AND FOREIGN ORDINANCES.

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points and principles settled and established by the preceding authorities.

With a reference hereafter to the leading cases in the English Admiralty, the only remaining authentic sources to be consulted for instruction upon the earning and payment, loss or suspension, of freight, are the foreign codes. But these, at the present period, are not entirely conclusive as authority. So much have they been qualified by modern legislation, and recent decisions, that it would be quite unsafe to rely upon them implicitly as general or accepted doctrine for the settlement of maritime causes, without some caution.

In the French Ordinance, book 3, title 1 relates to charter parties and freighting of ships; title 2, to bills of lading; and title 3, treats of freight; comprising twenty-eight different articles in this one title; and referring in brief to the chief topics which have entered into the many discussions and decisions of modern times. The more this ordinance is examined, the more will all students incline to join Charles Abbott in designating it as "the maritime code of a great commercial nation, which has attributed much of its national prosperity to that code; a code composed in the reign of a politic prince; under the auspices of a wise and enlightened minister; by laborious and learned persons, who selected the most valuable principles of all the maritime laws then existing; and which in matter, method, and style, is one of the most finished acts of legislation that ever was promulgated."

This 3d title, upon freight, is mainly intended to give a synopsis of whatever was valuable and important in 1681 to secure the respective rights of masters, merchants or shippers and ship-owners. It provides gener

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ally, for the regulation of freight by charter party and bill of lading:

For restraining a ship-master from taking on board more cargo than that supplied by the freighter, without the latter's consent; or without allowing him freight therefor:

For compelling a merchant to pay full freight, if he load less; and extra freight, if he load more than the quantity stipulated for:

For awarding damages, if a master overstate the capacity of his vessel, unless the difference stated should be inside of one fortieth part:

For paying one half freight, should the shipper reland his goods before the vessel shall have sailed on her voyage:

For authorizing a master to unload and land any goods, put on board without his knowledge, or to exact for such goods the highest rate of freight:

For exacting full freight of a shipper, who may unload his goods during the voyage, unless compelled so to do by the master's act:

For securing to the master full freight, for carriage; and also damages of retardment (demurrage), should the freighter either detain or force the ship to return empty; and, on the other hand, damage to the freighter should the vessel be detained by the master's default:

For requiring a freighter to wait for refitment, if the carrier vessel be disabled, or pay full freight; and the master to hire another ship, if his own ship be not in a condition to be refitted; but if he be unable to do this, then he shall be entitled only to freight, pro ratú itineris peracti:

For exacting forfeiture of freight of the carrier and

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allowing damages to the shipper, should a vessel put to sea in an unseaworthy state:

For paying freight out of the contribution for goods jettisoned; also for cargo sold to refit the ship or furnish necessary supplies; but outward freight only shall be paid, when commerce has been interdicted, even though the vessel shall have been freighted to go and

come:

For remitting freight which would have been earned by a ship, arrested by a superior power during the time of her detention, if freighted by the month; and if hired by the voyage, there shall be no augmentation of freight; but seamen's wages and food shall be deemed average for the time of detention :

For empowering a master to sell a portion of the cargo to pay freight, and warehouse the residue, should a consignee refuse to accept:

For restoring freight advanced, in case of goods lost by wreck, pirates, or public enemies, unless otherwise stipulated :

For requiring payment of freight due to the place where the goods were taken, if the ship and goods be ransomed; and the master to contribute toward the ransom; such ransom to be based upon the current price at the place of discharge:

For allowing to the master freight of goods saved from wreck, should he transport them to the place of destination; but unless he find a ship to transport, he shall be entitled only to proportional freight :

For inhibiting the master from detaining goods in his ship, for payment of freight; but, when unloading, it is permissible for him to stop the goods from being carried away, or to seize them in the lighters:

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SUMMING UP OF LAW AS

For creating a preference, lien, or pledge in the master's favor, for the freight on goods while in his ship, or lighters, or on the wharf; and continuing to him such hypothec for fifteen days after delivery, unless the goods shall have passed to the possession of a third party :

For prohibiting a merchant from compelling a master to receive for freight goods fallen in price, or spoiled, or damnified by their own fault, or by accident; provided however, if wine, oil, honey, or other liquors, in casks, shall have so leaked that the casks are nearly or quite empty, the merchant may abandon the casks to the master for freight:

For prohibiting brokers and others from improperly getting more freight than the contract stipulates for, under a penalty of one hundred livres or further punishment if deserved:

And for allowing a freighter, who has not filled the whole ship, to take other goods, and appropriate the additional freight for their carriage to his own use.

Some of the articles of this ordinance are modified and qualified by modern decisions and legislation; but, the substance of many of them form part and parcel of the general maritime law, and are deeply incorporated into the decisions of both the common law and admiralty courts of England and the United States. V At the present period, it is established law, that when a ship is disabled by stress of weather or other vi majore so as to require repairs, and in consequence of such disability, is compelled to seek a port of refuge for repairs and refitting; and the intermediate port is so remote from the port either of departure or destination, that communication with the shipper or merchant is measurably impracticable; and the preservation of the cargo,

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from its condition or nature, requires removal or transhipping; it then becomes the duty of a master to hire, charter, or otherwise procure another ship, to securely forward such cargo to its place of destination, or reship it to the freighter, in order to entitle himself or his ship to freight, either full or pro ratâ.

And this duty, thus devolving upon the master, as the agent of all concerned, is so imperative, that any omission to perform it would subject the master, as agent, or the owner, as principal, to suit for damage. It is not merely an authority with which a master, by his appointment, is constructively clothed; but a positive duty cast upon him, ex virtute offici, by the general maritime law, as now interpreted and administered in the admiralty courts of England and this country. And in order to earn and secure freight, a master must observe and perform this duty, unless prevented by some superior force or invincible necessity.

The foreign codes and jurists have conflicted inter sese somewhat in this respect; the codes not containing the same expressions, and the jurists not construing those expressions in precisely the same manner. Thus as to this very right or duty of a master to reship or tranship, the articles in the codes differ, and the constructions of eminent French jurists disagree.

Such differences are permanent with those jurists who have been text writers; and to whose recorded opinions access may be had through their published works. But the damage resulting therefrom is not probably so great as the differences are permanent. For these differences, in the codes and constructions, have been subjected many years to the critical test of legal discussion and judicial examination; and the re