Shipowner against Charterer, &c.—Freight and Damages. 423

as follows: "4s. 6d. sterling per 320 lbs. weight delivered for oats, and if other cargo be shipped in full and fair proportion thereto according to London Baltic printed rates," it was held that the charterer fulfilled his contract by loading a full cargo of flax, tow, and codilla, three of the articles mentioned in the Baltic printed rates, and was not liable for additional freight, as on a full cargo of oats, although this obliged the shipowner to carry 120 tons ballast to 168 tons of cargo. Southampton Steam Colliery Co. v. Clarke, L. R., 4 Ex. 73; L. R., 6 Ex. 53, Ex. Ch. ; following on this point, Moorsom v. Page, 4 Camp. 103.

Freight is to be calculated and paid on that amount only, which is put on board, carried throughout the whole voyage, and delivered at the end to the merchant. Gibson v. Sturge, 10 Exch. 639; 24 L. J., Ex. 121, per Alderson, B., approved in Buckle v. Knoop, L. R., 2 Ex. 333, 334, Ex. Ch. In an action for freight, against the indorsee of a bill of lading, the shipowner is not, by 18 & 19 Vict. c. 111, s. 3, post, p. 428, estopped by an innocent misstatement of quantity in the bill, if, all that was shipped is actually delivered. Blanchet v. Powell's Llantivit Colliery Co., L. R., 9 Ex. 74. As to the freight payable where the weight or bulk of the goods when delivered differs from that when shipped, see S. CC.; Coulthurst v. Sweet, L. R., 1 C. P. 649; Tully v. Terry, L. R., 8 C. P. 679. Lump freight is a sum payable for the use of the ship, and is payable though part of the cargo is lost by the excepted perils. Robinson v. Knights, L. R., 8 C. P. 465; Merchant Shipping Co. v. Armitage, L. R., 9 Q. B. 99, Ex. Ch. See also Blanchet v. Powell's Llantivit Colliery Co., supra.

The charterer has no right to fill the cabins as well as the carrying part of the ship, and if permitted by the master to do so, he is liable to pay the current freight for it, and cannot insist on paying only the charter price. Mitcheson v. Nicol, 7 Exch. 929; 21 L. J., Ex. 323.

If goods of the consignor, and carried at his risk, be delivered to the consignee, and he do not pay the freight, the consignor is liable, even though the bill of lading express that the goods are to be delivered to the consignees "paying freight for the same," this clause being inserted merely for the benefit of the shipowner. Domett v. Beckford, 5 B. & Ad. 521. This right to claim freight from the shipper is expressly reserved by the Bills of Lading Act (18 & 19 Vict. c. 111), s. 2, ante, p. 416. The circumstances may, however, rebut the inference of freight being payable, arising merely from the goods having been carried in the plaintiff's ship under bills of lading signed by the master. Smidt v. Tiden, L. R., 9 Q. B. 446. Though freight may not be payable in respect of goods shipped by A. in his own ship, yet if by the bills of lading he make the goods deliverable to the order of B., who has advanced him money on the security of the goods, freight becomes payable to C., to whom A. assigned the freight, to be earned by the ship. Weguelin v. Cellier, L. R., 6 H. L. 286. As to right of mortgagee, abandonee, or other transferee of the ship to freight, see Keith v. Burrows, 2 Ap. Ca. 636, D. P.

The measure of damages for not loading any cargo is the amount of freight which would have been carried, deducting expenses and any profit earned during the time covered by the charter; but semb., the shipowner is not bound to take on board another cargo in order to reduce the damage. Smith v. M'Guire, 3 H. & N. 554; 27 L. J., Ex. 465; Morris v. Levison, 1 C. P. D. 155, 158. The shipowner cannot sue the merchant for not loading, when the loading was prevented by want of notice to him, that the ship was ready to receive the cargo. Stanton v. Austin, L. R., 7 C. P. 651.

Freight pro rata.] If the shipper accept part of the goods, though carried under an entire contract for freight, Mitchell v. Darthez, 2 N. C. 555; or,

accept the goods before the completion of the voyage, Vlierboom v. Chapman, 13 M. & W. 238; The Soblomsten, L. R., 1 Adm. 293; a new contract to pay pro ratú may be inferred. But, as a general rule, unless the goods be carried to the destined port, no freight is due. S. C.; Metcalfe v. Britannia Iron Works Co., 1 Q. B. D. 613; 2 Q. B. D. 423, C. A. Thus, if the master justifiably sell part at an intermediate port, he is not entitled to recover freight, pro rata, for the goods sold. Hopper v. Burness, 1 C. P. D. 137; Hill v. Wilson, 4 C. P. D. 329. A fortiori, if the master sell the goods unjustifiably. Acatos v. Burns, 3 Ex. D. 282, C. A. If the master is disabled from carrying the goods further, he may tranship them, and, upon safe delivery at their destination, he is entitled to the whole freight as on the old contract, without reference to the contract with the new ship. Shipton v. Thornton, 9 Ad. & E. 314. The master has a reasonable time for reshipment, and if he be prevented by default of the owner of the cargo from forwarding the cargo from an intermediate port to its destination, the whole freight is payable. Cleary v. M'Andrew, 2 Moo. P. C., N. S. 216; The Soblomsten, supra. The master, while afloat, or in a foreign port where there is no agent of the shipper, becomes ex necessitate, his agent as to the goods, as well of the shipowner, as to the ship and freight; and he must do what in the exercise of a sound discretion is best for both parties; and in such a case, and not otherwise, the shipper is bound by his acts, so as to be liable for freight on a contract made by the master. Matthews v. Gibbs, 3 E. & E. 282; 30 L. J., Q. B. 55.

Lien for freight, &c.] In addition to his remedy by action, the shipowner has a lien on the goods for freight; and where the charterer puts goods of his own on board under a bill of lading, there is a lien on the goods, for the chartered freight, and this lien holds good against any one taking_the bill of lading with knowledge of the terms of the charter-party. Kern v. Deslandes, 10 C. B., N. S. 205; 30 L. J., C. P. 297. The terms of the bill of lading may, however, be such as to waive the lien for the freight, in whole or part, as when it is payable at the port of lading, or by the shipper at a given time after sailing, ship lost or not lost. Kirchner v. Venus, 12 Moo. P. C. 361; following How v. Kirchner, 11 Moo. P. C. 21, and in effect overruling Gilkison v. Middleton, 2 C. B., N. S. 134; 26 L. J., C. P. 209, and Neish v. Graham, 8 E. & B. 505; 27 L. J., Q. B. 15; accord. Tamraco v. Simpson, L. R., 1 C. P. 363, Ex. Ch. As to lien for demurrage, vide post, P. 428.

Where goods, upon which the master of a ship has a lien, are deposited in the king's warehouse in pursuance of the requisition of an act of parliament, the lien is not thereby waived. Per Ld. Kenyon, C. J., Ward v. Felton, 1 East, 512; Wilson v. Kymer, 1 M. & S. 157. So, where the consignee refuses to take the goods, the master may, it seems, place them in a warehouse under the exclusive control of himself, or the shipowner, without losing his lien. Mors-le-Blanch v. Wilson, L. R., 8 C. P. 227. Under the provisions of many local and personal acts, general wharves, called "sufferance wharfs," were appointed, where goods might be landed and stowed, the shipowner retaining the right of lien for freight; and now, generally, by the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), ss. 67, et seq., certain powers are given to shipowners to land and enter goods from foreign ports, in default of the owner, and to retain the lien for freight, by giving notice to the owner of the wharf, &c. See hereon Berresford v. Montgomerie, 17 C. B., N. S. 379; 34 L. J., C. P. 41; Wilson v. London, Italian, and Adriatic S. Navigation Co., L. R., 1 C. P. 61; Meyerstein v. Barber, L. R., 4 H. L. 328, 330; The Energie, L. R., 6 P. C. 306; Glyn v. E. & W. India Dock Co., 7 Ap. Ca. 591, D. P.

Shipowner against Charterer, &c.-Merchant against Shipowner, &c. 425

A shipowner has no lien on goods shipped, for unliquidated damages, by reason of the charterer failing to load a full cargo. Phillips v. Rodie, 15 East, 547; Gray v. Carr, L. R., 6 Q. B. 522, Ex. Ch. Where, however, the rate of freight and ship's tonnage has been agreed to, the claim is then a liquidated one, for which the shipowner has a lien. McLean v. Fleming, L. R.,2 H. L. Sc. 128; better, L. R., 6 Q. B. 558, n. The shipowner's claim in these cases is known as "dead freight," a term, however, properly applicable only where the claim is liquidated.

Implied contracts on part of charterer or shipper.] Where by a charterparty a ship is to proceed to "a safe port," to be named by charterers, they are not entitled to name a port, safe by nature, but closed by the local government, so that a vessel entering it, without a permit, would be liable to confiscation; and, having named such a port, they are liable for a breach of the contract implied on their part to name a safe port, within a reasonable time. Ogden v. Graham, 1 B. & S. 773; 31 L. J., Q. B. 26. See also The Teutonia, L. R., 4 P. C. 171, ante, p. 422. The damages recoverable for refusing to name a wharf, are the freight that would have become payable on the delivery of the cargo. Stewart v. Rogerson, L. R., 6 C. P. 424.

There is an implied contract on the part of shippers, not to put on board, without notice, packages of a dangerous or corrosive matter, the nature of which, the shipowner or his agents could not be reasonably expected to know. Brass v. Maitland, 6 E. & B. 470; 26 L. J., Q. B. 49. But where the shipowner has an opportunity of examining the goods, there is no warranty by their owner that they are fit to be carried. Acatos v. Burns, 3 Ex. D. 282, C. A.

Defence.] A charterer whose cargo has been damaged, by the fault of the master, so as to be worth less than the freight, cannot discharge himself from liability to freight by abandoning the cargo to the shipowner. Dakin v. Oxley, 15 C. B., N. S. 646; 33 L. J., C. P. 115. Nor, can the assignee of a bill of lading deduct from the freight, the value of goods which, though mentioned in the bill of lading signed by the plaintiff, were not put on board. Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289; see post, pp. 428, 429. But, the cross claim may now be set up by way of set-off or counterclaim under Rules, 1883, O. xix., r. 3. And, where the bill of lading provided that the freight should be paid within three days after arrival of ship, and before delivery of any portion of the goods, and after the goods had arrived, and before the expiration of the three days, the goods were accidentally destroyed, so that they did not exist any longer in specie, it was held that no freight was recoverable. Duthie v. Hilton, L. R., 4 C. P. 138. Where the shipowner finally abandons the ship during the voyage, the owner of cargo may treat the contract of affreightment as at an end, and resume possession of his cargo without payment of freight. The Cito, 7 P. D. 5, C. A.

s. 315.

Merchant against Shipowner or Master.

The master, as well as the owner of a general ship, is liable as a common carrier of goods. Morse v. Slue, 2 Lev. 69; 1 Vent. 238; Liver Alkali Co. v. Johnson, L. R., 7 Ex. 267; L. R., 9 Ex. 338, Ex. Ch.; Story on Agency, His liability is limited by the same common law exceptions as in the case of land carriers, and by such further exceptions as may be expressed in the charter-party or bill of lading, or sanctioned by act of parliament. See further, Action against carriers, post, p. 561, et seq. As to the liability of a shipowner, for damage caused to cargo, by collision with another of his ships, see Chartered Mercantile Bank of India v. Netherlands Steam Navigation Co., 10 Q. B. D. 521, C. A.

Where a stevedore, or special agent, is appointed by the charterer to load and stow a ship, which he puts up as a general ship, the master is exempt from liability for bad stowage, unless done under his particular orders; Blaikie v. Stembridge, 6 C. B., N. S. 894; 28 L. J., C. P. 329; 6 C. B., N. S. 911; 29 L. J., C. P. 212, Ex. Ch.; or, unless the charter-party provides that the charterers are not in any case to be responsible for improper stowage. Sack v. Ford, 13 C. B., N. S. 90; 32 L. J., C. P. 12. But, an unexercised option, given to the charterer, of appointing a stevedore, does not dispense with the master's ordinary duty to load the ship properly. AngloAfrican Co. v. Lamzed, L. R., 1 C. P. 226. See further as to liability of shipowner to charterer for negligence of master and crew, Omoa, &c. Coal & Iron Co. v. Huntley, 2 C. P. D. 464. Where the plaintiff's goods have been injured by being stowed in contact with a deleterious substance, he may sue the person who so stowed them, although there is no contract between them. Hayn v. Culliford, 4 C. P. D. 182, C. A.

Exception of Perils.] In considering whether a loss falls within the exception in a bill of lading or charter-party, regard is to be had to the causa causans, rather than to the causa proxima. Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 531, 543, per Brett and Lindley, L. JJ. Thus, where goods are shipped under a bill of lading which contains an exception from liability for "accidents or damage of the seas," a loss through a collision, occasioned by the negligence of the crew, is not within the exception. Grill v. General Iron Screw Colliery Co., L. R., 3 C. P. 476, Ex. Ch. So, an exception of "perils of the sea does not protect against damage, where the collision was caused by the negligence of either of the colliding vessels. Woodley v. Michell, 11 Q. B. D. 47, C. A. So, an exception of dangers of the seas and fire does not include barratry. The Chasca, L. R., 4 Adm. 446. So, an exception for "breakage, leakage, or damage," does not protect the shipowners from liability for damage accruing through the negligence of their servants. Czech v. General Steam Navigation Co., L. R., 3 Č. P. 14; Leuw v. Dudgeon, Id. 17, n.; see also Notara v. Henderson, L. R., 7 Q. B. 225, 236, Ex. Ch.; and Martin v. Gt. Indian Peninsular Ry. Co., L. R., 3 Ex. 9, cited post, p. 563. But, such exceptions shift the onus of proof, and oblige the plaintiff to prove, affirmatively, the negligence of the defendant's servants. The Helene, B. & L. 429; 35 L. J., P. C. 63. So, in an action for loss of cargo, alleged to have been jettisoned and sold in consequence of the ship's stranding, the plaintiff must prove that the stranding was occasioned by the negligent navigation of the ship. The Norway, B. & L. 404. See, however, Taylor v. Liverpool & Gt. W. Steam Co., L. R., 9 Q. B. 546. An exception against leakage does not include injury done to other goods by such leakage. Thrift v. Youle, 2 C. P. D. 432. An exception of damage caused by navigation does not include damage caused by improper stowage. Hayn v. Culliford, 3 C. P. D. 410; 4 C. P. D. 182, C. A. A condition "no claim whatever for damage will be admitted, unless made before goods are removed" covers all damage, whether apparent or latent, which could have been discovered at the place of removal by examination with reasonable care and skill. Moore v. Harris, 1 Ap. Ca. 318, P. C. Damage caused to the goods by unseaworthiness of the ship, which existed when she started on her voyage, is not within the exception in the bill of lading. Steel v. State Line S. Ship Co., 3 Ap. Ca. 72, D. P. See also Tattersall v. National S. Ship Co., W. N. 1884, p. 70, Q. B. D. An exception of "any damage to any goods, which is capable of being covered by insurance," does not extend to a general average loss sustained by the goods. Crooks v. Allan, 5 Q. B. D. 38. See further as to the losses which fall within the perils usually excepted, Marine Insurance-Proof of loss, ante, p. 390, et seq.

Merchant against Shipowner, &c.-Limitation of Liability. 427

Statutory exemptions from, or limitation of liability.] The various acts for limiting the liability of shipowners are repealed and replaced by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104). În Part 9 of this Act, s. 503, it is provided that no owner of any sea-going ship, or share therein, shall be liable to make good, any loss or damage that may happen, without his actual fault or privity, (1), of or to goods or things taken on board, by reason of fire happening on board, or (2), of or to any gold, silver, diamonds, watches, jewels, or precious stones on board, by reason of robbery or embezzlement, unless the shipper has, at the time of shipping the same, inserted in his bill of lading, or otherwise declared in writing to the master or shipowner, the true nature and value thereof. The 25 & 26 Vict. c. 63 (after repealing by s. 2 and Sched. A. ss. 504 and 505 of the Act of 1854), enacts (sect. 54) that the owners of any ship, whether British or foreign, shall not, in cases which occur without their actual fault or privity, be answerable in damages in respect of loss or damage to any goods, merchandise, or other things on board, to an amount exceeding 81. for each ton of the ship's tonnageregistered tonnage in case of sailing ships, and in case of steam ships gross tonnage. The section contains provisions for ascertaining a foreign ship's tonnage. The defendant is also liable to pay interest on the amount from the date of collision. Smith v. Kirby, Q. B. D. 131. The section seems to extend to damage caused by delay in delivering goods: see Millen v. Brasch, 10 Q. B. D. 142, C. A. post, p. 569. Though it has been held to be otherwise in the case of passengers; L. & S. W. Ry. Co. v. James, L. R., 8 Ch. 241; see however Millen v. Brasch, supra. By sect. 516 of the Act of 1854, nothing shall be construed to lessen the liability of any master or seaman, being also owner or part-owner of the ship, to which he is subject as such master or seaman; and by sect. 506, the owner is liable for every loss or damage arising on distinct occasions as if no other loss had arisen. See The Rajah, L. R., 3 Adm. 539. By sect. 502, the above provisions apply to the whole of the Queen's dominions. By sect. 388, neither owner nor master is liable for loss or damage occasioned by the fault or incapacity of a qualified pilot, where the employment of one is compulsory. On the construction of this section, and as to when the employment of a pilot is compulsory, vide post, Negligent navigation of ships.

The master is not expressly protected in the above provisions, except in relation to loss by employment of a pilot; and this exception seems to be designed. The previous acts included him in some cases, and omitted him in others. On one of the previous acts (26 Geo. 3, c. 86) it was decided that a loss by a fire on board a public lighter, employed by the shipowner to convey the goods on board, was not within the protection of the act, which was in similar terms to the present act. Morewood v. Pollok, 1 E. & B. 743 ; 22 L. J., Q. B. 250.

Implied contracts on part of shipowner or master.] The master impliedly contracts that his vessel shall be fit for the purpose of carrying the goods; Lyon v. Mells, 5 East, 428; Richardson v. Stanton, L. R., 7 C. P. 421 ; L. R., 9 C. P. 390, Ex. Ch. ; 45 L. J., C. P. 78, D. P.; she must, therefore, be seaworthy when she starts on her voyage. Kopitoff v. Wilson, 1 Q. B. D. 377; Cohn v. Davidson, 2 Q. B. D. 455; Steel v. State Line S. Ship Co., 3 Ap. Ca. 72, D. P. Where there is no stipulation as to time, the master must sail in a reasonable time, and proceed, without deviation, to the destined port, otherwise he will be liable for any loss to the plaintiff occasioned by the delay; or, to any loss, whether by perils of the sea, or otherwise, occurring during the deviation; 3 Kent, Com. 209, 210; unless the defendant can prove that