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Abbott, p. 279,
Lady James v.
E. I. Compy.

2 Vernon, 210,

Edwin v. E. I.
Company;
1 Equity Cases,

abridged, 375,

Westland v.
Robinson;

same case, cited
in 2 Vernon,

212.

2 Chancery Cases, 74, Newland v. Horseman.

Cases Tempore
Finch, 149,

and there being a remedy against the master on his covenant. If the merchant do not covenant to supply a full lading, the owners cannot recover freight for more goods than are actually shipped.

The Court of Chancery will relieve owners where there is an incorrectly penned charter-party; and where there was an agreement to pay freight for a homeward cargo, but the factor had no goods to send home, the merchant was decreed to fulfil his contract.

And where a suit was pending in a foreign court between the master and the merchant, but the damages had not been ascertained, the Lord Chancellor permitted the ship-owner to bring his action here upon the covenants, but at the same time directed that the merchant should give such matters in evidence as should be equitable to mitigate the damages.

But if the foreign suit be concluded, the claimant may not sue here.

Equity will of course afford relief against fraud.

Equity will deny freight to an owner who refuses to

Norton v. Serle, join in the outfit.

and see 2 Vernon, 242, Draddy v. Deacon; Anonymous, Skinner, 230.

10 East, 555, Havelock v, Geddes.

Sometimes the merchant agrees to pay so much by the month (e), or week; if he does this, he must abide by his contract, though the vessel may be out of repair when the goods are shipped, and though the owner have covenanted to repair. And in analogy with the cases on demurrage, a contrary wind, or an embargo, or even a detention of some weeks, and confiscation of part of the cargo, will not release the merchant from his specific 2 Campb. 627, payment, the vessel being afterwards liberated.

5 Barnewall & Cresswell, 167,

Ripley. Scaife.

Moorsom v.
Greaves.

(e) Which means a calendar month. A month, in mercantile contracts means a calendar month. 1 Espinasse, 186 Jolly v. Young.

But a hostile aggression, which suspends or destroys the contract, destroys also this right to freight; for were it otherwise, it might, on the one hand, prove ruinous to the owner, and on the other, equally destructive to the freighter.

It is certainly the wisest course for the master to retain the cargo until he is paid for his freight; but by delivering it up to the consignee, he does not lose his remedy against the merchant-charterer. Lord Kenyon was, indeed, of a different opinion at Nisi Prius, but he agreed afterwards with the court that the freight might, under these circumstances, be recovered. So it was, although the consignee drew a bill of exchange upon the charterer, such bill not being for the master's accommodation. And, as we have before said, the words "he "or they paying freight" are introduced for the master's benefit solely, and he is not, therefore, bound to the consignor to withhold the delivery of the cargo until he has been paid for the freight.

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Indeed, as the master has no prospective lien on the freight, he cannot insist on receiving the money; and, in a case where he gave the merchant notice to pay no one 3 Barnewall & except himself, but the merchant nevertheless paid the Cresswell, 647, owner on demand, it was held that no action could be Cotesworth. maintained by the commander.

The liability of the party who receives goods to pay the freight has been already noticed, but that is in general where no express agreement on the subject exists between the owner and charterer. Where, however, a regular deed was entered into, but the indorsees of the bill of lading were no parties to it, nor stipulated to pay any thing, it was not held competent for the shipowner to sue them, as no implied promise could be raised by their receipt of the goods. Nor would they ordinarily be liable, in the absence of a charter-party, if

Atkinson v.

2 Maule & SelMoorsom v. Kymer.

wyn, 303,

1 Marshall,248, same case.

5 Taunton, 612, they take, not under the bill of lading, but under an Pinder v.Wilks; order from the consignees, although the goods are entered at the Custom House in their names. Yet, as it appeared in the case cited that they had been accustomed to deal in that manner, an implied promise was raised under these latter circumstances.

1 Maule & Sel

wyn, 157, Wilson v. Kymer.

Also, the consignor's agent, known in that character, although he enter the goods in his own name at the Custom House, is not liable, especially if they be not consigned to him, there being neither an express nor an Ward v. Felton. implied contract.

1 East, 507,

2 Shower, 443,

5 Taunton, 477,

However, on the general principle, the consignee is Roberts v. Holt, answerable. And so is the indorsee of a bill of lading, who takes the goods by virtue of it, where the charterparty provides that the consignee or his assigns shall 1 Marshall,146, pay according to the terms of the deed, and it was so determined, although the indorsee had paid over the proceeds before the demand of freight (g).

Bell v. Kymer;

same case.

So also is the

great case of Cock v. Taylor; 13 East, 399.

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3 Bingham,383, ..
Dougal v.
Kenible.

Freight when

payable by cap

tors.

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Goods were consigned to A. B. and Co. " he or they paying freight for the same. A. B. and Co. indorsed the bill of lading to their broker, and then became bankrupt; the broker was held liable to pay the freight."

If a ship be captured on her voyage the persons so seizing her are liable to freight as the consignees would have been, for they thus put a violent end to the adventure. This principle assumes that the vessel taken is

(g) The distinction between Moorsom v. Kymer, and Bell v. Kymer seems to be, that in the first case there was an express agreement, and the law would not therefore raise an implied undertaking; but the latter contract arose on the bills of lading, and the plaintiff, the charterer, had no means of resorting to any other persons for the freight. See 2 Maule & Selwyn, 317.

See Lawes on Charter Parties, p. 271; Abbott,

the cases.

a neutral. The proceedings to recover it under these circumstances usually take place in the Admiralty Court, and it is observable, that where the ship is condemned, and the goods are to be restored, the captor claims the freight; where the cargo is prize, and the ship safe, the captor is to discharge the freight. On the forfeiture of the ship, the captor's right to be paid depends on his performance of the voyage, or on his fulfilling the intent of the contract. As where the delivery of the cargo took place in consequence of capture in the port which the consignees had had at first elected, though they had P. 290. been unable from Dutch policy to get them originally Lawes, 257; sce sent there. But if the voyage be not performed, or if any condition preceding be not carried into effect, freight will be denied. As, on capture and re-capture, the ship being brought back to the port whence she departed; in cases of embargo, the voyage being abandoned; again, where the captor took the ship to a different port, and upon this last occasion, although the proprietor afterwards sold the See the cases, goods at the place to which the ship was carried. The Lawes, 282, et captor, however, is to pay freight, where he takes a neutral seq. vessel conveying goods licensed by the government of the neutral nation, and not contraband according to the law of nations; or goods from the port of one hostile country to the port of another equally hostile; he is to pay freight for innocent goods separated from such as are contraband; and in one case, upon a re-capture, where See Lawes, p. the vessel, which had performed her outward voyage, put into a port, after her re-capture, somewhat short of her original destination. The captor makes his seizure Abbott, p. 290. cum onere, he is liable therefore for the prize-master's negligence, and for improperly sailing to a distant port (h).

(h) And sometimes to the whole amount of the freight, though the cargo saved do not cover it. Where, however, at

275 &c.

Abbott, 289.

Ibid.

Lawes, 287.

3 Merivale, 20, Thurgar v. Morley.

Illegal voyage.

But he is exonerated in the case of taking contraband goods, whether the master be or not acquainted with the illicit traffic, nor is he liable where the cargo comes as produce of the colony of a belligerent power to the mother country; nor where the ship is employed "in the coasting trade between one port and another of the same country, or in carrying "the goods, even of neutrals, directly from the mother country to its colony, or from one hostile nation to the "colony of another hostile nation in alliance with it," unless such dealings are customary in time of peace, or be authorized by public treaties.

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And the owner of a neutral ship must conduct himself with strict good faith, to come within the rule; false papers, and indeed, any act which shows mala fides, will deprive him of his title to freight upon these

occasions.

The Commissioners of Transports chartered a ship, which made a capture, and upon petition, two-thirds of a moiety of the proceeds were ordered to be paid to the owners. The commissioners proposed to deduct the freight from this sum, but the Court held that the warrant of the Crown was quite discretionary, and directed the sum of 6,000l. claimed for freight, to be paid into court, without prejudice to any question arising upon the subject of ownership.

If the voyage be illegal, freight may not be recovered. An order of council permitting a consignee to land goods upon condition of re-exporting them immediately does not legalize the voyage, for freight is a reward

ship was restored by consent, the Court of Admiralty would not decree payment of the balance of freight, and compel the captain to account for the value of the cargo besides. Lawes, p. 296. Sometimes a moiety of the freight will be decreed. Id. p. 297.

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