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given for bringing goods into the country upon a legal 3 Taunton, 394, voyage. And the exception of “restraint of princes,” Gemon. does not in this case avail the master, because he knows
2 Chitty, Cases of the illegality of the voyage; and it seems, that he Tempore Manscannot aver ignorance on a subject with which he is field, 550, Hes
lop v. Jones. under an obligation to be acquainted.
Abbott, p. 289. The learning upon this subject may be found in the Right of merBook of Shipping so frequently quoted, but as no ex- don for freight. press decision has been reported upon the subject, it is see Abbott, not necessary to enlarge upon it here.
292-300. However, Lord Mansfield has certainly said, “ If he “ (the freighter) abandons all, he is excused freight,
In Luke v. “ and he may abandon all, though they are not all lost." Lyde, 2 Bur. If the goods have not reached their destined port there row. 888 ; and
again, Park on can be no abandonment, and if the merchant accept lusurance, p. them he is precluded from objecting to the freight, go, in Baillie v.
Moudigliani. though he offer to return the property. “ If, however,"
Abbott, 293, said Lord Ellenborough, “ the merchant had refused to Milles e. Bain
bridge. " receive the cargo on the ground of damage so occa“ sioned, the point would admit of some doubt;" and then, perhaps, the question might be raised.
However, the deterioration of the consignment offers no ground for a refusal to pay the freight, the owners Douglas, 272, do not covenant against the perils of the sea ; and thus Hotham v. E. I.
Company. it was, where certain tobacco was rendered useless by shipwreck, that the merchant was compelled to satisfy Abbott, p. 262,
Lutwidye v. for the freight. The consignees had accepted the goods Grey. in both these cases. Lord Tenterden sums up the matter thus :-" The only point intended to be proposed by
me, as doubtful, is the right to abandon for the
freight alone, at the port of destination: and in “ point of practice, I have been informed that this " right is never claimed in this country.”
Abbott, p. 300. The bullion of private merchants may not be carried
5 Taunton, 143, on freight without an order to the captain command- Brisbane v. Da ing him to perform that service. And where the com- cres; 3 Taun
ton, 44, Mon
tague v. Janse mander carries either public or private treasure, the & Selwyn, 32, flag-officer on that station is not entitled to any part of
such freight. Shirreff. Apportionment If a ship consigned to merchants at one port be of freight.
directed by them to land at another, where they receive
the goods, an implied promise arises on their parts to Taunton, 300, pay freight pro ratâ. In this case the cargo was coals, Christy v. Row,
and the money payable was at the rate of 20 l. per Abbott, 310, Lutwidge o.
keel. So where some tobacco was saved, the vessel Grey; Park, go, having reached her destined port, and the parties digliani ; and having accepted the salvage, the freight was adjudged see 3 Esp. 37, to have accrued. But it is payable only in respect of by Lord Eldon. 2 Burrow, 882, such goods as are saved provided they be accepted by Luke v. Lyde. the parties sought to be charged. So, where a ship, 289, 1 he Copen- libelled in the Admiralty Court for condemnation was hagen. restored, freight pro ratâ was ordered. In a case of
capture and re-capture, where the ship had gone up to the mouth of her destined port, the owner contended he was entitled to the whole freight; the merchant said nothing was due because the cargo had not been delivered. The Court of Admiralty, considering the calamity as common to both parties, directed payment of a moiety, such division being suggested by a feeling of
equity. It is observable, that in this latter case the 1 Edwards, 246, acceptance of the goods was rendered impossible by
reason of the sale.
However, in the case of a total loss, if the freight re10 East, 555 served have been at so much per month, it will be pay
able pro rata, and for this reason, at the end of each Havelock v.
month a proportionate earning has taken place. And Abbott, p. 332, so it is where the outward and homeward voyages are 333. Mackrell v. distinct, and the ship happens to be lost on her homeSimond ; 335, Byrne v. Pat ward course.
If, however, a ship be chartered at a tinson, in which specific sum, not for the quantity of goods but generally freight was al. for the voyage, and, part of the cargo being lost, deliver lowed, because the residue, it is still a question whether freight pro
last case no
ratâ can be demanded. There is a case where the could not be
severed. covenant was, that if the master would bring his freight to such a port, the merchant would pay him such a sum, and part of the goods being lost by piracy, the Court held that the merchant should not pay any thing though the residue of the cargo was unladen at
1 Brownlow, 21, the place appointed. “ It may be,” says Lord Tenter- Bright v. Cowden, “ that by the particular terms of the contract, the per; and see “ payment of the freight was made to depend upon the 167, Clarke' v. delivery of the entire cargo.” It would probably be Gurnell
. a ground for the Court of Chancery to interfere on be- Abbott, 319. half of the ship-owner, if, without any default of his, there should be only a partial loss, and the merchant should decline any payment whatever. It is good, however, as a general principle, that if the 8 East, 437,
Smith v. Wilson; voyage be not performed, no freight will be due.
3 Maule & Sel. where a Swedish ship was chartered to go a short dis- wyn, 30%,
Storer v. Gortance, but meeting with bad weather, was forced to put don. in, upon which an embargo took place, and the cargo
2 Barnewall &
Alderson, 17, was restored to the merchant; here no freight was ad- Gibbon v. Menjudged. So, where the freight was to be paid on a
4 Robinson, 77, right and true delivery of the homeward cargo from The Isabella JaHonduras Bay to London; but after a capture and recapture the cargo was sold by an order of the Vice Admiralty Court at Saint Kitts, at the master's instance; here the ship-owner's claim pro ratâ was disallowed, for the master had by his own act prevented the mer- 10 East, 378,
Hunter v. Princhant from entering into a new contract. And thus it was again where the merchant refused to accept the Idem. 526, Lid
dard v. Lopez. goods which were tendered him at a place short of their destination, upon which they were sold with notice; but it will be remembered, that there was in this case no abandonment at the final port. It will be 2 Campb. 466, collected that no freight can be asked for unless there Osgood v.
Groning. is an acceptance of the goods. And even if there be an acceptance and the plaintiff sue on the charter
7 Term Rep. party, instead of in assumpsit on the new contract (for 381, Cook v.
such it is), he will not be successful, the engagement Jennings.
being to pay on the ship's arrival at a certain place.
If the cargo be sold for the freighter's benefit, he will
not be liable to pay unless the ship have broken ground, 1 Bosanquet & for it is from that inception of the voyage that freight Puller, 634, commences. Curling v. Long.
Pending proceedings against the ship in the Admiralty Court the action for freight cannot be sustained, because it may happen that the vessel may be adjudged
to the captors, and the ship-owner's claim would then 5 East, 316, Mulloy r. Bac. be at an end (ö). ker,
Notwithstanding all these authorities, however, an express and independent stipulation will bind the merchant as to his freight, as well as any other man who
enters into a positive agreement, so that the defendants 8 Taunton, 334, were held liable under an arrangement made subseThornton v.
quently to a loss, by which they promised to pay a pro râta freight upon the plaintiffs performing certain con
ditions, which were fulfilled. 3 Campb. 475, It is no defence to an action for not paying freight to Reuss o. Meyers.
say, that the vessel which has been described in the charter-party as a Swedish is, in fact, a British ship.
(i) And the right to receive passage money is suspended in like manner.
1 Levinz, 16, Tompson v. Noel.
1. On Shipping, 80.-2. Against Fire.-3. On Lites.
The ship being chartered, and the voyage determined on, the subject of insurance next occupies the merchant's attention.
Perhaps it may not be amiss to take the policy of insurance, and comment upon its provisions as we have recently done in the observations upon charterparties (1).
Tv In the name of God, Amen. John Smith, as 1. The assured. ~ well in their own name, as for in the name, &c. " of all and every other person, &c. to whom the
same doth, may, or shall appertain, &c. doth ► make assurance, and cause himself, and them, and
every of these to be insured, lost or not lost,” &c. The names of the persons assured, or of the con. 28 George 3, signors, or of the consignees, or of the agents, must be Park, p. 31, De inserted in the policy, each by his or their usual style Viguier v.Swanand form of dealing. It is not necessary to add the word “agent,” in the policy, where a party insures in · Bosanquet
& Puller, 345, that character, and if a broker describe himself as agent Bell v. Gilson. the statute will be sufficiently complied with.
(1) Provisons which are not ordinarily inserted are marked by brackets, thus [ ].