Muller v. 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 of the illegality of the voyage; and it seems, that he cannot aver ignorance on a subject with which he under an obligation to be acquainted. is The learning upon this subject may be found in the Book of Shipping so frequently quoted, but as no express decision has been reported upon the subject, it is not necessary to enlarge upon it here. 2 Chitty, Cases Tempore Mansfield, 550, Heslop v. Jones. Abbott, p. 289. Right of mer chant to aban don for freight. See Abbott, 292-300. In Luke v. However, Lord Mansfield has certainly said, "If he (the freighter) abandons all, he is excused freight, "and he may abandon all, though they are not all lost." Lyde, 2 BurIf the goods have not reached their destined port there row, 888; and again, Park on can be no abandonment, and if the merchant accept Insurance, p. them he is precluded from objecting to the freight, 90, in Baillie v. Moudigliani. though he offer to return the property. "If, however," Abbott, 293, said Lord Ellenborough," the merchant had refused to "receive the cargo on the ground of damage so occa 66 sioned, the point would admit of some doubt;" and then, perhaps, the question might be raised. it However, the deterioration of the consignment offers Milles e. Bainbridge. Company. 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. was, where certain tobacco was rendered useless by shipwreck, that the merchant was compelled to satisfy Abbott, p. 292, for the freight. The consignees had accepted the goods Grey. in both these cases. Lord Tenterden sums up the mat ter 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." Lutwidge v. Abbott, p. 300. Taunton, 143, The bullion of private merchants may not be carried on freight without an order to the captain command- Brisbane v. Daing him to perform that service. And where the com- cres; 3 Taun H ton, 448, Mon tague v. Janve- mander carries either public or private treasure, the rin; 5 Maule & Selwyn, 32, flag-officer on that station is not entitled to any part of such freight. Warren v. Abbott, 310, Grey; Park, 90, digliani; and see 3 Esp. 37, by Lord Eldon. 2 Burrow, 882, Luke v. Lyde. Baillie v. Mou If a ship consigned to merchants at one port be directed by them to land at another, where they receive the goods, an implied promise arises on their parts to 1 Taunton, 300, pay freight pro rata. In this case the cargo was coals, Christy v. Row. and the money payable was at the rate of 20l. per keel. So where some tobacco was saved, the vessel having reached her destined port, and the parties having accepted the salvage, the freight was adjudged to have accrued. But it is payable only in respect of such goods as are saved provided they be accepted by the parties sought to be charged. So, where a ship, libelled in the Admiralty Court for condemnation was 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 acceptance of the goods was rendered impossible by reason of the sale. 1 Robinson, 289,1 he Copenhagen. 1 Edwards, 246, The Friends. 10 East, 555. Havelock v. However, in the case of a total loss, if the freight reserved have been at so much per month, it will be payable pro ratâ, and for this reason, at the end of each 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 homeward course. If, however, a ship be chartered at a specific sum, not for the quantity of goods but generally for the voyage, and, part of the cargo being lost, deliver the residue, it is still a question whether freight pro Simond; 335, Byrne v. Pattinson, in which last case no freight was allowed, because the voyages There is a case where the ratâ can be demanded. As could not be severed. 1 Brownlow,21, Bright v. Cowper; and see 1 Bulstrode, 167, Clarke v. Gurnell. Abbott, 319. 8 East, 437, Smith v. Wilson; 3 Maule & Sel dis wyn, 308, Storer v. Gor don Alderson, 17, Gibbon v. Men doz 4 Robinson, 77, The Isabella Ja cobina. It is good, however, as a general principle, that if the voyage be not performed, no freight will be due. where a Swedish ship was chartered to go a short tance, but meeting with bad weather, was forced to put in, upon which an embargo took place, and the cargo 2 2 Barnewall & was restored to the merchant; here no freight was adjudged. So, where the freight was to be paid on a right and true delivery of the homeward cargo from Honduras 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, chant from entering into a new contract. And thus it was again where the merchant refused to accept the 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 collected that no freight can be asked for unless there is an acceptance of the goods. And even if there be an acceptance and the plaintiff sue on the charter Hunter v. Prin cep. Idem. 526, Liddard v. Lopez. 2 Campb. 466, Osgood v. Groning. 7 Term Rep. 381, Cook v. Jennings. 1 Bosanquet & Puller, 634, 5 East, 316, Mulloy v. Bac ker. party, instead of in assumpsit on the new contract (for such it is), he will not be successful, the engagement 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, for it is from that inception of the voyage that freight commences. 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 be at an end (i). 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 subsequently to a loss, by which they promised to pay a pro râta freight upon the plaintiffs performing certain conditions, which were fulfilled. Thornton v. Fairlie. 3 Campb. 475, Reuss v. Meyers. It is no defence to an action for not paying freight to 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 în like manner. 1 Levinz, 16, Tompson v. Noel. SECTION IV. OF INSURANCE. 1. On Shipping, &c.—2. Against Fire.-3. On Lives. 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). "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 σε 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 consignors, or of the consignees, or of the agents, must be inserted in the policy, each by his or their usual style and form of dealing. It is not necessary to add the word "agent," in the policy, where a party insures in that character, and if a broker describe himself as agent the statute will be sufficiently complied with. (1) Provisons which are not ordinarily inserted are marked by brackets, thus [ ]. 28 George 3, son. Bosanquet Bell v. Gilson. & Puller, 345, |
