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Ann. Cas. 406; The Tornado, 108 U. S. ^^7-

342, 27 L. Ed. 747, 2 S. Ct. 746; Reed v. 63. Delivery of part.— Brittan v. Barn-
United States (U. S.), 11 Wall. 591, 20 ahy (U. S.), 21 How. 527, 16 L. Ed. 177.

4 Car— 53



§§ 4341-4342 carriers. 3940

wharf existed, the refusal of plaintitT to build one constituted no defense to an
action for the freight.^^

Agreement of Parties. — The general rule that delivery of the goods at the
place of destination is necessary to the earning of freight may be varied by stip-
ulations ; but they must be in writing, and be signed by the parties, before they
can control the operation of the law merchant.'^'"^ A provision in a bill of lading
that the freight shall be "considered as earned, steamer or goods lost or not lost
at any stage of the entire transit," is valid and enforceable.'^*'

Reasonable Time for Consignee to Receive Goods. — It seems that under
a bill of lading, otherwise in the usual form, but having upon its face these
clauses : "Goods to be received at the ship's tackles, when ready for delivery ;
freight payable before delivery, if required" — not merely safe arrival and notice
thereof to the consignee, but reasonable time to enable him to receive his goods
at the ship's tackles, is necessary to the earning of freight.^'"

Presented by 'Wrongful Act of Charterer. — The general rule, is that a
shipowner, who is prevented from performing the voyage by a wrongful act of
the charterer, is prima facie entitled to the freight that he would have earned^
less what it would have cost him to earn it.*'^

Necessity for Entering on Voyage. — It is an inherent element in a contract
of affreightment under a bill of lading, that the vessel shall enter on the voyage
named, and begin the carriage of goods shipped, or, as it is technically called,
break ground, before a claim to freight money can arise, unless the shipper of
the goods, the vessel remaining ready to enter on the voyage, undertakes to
reclaim the goods, in which case, the circumstances under which the contract
was entered into continuing substantially the same so far as respects the vessel,
the shipper cannot reclaim the goods without paying at least full freight.''^

Acceptance at Intermediate Point. — In general, freight is not due and
payable until delivery of the goods to the consignee at the port of destination or
acceptance of the cargo at an intermediate port by the owner thereof."*^

§ 4342. Freight Pro Rata Itineris. — The contract of affreightment is an
entirety; and where there has been no complete fulfillment on one side, and no
fault or waiver on the other, no freight money can be recovered."^ As a gen-
eral principle, freight is payable only on so much of a cargo as is delivered, and
there is an equitable presumption that such is the contract of the parties, to over-
come which a contrary intent must be expressed with reasonable clearness and
certainty." -

Acceptance of Goods by Consignee. — The master is entitled to freight pro
rata itineris in all cases where there has been a voluntary acceptance of the goods

64. Delivery at wharf. — McCaughn v. 67. Reasonable time for consignee to re-

Milliot, 29 So. 818, 78 Miss. 976. ceive goods. — Fay v. Alliance Ins. Co.

65. Agreement of parties. — Brittan v. (Mass.), 16 Gray 455.

Barnaby (U. S.), 21 How. 527, 16 L. Ed. 68. Presented by wrongful act of char-

177. _ terer.— The Gazelle, 128 U. S. 474, 32 L.

A stamp upon the back of the bill of jr^i 495 9 S. Ct. 139.



lading, stating, amongst other things,



69. Necessity for entering on voyage. —



that the entire freight was payable prior The* Tornado, 108 U. S. 342, 27 L. Ed.

to delivery, 11 required, which was put ^-^^ 2 S Ct 746

there by the ship's owner, but which _L » ' ' ^ ■ ^ j- ^ • ^

there was no evidence was recognized by ^j!^- Acceptance at mtermediate point.—

the shipper as part of his contract, cannot ^']^''l^'- %^- J^^"^ a ^'o^n''" '

vary the obligations of the contract so as ^^'^- ~^' ^^^ ^- ^- ^- ^^'^■

to authorize a demand for freight before 71. Freight pro rata itineris.— The Har-

the goods were ready for delivery. Brit- riman (U. S.), 9 Wall. 161, 19 L. Ed. 629;

tan V. Barnabv (U. S.), 21 How. 527, 16 Mitsui v. St. Paul Fire, etc., Ins. Co., 202

L. Ed. 177. ' Fed. 26, 120 C. C. A. 280.

66. Decree, British, etc.. Marine Ins. 72. Decree, 95 Fed. 837, affirmed in

Co. V. Portland Flouring Mills Co., 124 Christie v. Davis Coal, etc., Co., 110 Fed.

Fed. 855, affirmed in 130 Fed. 860, 65 C. 1OO6 49 C C A 170
C. A. 344.



3941 CARRIAGE OF PROPERTY. §§ 4342-4343

at the port of disaster. The rate is to be ascertained by comparing the portion
of the voyage performed with the entire length of itJ^ But where the master
refuses to repair his ship and send on the goods, or to procure other means for
the purpose, and the owner of the goods then receives them, this is not such an
acce])tance of the goods as will entitle the shipowner to a pro rata freightJ**

Vessel Detained by Inevitable Necessity.— When a vessel, bearing freight,
is from inevitable necessity detained at an intermediate port, and the goods are
there voluntarily accepted by the owner, freight is to be paid according to the
])roportion of the voyage performed, and the law will imply a contract to that
effect.' 5

Shipment Too Large to Be Landed in One Day. — When the ship master
has a larger shipment under one bill of lading than can be landed in the lousiness
hours of one day, he must take care not to land it in such ciuantities as to be
unable to ascertain the pro rata freight. Unless he takes this care, the goods
landed will be under his care and responsibility without additional expense to
the consignee of them until they shall be ready for delivery."^^

Less Damages Sustained by Owner. — Where libelant broke an entire con-
tract of aft'reightment by refusing to transport all of a pile of lumber contracted
to be carried, he was nevertheless entitled to recover for the lumber carried, less
the damages sustained by the owner of the lumber by reason of the breach of
contract.''"'

§ 4343. Goods Lost or Abandoned. — Under a provision in a charter party
of a vessel as a private carrier of oil in cases that the cargo should be received,
and delivered alongside within reach of the vessel's tackles, and that the ship
should receive a stated sum for each case delivered whether full, part full or
empty, proof that the vessel received the number of cases stated in the bills of
lading, that none were stolen during the voyage, and that all on board were
delivered alongside by her tackles into lighters, entitles her to freight on all shown
by the bills of lading, although there may have been a shortage when the oil
reached its destination."-

When a vessel and cargo are abandoned at sea by the master and crew,
without intention to retake them, the shipowner can maintain no claim to the
freight.'^'* But where a vessel, abandoned at sea under circumstances which
rendered such abandonment excusable, so that it did not operate to terminate the
contract of affreightment, is brought into port by salvors, but by the action of
the cargo owners the resumption of the voyage is prevented, the shipowner is
entitled to be compensated for his loss of freight on principles of equity, but
under such principles his damages can not go beyond compensation, and he is
not entitled to recover the gross freight he would have earned under the contract,
but only the estimated net freight, and from that should be deducted the net
amount the ship earned, or should reasonably have earned, during the time it
would have taken her to complete the voyage. ^*-

Without Fault of Master. ^When some portion of a perishable cargo has
suffered by decay without the fault of the master, and was for that reason left

73. Acceptance of goods by consignee. Eddy (U. ?<.), 5 Wall. 4S1, 18 L. Ed.
—Propeller Mohawk (U. S.). 8 Wall. ir,3, 486.

19 L. Ed. 406; Cazc v. Baltimore Ins. Co. 77. Less damages sustained by owner.

(U. S.), 7 Cranch 358. 3 L. Ed. 370; The — Hines Lumber Co. v. Chamberlain, 118

Societc (U. S.), 9 Cranch 209, 3 L. Ed. Fed. 716. 55 C. C. A. 236.

7 78. Goods lost or abandoned. — Steam-

-. \ , o r^ TT 1 4. -1 ^ T o<o ship Den v. Standard Oil Co., 189 Fed.

74. Adams & Co. v. Hauffht, 14 Tex. 243. '^

75. Vessel detained by inevitable neces- 79. ti,c James Martin, 88 Fed. 649.
sity.— Adams & Co. v. Hauffht, 14 Tex. gO. The Eliza Lines, 114 Fed. 307, 52
243. C. C. A. 195, modified. 132 Fed. 242. 65

76. Shipment too large to be landed in C. C. A. 538, and reversed in 26 S. Ct. 8,
one day.— Brittan v. Barnahy (U. S.), 21 199 U. S. 119, 50 L. Ed. 115, 4 Am. &
How. 527, 16 L. Ed. 177. See, also, The Eng. Ann. Cas. 406.



707



§§ 4343-4344 carriers. 3942

behind on the voyage, the shipowners are entitled to recover for the freight on
all that was duly transported and delivered.*^

Surrendered to Insurer. — Where a cargo was insured by the shipper for
sufficient to cover its value and the freight, the fact that on the wrecking of the
vessel the cargo was surrendered by the master to the insurer without notice
to the shipper did not prejudice him, and constituted no defense to an action to
collect the freight under the terms of the bills of lading.^-

§ 4344. Amount Recoverable. — The amount of freight which the owner
can recover from the shipper depends upon a fair construction of the con-
tract.ss

Usage and Custom. — The amount of freight may be determined by usage.^"*

Exchange on Foreign Bills. — On a bill of lading stipulating that the freight
shall be paid in New York, "at the current rate of exchange for banker's sight
bills on London," the amount of the freight being expressed in English money,
the amount payable is not to be calculated in gold, but in currency at the current
rate for bills on London ; and to this is to be added interest at the New York
rate from the time when the freight is payable. ^-^

Rate Current at Commencement of Voyage. — A barge laden with coal
to be carried from Philadelphia to Boston, which had started in tow, and pro-
ceeded down the river for two or three miles, when she was injured by floating
ice, causing a delay in delivery, had entered upon the voyage, and was protected
by a provision of the bill of lading excepting "accident or danger of the sea,
river or steam navigation ;" and, under a further provision of the contract by
which she was to receive the market rate of freight, she was entitled to the rate
current when the voyage was commenced, unless the delay was caused by her
own negligence.^''

Contract for Shipment in Bulk or by Ton. — When a bill of lading pre-
sented by the shipper, and signed by the agent of the ship, recites a shipment in
l;ulk as so many tons, at so much freight per ton, it will be construed as a con-
tract for carriage in bulk, and the freight is not subject to reduction because
the cargo when delivered does not weigh out the quantity stated.^" Where the
captain of a vessel contracted with plaintiff to carry a full cargo of stone, which
would be three hundred tons, at a certain price per ton, and afterward, by claim-
ing that there was enough stone on the dock to make a full cargo, prevented the

81. Without fault of master. — So held to take the invoice measurements in
as to a carp^o of fruit where part of it which the logs were reduced to square
was condemned and thrown away at an measure as the basis for computing
intermediate port into which the master freight, and to add $3 per thousand feet
was forced to put for repairs. The Col- to the freis^ht to United States ports
lenberg (U. S.), 1 Black 170, 17 L. Ed. 89. where the logs were round. It was also

82. Surrendered to insurer. — Decree, shown that the highest rate of freight
British, etc.. Marine Ins. Co. v. Portland paid to such ports for squared logs at
Flouring Mills Co., 124 Fed. 855, affirmed the time of the contract was $10 per
in 130 Fed. 860, 65 C. C. A. 344. tliousand feet. Held, that in the absence

83. Amount of freight. — Robinson v. of any designation of the method of
Noble (U. S.), 8 Pet. 181, 8 L. Ed. 910. measurement in the contract it must be

84. Usage and custom. — A schooner presumed to have been made with ref-
contracted for a lump sum of $720, as erence to such custom, especially in view
freight to carry from a Cuban port to Mo- of the stipulated rate of $12 per thou-
bile "round cedar logs, to consist of 60,000 sand feet. Peterson v. Eight Hundred
feet." It appeared that there were two and Sixty-Nine Cedar Logs. 127 Fed. 868.
methods of measuring round logs, one of 85. Exchange on foreign bills. — Hus
which was to square them, and so com- v. Kempf, Fed. Cas. No. 6,944, 10 Ben.
pute their contents, and the other to com- 364.

pute their entire contents as round logs. 86. Rate current at commencement of

By the testimony of persons engaged in voyage. — Philadelphia, etc., R. Co. v.

the shipping and timber business in Cuba, Peale, 135 Fed. 606.

where the charter was made, it was shown 87. Contract for shipment in bulk or

without material contradiction that it by ton. — Plantes' Fertilizer Mfg. Co. v.

was the custom in shipping from there Elder, 101 Fed. 1001, 42 C. C. A. 130.



3943 CARRIAGE OF PROPERTY. §§ 4344-4345

loading of a full cargo before the vessel sailed, the plaintiff was liable only for
the contract freight on the number of tons actually carried. ^^

Goods Taken by Owner at Intermediate Point. — Where the cargo owner
takes the cargo from a vessel before the completion of her voyage, under cir-
cumstances which do not entitle her to exemplary damages, she can recover only
such damages as will compensate her for the net injury suffered, and from the
estimated net freight she would have earned is to be deducted the net amount
she earned, or should reasonably have earned during the time it would have taken
her to complete the voyage. ^^

§ 4345. Deductions and Offsets. — Freight upon live animals is not esti-
mated upon such as die on the passage, unless under a special agreement. ^i*^ In
an action for freight, the owner of the cargo may recover damages by way of a
counterclaim for the injury sustained by reason of negligent navigation on the
part of the carrier.^ ^ Where a master who is also owner of a vessel gives a
shipper a bill of lading reciting the receipt of a certain amount of iron, and an
agreement to deliver it to the consignees, the damages occasioned to the con-
signees, who, relying on the correctness of the recital, pay the shipper for more
iron than is actually on board, may be recouped against a claim for the freight,
Avhich was to be paid by the consignees, subject, however, to limitation to the
amount claimed for freight. ^-

Advancements Paid by Shipper. — In an action for freight on a cargo, a claim
for advancements paid by the shipper for plaintiff's benefit on a similar cargo,
never delivered, without the fault of the carrier, which according to custom the
carrier, after paying, would have collected with his freight charges, cannot be set
up as a counterclaim ; the money paid by the shipper being paid for his own bene-
fit.93

Expense of Unloading. — A canal boat laden with coal filled and sank, after
reaching her dock, through leakage, and the negligence of her captain. The con-
signee, whose duty it was to discharge the cargo, did so after waiting two days,
being put to additional expense because the boat was under water. He was justi-
fied in such action to save the cargo from further damage and possible loss, and
was entitled to offset the increased cost of discharging against the carrier's claim
for freight.^-*

For Loss Caused by Agent of Shipper. — Where a charter provided that the
vessel's stevedore for loading and unloading should be approved by the charterer,
and his agent refused to permit the master to discharge a stevedore for rough
handling of the cargo in unloading the charterer was not entitled to make a deduc-
tion from freight on account of breakage by such stevedore. '^^

Where Damages Paid. — Where a cargo owner is allowed as damages against
the vessel for loss of cargo its full value at the port of delivery, he is not entitled
to a reduction in freight on account of the loss.^^

Where Goods Shipped Short. — The libelant and the respondent entered into
a verbal contract that one of the respondent's steamers should load and transport
a quantity of marble. The marble was delivered, as agreed, alongside the steamer,
which made the voyage with only a part of the cargo, insisting subse(iuently that

88. Clancy v. Button, 113 N. Y. S. 93. Advancements paid by shipper. —
124, ]29 App. Div. 23. Xcville v. I'cnnsylvania, etc., Co., 99 N.

89. Goods taken by owner at interme- ^' ■ ?>• •-"<>■ T-' •'^PP- 1^'^- '^''8-

diate point.— The I'.liza Lines, 102 Fed. 94. Expense of unloading.— Aldrich v.

]S4. Cargo of 24() 5/20 Tons of Kgg Coal, 117

90. Deductions and offsets.— Wolcott ^'^il' "^"' , , . . r u-
V. Eagle Ins. Co. (Mass.), 4 Pick. 429. ^^- ^^or loss caused by agent of ship-

^ , T-« ,r -.^ per. — Stcaiiisliip Den v. Standard Oil

91. Conrad v. De Montcourt, 138 Mo. q^^ ^t.,, j,-,^.,] j^^o,,

311, 39 S. W. 80.5. 96. Where damages paid.— Carolina

92. Relyea v. New Haven Kolling-Mill I'ortland Cement Co. v. Anderson, 186
Co., 7.5 Fed. 420, 42 Conn. 579. Fed. 145, 108 C. C. A. 257.



§§ 4345-4347 carriers. 3944

the libelant's agent should sign a bill of lading for the whole, describing the omitted
portion as "short shipped," which bill the agent signed under protest. The libelant
was entitled to recover from the steamer the amount exacted in excess of the
freight earned.^'

Where Ship Sold in Admiralty Suit. — After the owners of a cargo which
had been loaded on a vessel at a Maine port, to be carried to New York, had ad-
vanced money on the bill of lading signed by the master, and the advance credited
thereon, the vessel was sold in an admiralty suit. The new owmers, without notice
to or negotiations with the cargo orders and without a new bill of lading being ex-
ecuted by the master, ordered the vessel to proceed with the cargo to New York,
afterwards presenting to the cargo owners a new "bill of lading signed by them-
selves but not by the master, having no credit thereon, which the cargo owners re-
fused to accept. An additional agreement made by the cargo owners to pay a
further sum from the freight when the cargo was discharged to a creditor of the
former vessel owner made for the purpose of securing the discharge of the vessel
from the attachment but which did not accomplish that result did not entitle the
cargo owners to deduct such sum from the freight as against the new owners who
performed the carriage of it, it not appearing that the agreement was one which
the creditor could enforce under the circumstances.^ -

Contradicting- Bill of Lading. — While the bill of lading in respect to the quan-
tity received is a receipt and entitled to great weight as an admission by the ship,
and places upon her the burden of proof, it is not conclusive, and she cannot be
held liable for a shortage if she fully satisfies the court that it is erroneous and
that she delivered all the cargo she received. ^^

§ 4346. Change of Rates. — A carrier agreed to carry flour and grain at a
given rate, "to continue in force till close of navigation, unless notice to contrary."
A notice of a change of rates, to take effect in twelve days, was reasonable, with-
out regard to the extent of the shipper's purchases, or the situation of his flour or
grain purchased, or the carrier's information concerning the same.^

§§ 4347-4352. Lien for Freight— § 4347. In General.— Shipowners,
as a general rule, have a lien upon the cargo for the freight, and consequently
may retain the goods after the arrival of the ship at the port of destination until
the payment is made.^ Where the consignee and owner of a cargo fails to pay
or tender the freight due on the discharge of the cargo, the carrier, to preserve

97. Where goods shipped short.— The Mete. 403; Welch v. McClintock (Mass.),
Citta Di Palermo, 15?. Fed. 378. 10 Gray 215.

98. Where ship sold in admiralty suit. As between the owner of the ship and
— Chadwick v. Five Hundred and Sev- the owner of the cargo, the former has
enty-Six Granite Blocks, 17S Fed. 140. a hen upon the cargo, for all the freight

99. Contradicting bill of lading.-James ^!"^J becomes due and payable to hini,

v. Standard Oil Co., 191 Fed. 827. affirm- ^^''^^^^7- '^ \' ^ f."^^ "^ ^^'^i ?/\Tr'l\

ino- rierree 1 SQ Fed 7iq Cohnnbian Ins. Co. V. Catlett (U. S.),

mg decree. 189 J-ed. /19. ^^ Wheat. 383, 6 L. Ed. 664.

1. Change ol rates.— Thayer v. Burch- jf ^he ship owner retains the posses-
ard, 99 Mass. 508. sion of the ship, and the charterer is

2. Lien for freight. — The Bird of Par- merely the freighter, the former has a
adise (U. S.), 5 Wall. 545, 18 L. Ed. 662; lien upon the cargo for freight. Gracie
The Kimball (U. S.), 3 Wall. 37, 18 L. v. Palmer (U. S.), 8 Wheat. 605. 5 L.
Ed. 50; The Eddy (U. S.), 5 Wall. 481, Ed. 696, which illustrates this rule, the
18 L. Ed. 486; 4,885 Bags of Linseed (U. charter party stipulating "that no goods
S.), 1 Black 108, 17 L. Ed. 35; Gracie v. shall be landed until the freight is paid."
Palmer (U. S.), 8 Wheat. 605. 5 L. Ed. Raymond v. Tyson (U. S.). 17 How. 53,
696; Lane v. Penniman, 4 Alass. 91; Lewis 15 L. Ed. 47.

V. Hancock, 11 Mass. 72; Cowing v. Regarded as maritime lien. — Such a

Snow, 11 Mass. 415. See Portland Bank lien is regarded in the jurisprudence of
V. Stubbs, 6 Mass. 422, 4 Am. Dec. 151; the L^nited States as a maritime lien.
Richardson v. Whiting (Mass.), 18 Pick. The Bird of Paradise (U. S.), 5 Wall.
530; Thomas v. Le Baron (Mass.), 10 545, 18 L. Ed. 662; 4,885 Bags of Linseed

(U. S.), 1 Black 108, 17 L. Ed. 35.



3945 CARRIAGE OF PROPERTY. §§ 4347-4349

its lien, is authorized to retain and store sufficient of the cargo to pay such freight,
and the expense of storage and loss of use of the commodity must be borne by
the owner. ^

After Payment of Freight. — Although the master may retain the cargo un-
til the freight be paid or tendered, he must be ready to deliver the cargo on pay-
ment or tender.^

Lien for Freights, Primages and Charges. — A provision of a bill of lad-
ing issued by a steamship company that "the carrier shall have a lien on the goods
for all freights, primages, and charges"' does not affect or change the nature of
the lien, which is simply the maritime lien as understood in the jurisprudence
of the United States, to preserve which the retaining of possession is essential, al-
though such provision may in some cases preserve the lien where it would other-
wise be deemed waived by other provisions relating to the time and manner of
paying the freight.-'

Includes Expense of Preservation of Goods. — A ship is responsible for
the preservation of the cargo from the time of receiving it until it is delivered,
and the captain has authority to incur any expense necessary to the fulfillment of
that obligation, which is included in the ship's lien.^

Operates as Pledge or Mortgage. — A maritime contract for the transpor-
tation of goods operates as a pledge or mortgage of the goods to the shipper to
secure payment of the freight earned."

Reciprocal Liens between Ship and Cargo.— The shipowner contracts for
the safe custody, due transportation, and right delivery of the merchandise, and
the shipper, consignee, or owner of the cargo contracts to pay the freight and
charges. These obligations are reciprocal, and the law creates reciprocal liens for
their enforcement,® unless the lien is waived by some express stipulation, or is
■displaced by some inconsistent and irreconcilable provision in the charter party or
bill of lading.^

§ 4348. Time Lien Attaches. — The lien for freight commences as soon as
the goods are delivered into the control of the master, or certainly as soon as they
are put on board. ^"*

§ 4349. Property Subject to Lien. — There is no lien on one cargo for
freight which may accrue on another. ^^ Freight is not a charge upon the salvage

3. The Asiatic Prince, 103 Fed. 676. How. 386, 16 L. Ed. 599; The Lady

4. After payment of freight.— Lane v. Franklin (U. S.), 8 Wall. 325, 19 L. Ed.
Penniman, 4 Mass. 91; Lewis v. Hancock, 455; 4,885 Bags of Linseed (U. S.), 1
11 Mass. 72; Cowing v. Snow, 11 Mass. Black 108, 17 L. Ed. 35; The Eddy (U.
415. See Richardson v. Whiting (Mass.), S.), 5 Wall. 481, 18 L. Ed. 486; The Bird



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 157 of 214)