv. 3, tit. 3, Fret, art. 15. Code de Com. art. 299.

(m) Valin, tom. 1, p. 657. Pothier, Charte-partie, num. 69.

(n) In conformity with this doctrine of

the French, it has been decided in the American courts, that where the ship arrived at the port of destination, but was prohibited by the government from landing her cargo, and making an entry, the freight of the voyage was earned in the same manner as if the cargo were delivered. Morgan v. North America Insurance Company, 4 Dalls. Rep. 455; Judge Story's note, Amer. edit. 288.

where, in consequence of an embargo in a French port, the voyage was not begun until some time after the expiration of the license, it was held that the freight could not be recovered, although by an order of council, the freighter was permitted to land the cargo, upon condition of exporting it again immediately, this permission not being considered to legalize the voyage by implication, nor to have the effect of a continuation of the license (o).

In another case, in an action brought by the master of a foreign ship for the freight of goods imported into this country, it appeared in evidence that on the ship's arrival with the cargo, the merchant entered her at the custom-house, and a delivery of the cargo in his name was commenced by him; but on the following day the ship and cargo were seized by the the revenue officers, on suspicion that the ship was not Prussian built, and therefore not capable, under the Navigation Act (p), of importing the produce of that country into England. The Treasury, on petition presented on behalf of the master and owners, and with the concurrence of the merchant, ordered the ship to be restored, on condition that the cargo should be landed and warehoused for a limited time for exportation only, and on payment of a sum as satisfaction to the seizing officers. This sum the master paid, and the merchant accepted and exported the cargo. It was clear that, supposing the voyage to be illegal, the freight could not be recovered, and the conduct of the master was held to be sufficient proof of the illegality, although the ship had not been condemned (q).

7. Whether Damaged Goods are exempt from Freight, or may be

abandoned for it.

As it may frequently happen that goods brought in specie to the place of destination may be so deteriorated during the course of the voyage as to be of no value to the merchant, it is important to consider whether the merchant is bound to pay the freight under such circumstances; or, to state the question more correctly, whether he is bound to receive the goods, or is at liberty to abandon them for the freight. We have already seen, in the case of an East India ship, that the Company (the merchants) were held liable to pay the freight of a quantity of pepper delivered to and received by them, although greatly damaged by a peril of the sea; and that the owners were not answerable for the expense incurred in endeavouring to remove the injury occasioned by the salt water (r). And in another case, that will be mentioned hereafter, the merchant was held liable to pay the freight of tobacco saved from shipwreck, and accepted by him, although part was so much damaged as to be of no value (s).

Upon this question, as to the right of the merchant to abandon his goods when brought to the place of destination, and by so doing to discharge himself from the freight, different doctrines and opinions

(0) Muller v. Gernon, 3 Taunt. 394. (p) 12 Car. 2, c 18, s. 8, Appendix.

(q) Blank v. Solly and another, 8 Taunt. 89, and 1 B. Mo. 531.

(r) Hotham and others v. East India Company, Doug. 272.

(8) Lutwidge and another v. Grey and others, post, sect. 8 of this chapter.

have prevailed, and there is no judicial decision in our books; although in some cases between the merchant and his insurer it has been admitted that the freight was payable, notwithstanding the goods were so much damaged that their value fell short of its amount (t). But it is necessary to distinguish the causes from which the deterioration may have proceeded. If it have proceeded from the fault of the master or mariners, the merchant is entitled to a compensation, and may recover it by an action at law against the owners or master; but if he has received the goods, he cannot insist upon the damage as a defence to an action brought against himself for the freight, even although he has offered to return them (u). And in general, the right and true delivery of goods, upon which freight is made payable by the terms of a charter party, or bill of lading, means only a delivery of the entire quantity of chests or bales; if the goods have been damaged by the fault of the master or crew in the voyage, the remedy for the merchant, who has received them, is an action for the damage (v). On the other hand, if the deterioration have proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of a ship, the merchant must bear the loss, as well as pay the freight; for the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event. And to this point there is a direct authority in the treatise called "The Guidon." The author, having mentioned several cases of abandonment, as between the merchant and the insurer, goes on thus: "In like manner, the merchant cannot abandon the goods hereinbefore mentioned-viz., fruit, salt, corn, victuals, &c.—to the master of the ship for his freight, if the deterioration has proceeded from natural decay, or from the great diminution of price that takes place at the end of particular seasons, as in figs, grapes, and herrings, after Easter; or by reason of an overabundant supply of the market, as in corn, wine, or salt, although in salt a different practice formerly prevailed, which is contrary to reason, if the option has not been reserved by an express clause in the charter-party" (w).

In the very next article, however, of the treatise, we find this doctrine: "If goods contained in casks, as wine, oil, olives, molasses,

(t) Boyfield v. Brown, 2 Stra. 1065; and Mason v. Skurry, Park, 160; Marsh. 143.

(u) Mills and others v. Bainbridge and others, Guildhall, Dec. 20th, 1804, before Lord Ellenborough, Ch. J. His lordship intimated, that if the merchants had refused to receive the cargo on the ground of damage so occasioned, the point would admit of some doubt. In such a case, the merchant would derive no benefit whatever from the conveyance, nor would the master have fulfilled his engagement according to the terms of the bill of lading: quære, therefore, whether the master could oblige the merchant to pay the freight; See Basten v. Butter, 7 East. 479.

(v) Davidson v. Gwynne, 12 East. 381. See also Shields v. Davis, 4 Campb. 119, and 6 Taunt. 65. Although the goods be so damaged as to be of less value than their freight, see Dakin v. Oxley, 15 C. B. (N. S.) 646, where this paragraph, which may be found in the first edition (A.D. 1802), is cited by the learned counsel for the plaintiff as from the text of another treatise. can a deduction from the freight payable on the goods received be claimed in respect of goods which, though mentioned in the bill of lading, have not been put on board. Meyer v. Dresser, 16 C. B. (N. S.) 646. (w) Guidon, ch. 7, arts. 7, 10.

Nor

and others of the like sort, have leaked to such an extent that the casks are empty, or nearly empty, the merchant may abandon them for the freight before they are landed: therefore masters should take care when they receive casks, to see that they be well hooped, and in good condition. It is true, that if, by tempest, the casks have been so pressed that they have thrown out their bottoms, have been beaten in, and burst, provided there have been no fault in the stowage, the loss shall be an average against the insurers: the master shall lose his freight" (x).

From the words of this article it appears very clearly, that, in the opinion of the author, the merchant might abandon articles of this description, although the leakage were not occasioned by perils of the sea.

In the work of Molloy (y), however, we find the following clauses: "If freight be taken for one hundred tons of wine, and twenty of them leak out, so that there is not above eight inches from the bung upwards, yet the freight becomes due. One reason is, because from that gauge the King becomes entitled to custom. But if they be under eight inches, by some it is conceived to be then in the election of the freighters to fling them up to the master for freight, and the merchant is discharged. But most conceive otherwise; for if it had all leaked out (if there was no fault in the master), there is no reason the ship should lose her freight, for the freight arises from the tonnage taken; and if the leakage was occasioned through the storm, the same perhaps may come into an average. Besides, in Bordeaux (2), the master stows not the goods, but the particular officers appointed for that purpose, quod nota; perhaps a special convention may alter the case.

The French ordinance declares: "That the merchant shall not oblige the master to take for his freight goods diminished in price, spoilt, or deteriorated by their own vice or by the perils of the sea" (a). And the very next article is as follows: "If goods put into casks, as wine, oil, honey, or other liquors, have leaked out to such an extent that the casks are empty, or nearly empty, the merchant may abandon them for the freight." Valin, in his commentary on this last article, observes, that it is taken from the article of "The Guidon," which I have just before quoted. He observes also that by the Consolato del Mare (ch. 202) the contrary is decided; yet that by another article of the same code (ch. 234) freight is not due for pottery unless it be found entire at the end of the voyage (b); and he considers this

(x) Guidon, ch. 7, art. 11.

(y) Book 2, ch. 2, sect. 14. The author cites Boyce v. Cole, Hilary Term, 26 & 27 Car. 2, in K. B.; but I do not find that case reported elsewhere.

(z) See Cleirac on the 11th art. of the laws of Oleron.

(a) French Ordin. liv. 3, tit. 3, Fret, arts. 25, 26. Those articles are repeated in the Code de Com. art. 310.

(b) The sense of this chapter appears not to be correctly stated by the learned commentator. The rule therein laid down is, that if the merchant stows the pottery, he must pay the freight of what is broken; but if the master stows it, he is, at all events, to lose the freight of what is broken; and if there has been any fault in the stowage or carriage, he must also make good the damage.