Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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and the ship being fully equipped for sea proceeded from the
docks down a canal communicating therewith and being within
the limits of the artificial port, and there grounded, it was held
that no freight had become payable, the vessel never having
been out of the limits of the port or at sea (p). And in another

Ad. 445, and Hicks ▼. Shield, 7 £. & B. (n) See Andrew v. Moorhotue, aa re-

633. See, as to the meaning of a con- ported 5 Taunt. 435.

tract to pay freight in advance *• sub- (o) See Mollby, B. 2, c 4, s. 4, and

ject to insurance," Jackson v. Jsaacsy 3 the judgment of Eyre, C. J., in Curling

H. & N. 405, and ante, p. 212. v. Young, 1 B. & P. 636.

(m) Mashiter v. Buller, 1 Camp. 84; (p) Roelandts v. Harrison, 9 Exch.

sec also Clark v. Druisina', cited in 444.
Andrew ▼. Moorfiouse, 1 Marsh. 123.



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239



case, where a proportion of the freight was to be advanced " on
the ship having sailed/' and it appeared that the vessel had left
the harbour and proceeded into the roads where her loss took
place, with no intention of returning, but the shrouds and cables
were not in a proper condition for sailing, the mate was not on
board, the bills of lading were not signed, and the master had
soon after left her, it was held that no freight was due (q). In
the same case the charter provided that the ship " being tight,
strong, Jcc." should sail, and it was held that the seaworthiness of
the ship at the time of sailing was also a condition precedent to
the right to any freight. A similar decision was come to in a
later case (r), in which the vessel had left the harbour loaded,
and in a fit state for sailing and with the captain on board, but
the clearances not being completed or the bills of lading signed,
he afterwards left her and returned to shore. , •



Further, where a part only of the voyage has been performed,
freight is in some cases recoverable for that portion pro rata
itineris peracH.

The ancient rule of the maritime law has been stated to have
been, that if the goods were received at an intermediate port by
the merchant, and the noncompletion of the voyage proceeded
from no fault of the master, freight pro rata was payable {$). This
rule, however, whatever may have been the practice abroad, was
never adopted into our law, although in the earlier cases there
are ambiguous expressions on this point. The rule recognized in
England is this : If the original contract has not been performed,
no claim can arise under it ; but if there is a voluntary accept-
ance of the goods at a point short of their destination, in such a
mode as to raise a fair inference that the further carriage was
intentionally dispensed with, a new contract will be implied to



Freight pro
raid.



y



iq) Tkopuno* Y. Gilletpy, 5 E. & B.
209.

(r) Huditm ▼. BiUon, 6 E. & B. 565.

is) See the judgment of Lord Mans-
field in Luke v. Lyde, 2 Burr. 889.
Thig subject is referred to in the laws of
Oleron, Art. 4, the laws of Wisby, Art.
40, and in the Consolato, Chapters 36,
37 and 39, and also in the Rhodian law,
Art. 42, but it may be doubted whether
any distinct general rule on this ques-
tion can be gathered from the ancient
systems of maritime law. The terms of
these laws are obscure, and they appear
to relate usually either to cases in which



the merchant receded from his contract
and required his goods to be redelivered
to him, or to cases (probably not un-
common in times when the merchants
usually accompanied their goods on the
voyage) in which the master refused to
allow Uie merchant to retake the pos-
session of the goods on the happening
of any disaster to the ship. Bv the
Roman law freight was not allowed
where the completion of the voyage was

Prevented by sea perils. See 1 Par-
essus Lois Marit. 66, 110, 325; see
also The Hiram, 3 Rob. 180, and the
note to this case at p. 184.



V



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240



CONTRACT OF APFREIGHTHENT

pay compensation commensurate with the benefit actually re-
ceived ; that is to say, to pay freight for that portion of the
voyage which has actually been performed (0-

Thus, in an early case («), where upon a voyage from New-
foundland to Lisbon, the ship was captured after sailing fourteen
days, within four days' sail of that port, and shortly afterwards
recaptured and brought into a port in Devonshire, where the
shipowners abandoned her to the insurers, and as there was no
beneficial market for the goods in England, the owners of the
cai^o sent it to Bilboa, where it was sold for a price less than
might have been obtained if the original voyage had been com-
pleted, it was held that the loss of the market was immaterial,
and that the goods having been accepted, a rateable proportion
of the freight was payable. It is to be observed, that the (acts
upoh which the Court gave judgment were stated in a special
case, and that it does not appear that the shipowners ever offered
to carry the goods on to Lisbon, or that they were asked to do
so ; and it may be doubted whether the same decision would
now be arrived at on similar facts.

Upon the same principle where a ship was freighted to Ham-
burgh, and was prevented by restraints of princes from arriving
there, and the consignees directed the master to deliver the cargo
at Gliickstadt, and accepted a portion of it there, it was held
that they were liable to pay fi-eight pro raid for the goods which
they had accepted (x).

In an earlier case in the House of Lords (y), where the goods
were to have been delivered at Glasgow, and the ship having
been lost within a short distance of that port, the owners of
some of the goods abandoned them to the insurers, who took
possession of that part of the cargo, and conveyed it to Bristol
(although the master provided another ship, and offered to carry
it on to Glasgow), it was held that the whole freight was payable.
Freight pro rata was also decreed as to another portion of the
goods which the master decUned to carry on to Glasgow, and
which the agents of the owners of the goods took possession of,
and sent on there by another ship.

In order, however, to give a right to freight pro rat&^ the in-

(/) See the judgment of Parke, B., in («) Luke ▼. Lyde^ 2 Burr. 889.

y Her boom ▼. Chapman, 13 M. & W. 238; (x) ChrUty v. Row, 1 Taunt. 800.

Mulloy V. Backer, 5 East, 316; see also (y) Lutwidge v. Orey, cited in Lmie

the judprment in Hunter v. Prinsep, 10 v. Lyde, 2 Burr. 889 ; and more fully in

East, 378, and the cases cited below. Abbott on Shipping.



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AND ITS INCIDENTS. 241

terraption must occur during the voyage. Thus, wherie the ship
was captured before she broke ground, it was held that no claim
of this kind could arise, although the shipowners had incurred a
great expense in loading the cargo {z). It is important to re-
collect, that in order that the acceptance of the goods may be
relied on as evidence of a new contract, it must appear that it
took place under circumstances from which it may reasonably
be inferred that the further carriage was dispensed with. Thus
it was held, that no claim to freight pro rata existed where
the master, before the completion of the voyage brought the
ship back, because there was a danger of her being confiscated
at the port of discharge, and landed the cargo, and afterwards
J^I proceedings having been taken by the owners of it to pre-
vent him from selling it, it was by consent delivered into their
hands without prejudice to the rights of the parties (a). In
another case the goods were to be carried from Shields to
Lisbon, and the freight was by the terms of the charter-party to
be paid on a right delivery of the cargo ; the ship sailed from
Shields to Portsmouth, where she joined convoy, and after
sailing from Portsmouth and being detained nearly a month by
contrary winds, was recalled by the convoy, owing to the hostile
occupation of the port of delivery ; she then returned to Ports-
month, where the cargo was sold by consent of all parties with-
out prejudice to their rights, after an application had been made
to the shippers to accept the cargo, accompanied by a notice
that the shipowners reserved their right to proceed for the
freight, to which the former replied that they did not consent to
the goods being landed if they were to be called upon for the
freight It was held, upon these facts, that no claim for freight
pro rata existed (6).

Where the goods were to be delivered in London, and the
freight was by the charter-party to be paid on a right delivery
of the cargo, and the ship after capture and recapture was
wrecked at St. Kitts, where the cargo was sold by the Vice-
Admiralty Court on the application of the master, who acted
honifidej but without instructions from any of the parties, it was
held, that the sale was tortious and unauthorized, and that no
freight could be recovered (c). The Court distinguished the

(«) Curling v. Long, 1 B. & P. 639. (c) Hunter v. Prinsep, 10 East, 378;

(a) Osgood T. Groning, 2 Camp. 466. gee also The Louisa, 1 Dods. 810.
W Liddiard v. Lopes, 10 East, 526.



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242 CONTRACT OF AFFREIGHTMENT

case on this ground from an earlier case(rf), in which a ship and
cargo having been condemned and sold by a French Court of
competent jurisdiction, and this sentence having been afterwards
reversed, it was held that freight /wo rata was due, as the ship-
owners had been prevented from carrying the goods to the de-
hvery port by no fault of their own, but only by the act of the
foreign Court in ordering a sale pending the suit.

The carriage of the goods, as far as it actually takes place,
must also be the act of the shipowners, in order to entitle them
to freight pro rata, A ship being chartered from London to
Buenos Ay res and to return with a cargo to a port between
Gibraltar, and Antwerp, the freight was to be paid in a gross
sum on the delivery of the homeward cargo. The ship pro-
ceeded to Buenos Ayres and loaded goods on board, and then
sailed for Gibraltar, but on her way she was obliged by sea
perils to put into Fayal, where about one-third of the cargo was
disposed of, partly on account of the goods having been rendered
worthless by sea damage, and partly in order to defray neces-
sary expenses. The remainder was left there by the master,
who returned to England, leaving instructions with the Vice-
Consul at Fayal to forward it to Gibraltar, but without giving
him any authority on the shipowner's behalf to contract for the
hire of a vessel. The Vice-Consul thereupon chartered a vessel
on behalf of the owners of the cargo, which carried the remainder
of the cargo to Gibraltar and delivered it there on payment of
freight. It was held, under these circumstances, that the car-
riage to the port of destination could not be said to be done by
the shipowners, and that the charter-party freight was not pay-
able ; and also that no freight pro raid could be claimed in re-
spect of the carriage from Fayal to Gibraltar, as this was not the
act of the shipowners, but that a reasonable freight was due to
them for the carriage from Buenos Ayres to Fayal from which
the shippers had derived benefit, and after which they had, in
fact, accepted the goods at Fayal, by their agent the Vice-
Consul, in order to forward them on to Gibraltar {e).

The whole question of the right to freight pro rata itineris
was also much considered in a more recent case, in which the
principles mentioned above were recognized. In this case a
cargo had been shipped at Batavia to be delivered to the plain-
er) BaillU V. Moudigliani, Park on (e) Mitchell v. Darthet, 2 3.^.0.555,
Insur. 90.



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AND ITS INCIDENTS. 243

tiff at Rotterdam ; the vessel was compelled by stress of weather
to pat into the Mauritius, where the cargo was found to be so
damaged that it was of necessity sold by the master, who acted
in this respect bondjide, but without the knowledge of either the
shipper or of the shipowner. The Court held that these facts
afforded no presumption that the owner of the cargo had agreed
to receive it at the intermediate port, and consequently that no
freight had become due (/).

Lastly, it must be recollected, that where the contract, whether Form of claim,
it be under seal or not, provides for the delivery of the goods at
a particular port, no action lies on it where this delivery is pre-
Tented, although there may have been an acceptance of the
goods at an intermediate place. The right to freight, if it exist,
arises out of a new contract, either express or implied (g).

It often becomes important, with respect to questions of Sing^le and
frei^t, to ascertain whether the contract is for one entire voy- voyages,
age, or for several distinct ones. Thus, if a ship is to proceed
from A. to B. and back, it is material to consider whether this
is meant to be one, or two distinct voyages ; for if the outward
and homeward voyages are intended to be distinct so far as
relates to freight, the non-performance of the return voyage will
not affect the claim to the outward freight.

The determination of this question depends in all cases upon
the terms of the particular contract that has been made. No
general rule can be laid down. Several of the cases, however,
which have been already cited as to conditions precedent to the
right to freight, will be found to bear on this point.

Expressions such as " the outward and homeward voyages "
are important to show an intention tliat they should be con-
adcred as distinct, and an opposite construction would probably
be pat upon a contract which contained a stipulation that the
freight was to become due, or to be paid, at the home port (A).
Where a charter-party provided that a vessel should ship goods
for Kingston, or any other port in Jamaica, and having dis-
charged the same should receive on board a cai^o from thence,
or from a port on the Spanish Main, if required, and deliver the

(/) rtUrboom v. Chapman, 18 M. & (A) See Malyne, p. 98; Smith v. Wit-

"^•2aO. ton, 8 East, 437; Mackrill v. Simons,

ig) Cook V. Jennings, 7 T. R. 381 ; Abbott on Shipping.
«nd see liddiard v. Lopes, 10 Eaat, 526.

r2



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244



CONTRACT OF AFFREIGHTMENT



same at a port in the United Kingdom on being paid a certiun
sum for freight in ten days after sailing from Gravesend, and a
fiirther sum in two months after a right delivery of the home-
ward cai^o, provided she should be required to proceed to one
port only in Jamaica, and a further sum should she be required
to go to two or more ports in that ishmd, and in case she should
be ordered to the Spanish Main, 4/. per day was to be paid for
every day afler the twenty-fifth after her arrival at Jamaica,
until despatched from her loading port ; demurrage at a certain
sum per month, or in proportion for a less period, payable on
settlement of the hire of the ship : it was held, that the meaning
of the parties was that the voyage to the Spanish Main was to
be part of the homeward voyage, not an intermediate one, and
that the 41. per day was not payable until two months afler the
delivery of the homeward cargo (i).



Rules in
Court op Ad-
miralty AS

TO FREIGHT.



The Court of Admiralty, where questions as to freight fre-
quently arise in the cases of captured vessels, has usually acted
upon the same principles ; but in some peculiar cases this Court
has exercised a wider and more equitable jurisdiction over ques-
tions of freight. Thus, it has been frequently decided that, in
ordinary cases, the goods must be carried to their destination
before a claim for freight can arise (A). There must be an entire
execution of the contract, or such an execution as the shipowner
can effect consistently with any incapacity under which the cargo
may labour. Where the non-completion of the contract is caused
by an incapacity of this description alone, the goods owner can-
not allege that the contract is not performed. If, however, the
vessel herself is incapacitated, the owner cannot demand the
freight, for which he stipulated only on the performance of his
engagement (Z). Thus, where a ship sailed on a voyage from
Liverpool to Halifax and back, and after proceeding about half
way to Halifax she was captured and recaptured, and brought
back to Plymouth, and the charter-party showed that the inten-
tion of the parties was that the freight should be paid on the
completion of the voyage, it was held, that no freight pro rata
was claimable (m).



(i) Crazier v. Smithy 1 M. & Gr. 407.

(k) See the judgments in The Diana^
6 Rob. 7 1 ; and in The Frow Anna Catha-
rina, 6 Rob. 271 ; also Tfte Etrusco, cited
6 Rob. 69; and the cases collected in
the following notes. This principle ap-
pears not to have been acted upon in



The Racehorse, 3 Rob. 101 ; and in 2**
Hamilton, cited by Sir W. Scott, ib. 107.

(/) See the judgment of Sir W. Scott
in The Fortuna, Edw. 57.

(w) The Hiram, 8 Rob. 180; The
Wilhelmituh ib, 234; and the judgment in
The Fortuna, ubi tupra.



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AND ITS INCIDENTS. 245

Where a ship in distress put into an English port, after having
performed the greater part of her voyage, and she was seized
there, on suspicion, as a prize, and the cargo was necessarily-
taken out in order to repair the ship, but afterwards the cargo
was restored, and at a later period the ship and part of the cargo
were sent to London, the remainder of the goods being forwarded
by another conveyance to its destination ; it was held, that the
shipowners were entitled to freight pro rata, and only pro rata,
as the failure of the performance of the original contract was in
no way owing to the cargo (w). And where a Swedish ship on
a voyage to Lisbon was brought into an English port under an
embargo against Swedish ships, and it became necessary to
unload the cargo, which was claimed for merchants at Lisbon
who were not subject to the embargo, and they were compelled
to find another ship to convey it to its market, the Court held,
that as the detention and the carriage of the cargo out of its
course had arisen by reason only of the national character of the
ship without any co-operation on the part of the cargo, that no
freight was payable (o).

So, where a cargo belonging to English merchants was to be
taken by a Swedish ship to Venice, and a few days after the
vessel sailed she was obliged by bad weather to put into Fal-
mouth, where she was detained under an embargo against
Swedish ships, but her cargo was restored to the merchants, it
was held, that they were not liable for any freight, although they
were bound to pay the expenses incurred by the ship on account
of the cargo (p).

Captors who perform the contract by carrying the goods to Application of
their destination are usually entitled to freight. This is the ^^^pturTand
general rule (q). And in some cases, which are rather equitable substantial
applications of this rule than extensions of it, it has been held, of conSact^
that freight is payable although the voyage has not been per-
formed. Thus, where the goods had not been carried to the
actual port of destination in Holland, but to this country, to
which the merchants had intended them finally to come, and to
which they would have been consigned in the first instance but
for r^;ulations of the Dutch Government, which prevented their

(») The Copenhagen, 1 Rob. 289. (q) The Fortune, 4 Rob. 278 j The

(o) The Werldiborgaren, 4 Rob. 17. Diana, 5 Rob. 67 ; The Vrow Anna Ca^

(p) The Isabella Jaeobina, 4 Rob. 77. $harina, 6 Rob. 269*



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246 CONTRACT OF AFFREIGHTMENT

being brought here directly, the Court held that they had been
brought to their real, although not to their nominal destination,
and that freight was, therefore, due (r). And in the cases of
the American ships bound to France or Holland, which were
brought into the ports of this country under the prohibitory law
in force during the war of the beginning of this century, the full
freight was pronounced to be due where the owners of the car-
goes elected to sell here, for the Court considered that a voyage
from America to this country was nearly the same in effect as a
voyage to the contiguous countries to which the vessels had
been originally destined (s).

The decisions in the Court of Admiralty in the peculiar cases
of neutral vessels carrying, in war time, cargoes liable to seizure,
do not, properly speaking, form exceptions to the general rule,
since in these cases the voyage is, as sigainst the party who is to
pay freight, considered to be completed. Thus, it has been long
settled that a neutral ship may carry the goods of an enemy,
subject to the right of the other belligerent to bring in the ship
for the purpose of obtaining an adjudication on the cargo {t).
And it has usually been the practice of the Court of Admiralty
to allow freight to neutral vessels, where the cargo is condemned
as enemy's property, and the ship is restored : for in these cases,
capture is equivalent to delivery ; that is to say, the captor who
possesses himself jwre helli of the enemy's goods is considered
to represent the enemy, and since he prevents by his seizure the
completion of the voyage, and the earning of the whole freight,
the capture, as against him, operates as an actual delivery of the
goods to the consignee (w).

(r) The Diana, 5 Rob. 67. or the ship has been guilty of a de-

(s) See the judgment of Sir W. Scott partnre from pure neutral conduct ; as,

in The Friends^ Edw. 246. for instance, by carrying from one enemy

(t) See the judgments in The Bremen to the colony of another allied in the

^iugg^f 4 Rob. 91, and in Tlie Vrow war, or by carrying on for the enemy

Henricoy ib, 347. his coasting or his colonial trade, or by

(tt) See the judgment in The Capen- acting in his revenue service. See the
hagen^ I Rob. 29 1; the note to The Atlas, judgment in the Frow Henrico, nbi
3 Rob. 304; and the judgments in Tlie eupra, and the cases cited at the corn-
Bremen, ubi supra, and in The Prosper, mencement of this note ; also The Roee,
Edw. 76. If the ship and cargo, being 2 Rob. 206 ; 7%e Emanuel, 1 Rob. 296 ;
both neutral, are restored, the ship must The Immanuel, 2 Rob. 186 ; The Rebecca,
proceed and complete her voyage before ib, 101 ; and The Conwenientia, 4 Rob.
she can demand n*eight See the judg- 201. See also the American cases, The
ment in The Copenhagen, ubi supra. In Fanny, 10 Wheaton, 658; The Com^
these cases the captor takes cum onere, mercen, 2 Gallison, 264. The principle
and the freight is a lien which precedes which is acted ujpon in these cases is,
all other claims ; unless, indeed, tliere that on the breaking out of a war, neu-
bave been mala fides in the transaction, trals have a right to carry on their or-



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AND ITS INCIDENTS.



247



It will now be convenient to mention some peculiar cases in Peculiar
which questions have been raised as to the right to freight.

It is said by Molloy, that if cattle are sent on board and the Freight for
freight is to be paid for their lading, it becomes due even although
they die on the voyage, and that this is the rule if there is no
particular agreement made either as to the lading or as to the
transport ; but that it is otherwise if the freight is to be paid
for transporting them (x). In practice any case of this kind
would depend upon the terms of the particular contract under
which the cattle were shipped.



voyage.



Questions have also arisen as to the effect of a detention Effect of de-
during the voyage on the claim for freight where it is to be paid ^®""°" dunng
at 80 much for a given time, as, for instance, as so much per
month. The determination of these cases depends also upon the
terms of the contract The general rule is, that the freight
continues payable, if the detention does not discontinue the
voyage, or suspend the contract, and does not proceed from the
default of the shipowner (y). In a case in which the contract
provided that a deduction should be made from a gross sum
payable for the freight, " in case of the inability of the ship to
execute or proceed on the service;" these words were held to
extend to an inability to proceed to sea caused by the deatli and



CMsitmed trade ; but they are not en-
tttled to engage in trades which are
open to them only by reason of the
accidents of the war. See The Wilhel-
•ma, 2 Rob. 101, note, and the judgment
in Tht lmmanueh2 Rob. 186. Freight



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 32 of 101)