the increased freight, arising from the hire of the new ship; and this power is expressly given him by the old and the new ordinances of France, and it is established by decisions in New-York. The master may refuse to hire another vessel, and insist on repairing his own; and whether the freighter be bound to wait for the time to repair, or becomes entitled to his goods without any charge of freight, will depend *213 upon circumstances. *What would be a reasonable time for the merchant to wait for repairs, cannot be defined, and must be governed by the facts applicable to the place and the time, and to the nature and condition of the cargo. A cargo of a perishable nature may be so deteriorated as not to endure the delay for repairs, or may be too unfit and worthless to be carried on. The master is not bound to go to a distance to procure another vessel, and encounter serious impediments in the way of putting the cargo on board another vessel. His duty is only imperative when another vessel can be had in the same or in a contiguous port, or at one within at reasonable distance, and there be no great difficulties in the way of a safe reshipment of the cargo.c In the course of the voyage, the master is bound to take all possible care of the cargo, and he is responsible for every injury which might have been prevented by human foresight and prudence, and competent naval skill. He is chargeable with the most exact diligence. If the ship be captured ■ Mumford v. The Commercial Insurance Company, 5 Johns. Rep. 262. Searle v. Scoville, 4 Johns. Ch. Rep. 218. Lord Denman, in Shipton v. Thornton, 9 Adolph. & Ellis, 314, said, that no case of that sort had occurred in England, and he seemed to suppose, that in a case where the transhipment could not be made but at the charge of an increased freight, and when it would be greatly for the benefit of the freighter that the goods should be sent forward, the master, in his character of agent of the owner, ought to do it. If the cargo be charged with the increased freight, it becomes an average loss to be borne by the insurer. In Shultz v. Ohio Ins. Co. 1 B. Monroe Ken, R. 339, it was held, that the insurer was not chargeable with such extra freight. Id. 339. 343. He only guaranties the safe arrival of the goods. b Herbert v. Hallett, 3 Johns. Cas. 93. Clark v. Mass. F. & M. Ins. Co. 2 Pick. 104. Hunt v. Royal Exchange Assurance Company, 5 Maule & Selw. 47. Saltus v. Ocean Ins. Co. 12 Johns. Rep. 107. Cowen's Rep. 270. See infra, 321. a Roccus, n. 40. 55. 259. 1 Emerigon, 373. Tredwell v. Union Ins. Co. 6 Dale v. Hall, 1 Wils. Rep. 281. Vinnius, notæ ad Peckium, during the voyage, the master is bound to render his exertions to rescue the property from condemnation, by interposing his neutral claims, and exhibiting all the documents in his power for the protection of the cargo. We have already seen in what cases and to what extent the master may hypothecate or sell the cargo at a port of necessity; .and if the ship, relieved at the expense of the goods pledged or sold, should afterwards perish with the residue of the cargo on board, before arrival at the port of destination, the better opinion is, that the owner is not entitled to payment for the goods sold. The merchant is not placed in a worse situation by the sale of the goods *than if they had remained on board *214 the ship. But the foreign authorities are very much at variance on the point, and it remains yet to be settled in the English and American law.b (4.) Of the delivery of the goods at the port of destination. On the arrival of the ship at the place of destination, the cargo is to be delivered to the consignee, or to the order of P. Rep. 127. The master, on his arrival in port, in case of a disaster, is bound to give, in writing, a verified statement of the circumstances attending the voyage, and the loss. The French law requires the master, within 24 hours after his arrival in port, to make his report, (rapport, and which, in the language of the English and American mercantile law, is termed a protest,) containing the place and time of his departure, the course he has kept, the dangers he has run, the accidents and all the remarkable circumstances of the voyage. The report is to be made to the Tribunal of Commerce, and if in a foreign port, before the French consul, or in the absence of either, before a magistrate, and the report is to be verified by the master, and under circumstances, together with the crew. Code de Commerce, art. 242-248. By the English practice, the master's protest is made before a notary, and, since the English statute of 6 Wm. IV. verification is made by solemn declaration instead of an oath. Abbott on Shipping, by Shee & Perkins, p. 465, edit. Boston, 1846. Though the protest is not evidence for the master or his owners, yet it is evidence against them, and is received as evidence in foreign courts, and it is of great utility in matters of adjustment of losses, and much consideration is given to it by merchants. Abbott, id. 466. Cheviott v. Brooks, 1 Johns. Rep. 364. Emerigon has collected all the authorities, pro and con, on this very debatable question. See Hall's Emerigon on Maritime Loans, 92. Non nos rum tantas componere lites. In favour of the right of the merchant to be paid, see the Laws of Wisbuy, art. 68. Valin's Com. tit. Du Fret. art. 14. vol. i. 665. Cushing's Pothier on Maritime Contracts, 19. Charte-Partie, n. 34, and Cleirac, Jugemens d'Oleron, art. 22. n. 2. In opposition to such a claim, Emerigon reasons from the provisions and omissions in the Consolato del Mare and the Ordinances of Oleron, the shipper, on production of the bill of lading and payment of the freight. The English practice is, to send the goods to the wharf, with directions to the wharfinger not to part with them until the freight and other charges are paid, provided the master be doubtful of the payment; for by parting with the possession, the master loses his lien upon them for the freight. The cargo is bound to the ship as well as the ship to the cargo; but the master cannot detain the goods on board the ship until the freight be paid, for the merchant ought to have an opportunity to examine the condition of them previous to payment. The foreign ordinances of Wisbuy, and of Louis XIV., allow the master to detain the goods, while in the lighter or barge, on the passage to the quay, for *215 they are still *in his possession. The manner of de livery, and the period at which the responsibility of the owners and master ceases, will much depend upon usage.d The general rule is, that delivery at the wharf (when there are no special directions to the contrary) discharges the master. But the very reasonable qualification of the rule is, that there must be a delivery at the wharf to some person authorized to receive the goods, or due previous notice must have been given to the consignee of the time and place of delivery; and the master cannot discharge himself, by leaving them naked and exposed at the wharf. So, if the master gives a receipt for goods for shipping left on the dock, they are as much at the risk of the ship as if actually put on board.f His and Antwerp, that the merchant is not entitled to pay. Pothier also admits that experienced persons, whom he consulted on the subject, were against his opinion. Abbott, in his Treatise on Shipping, 5th Am. edit. Boston, 1846, p. 456, is also against the claim of the shipper to be paid for the goods sold. (1) • Abbott on Shipping, part 3. c. 3. sec. 11. Soldergreen v. Flight, cited in 6 East's Rep. 622. b Abbott on Shipping, sup. • Laws of Wisbuy, art. 57. Ord. de la Mar. liv. 3. tit. Du Fret. art. 23. a Wardell v. Mourillyan, 2 Esp. N. P. Rep. 693. Heran v. Ship Grafton, N. Y. D. Court, U. S. infra. • Hyde v. Trent and Mersey Navigation Company, 5 Term Rep. 389. Chickering v. Fowler, 4 Pick. 371. Cope v. Cordova, 1 Rawle, 90. Fox v. Blossom, NewYork Common Pleas, October, 1828. Fisher v. Brig Norval, 8 Martin's Loui. Rep. N. S. 120. (1) See ante, p. 165, and Pope v. Nickerson, 8 Story's R 493. responsibility will continue until there is actual delivery, or some act which is equivalent, or a substitute for it, unless the owner of the goods, or his agent, had previously assumed the charge of the goods;a or at least until the consignee has had notice of the place and time of delivery, and the goods have been duly separated and designated for his use.b It is often difficult for the master of a vessel to know to whom he can safely deliver the goods, in case of conflicting claims between consignor and consignee, or consignor and the assignee of the consignee. (1) Prudence would dictate that he deliver the goods to the party upon whose indemnity he can most safely rely. But he ought not to be put to the peril and necessity of indemnity; and it is desirable that he should know to whom of right he can deliver the goods. If the consignee has failed, he ought to deliver to the claimant, on behalf of the consignee; and if the consignee *216 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.c 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.d a Strong v. Natally, 4 Bos. & Pull. 16. Ostrander v. Brown, 15 Johnson, 39. b Chickering v. Fowler, Cope v. Cordova, and Fox v. Blossom, supra. 1 Valin's Com. 636. See vol. ii. 604, 605. S. P. In Heran, Lees & Co. v. The Ship Grafton, (District Court of U. S., N. Y., November 1844,) Judge Betts held, that according to the well settled course and usage of trade, delivery of goods on freight at the dock, with notice to the consignee of the time and place, discharges the ship-owner or common carrier from liability, and that the rule applied equally to the coasting and the foreign trade. But uniform usage will control and regulate the mode of delivery; and an exception to the general rule would also exist, if a reasonable discretion was not exercised by the carrier, and perishable goods be put on the dock in hazardous or improper weather, against the consent of the consignee. Ostrander v. Brown, 15 Johnson's R. 39. Cope v. Cordova, 1 Rawle, 203. S. P. • Abbott on Shipping, part 3. c. 9. sec. 25. d The Constantia, 6 Rob. Adm. Rep. 321. 1 Emerigon des Ass. 317. The master may unite in himself the character of consignee as well as master, and in that (1) If the consignee of the bill of lading endorse the same before an actual delivery of the goods, he will not be liable for freight. Merian v. Funck, 4 Denio's R. 110. (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. (1) 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. (2) 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, a the case of a vessel captured and plundered by pirates, *217 and that has been adjudged to be a peril of the *sea.b 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 case he stands in the relation of agent to two distinct principals. In the safe custody and delivery of the cargo he is the agent of the ship-owner; and in the sale of it after the cargo has arrived at the place of destination, he is the agent of the shipper or consignor. Thompson, J., and Kent, Ch. J., in U. Ins. Co. v. Scott, 1 Johnson's R. 111. 115. Williams v. Nichols, 13 Wendell's R. 58. The Waldo, U. S. District Court of Maine, 1841. ■ See vol: ii. [598–600.] b Pickering v. Barkley, Styles, 182. Barton v. Wolliford, Comb. 56. • Forward v. Pittard, 1 Term Rep. 27. Hyde v. Trent and Mersey Navigation Company, 5 ibid. 389. Gilmore v. Carman, 1 Smedes & Marshall Miss. R. 279. In Hunt v. Morris, 6 Martin's Louis. Rep. 676, it was held, that the owners of a steamboat destroyed by fire were not liable to the freighters, if proper diligence was used. But that decision was according to the civil law, which is not so strict (1) It is no defence for the carrier, that the goods are taken by a foreign power on suspicion of being contraband, and confiscated, if the owner be not in default. Spence v. Chadwick, 10 Ad. & El. N. 8. 517. But the owners of vessels engaged in the whale fishery are not held to the liability of common carriers of the products which they own jointly with the crew. They are like other trustees, liable only for ordinary care. Joy v. Allen, 2 Wood. & M. R. 303. (2) Embezzlement is not a peril of the sea, by the maritime law. King v. Shepherd, 3 Story's R. 849. |