382

STOPPAGE IN TRANSITU.

institute legal proceedings for damage, he not having any right of property, when any of the usual and wellknown objections are to be urged as defense in suits for freight, and deduction is to be claimed either for nondelivery, short delivery, bad delivery, leakage, breakage, imperfect stowage, or detention, whereby the loss of the chance of a good market follows, from the default of the carrier or his agent or servants.

In the case of the St. Cloud (supra) it was held, that a bare assignee, without any property in the goods, or right thereto, was not deemed to be sufficiently a persona standi in judicio to promote suit,-such assignee not having the legal capacity or ability to sue as a party.

In this case, the right of stoppage in transitu was amply considered and discussed. In the Tigress (supra), Dr. Lushington, February 17, 1863, while examining the right of a master to refuse delivery to parties having the right to demand, states the rule applicable thereto; and justifies him in refusing to deliver, when he is "simply retaining the custody of (cargo) for the person entitled, until it should appear who that person was. An abundance of cases show, that the right to stop in transitu means the right, not only to countermand delivery to the vendee, but to order delivery to the vendor.

"Were it otherwise, the right to stop would be useless, and trade would be impeded."

The legal description and use of a bill of lading are well understood. It may be described to be a shipmaster's acknowledgment for goods shipped. As a commercial instrument, it, in one respect, resembles a bill of exchange; being negotiable, or rather transferable

BILL OF LADING DEFINED.

383

by endorsement. The contract itself may be thus transferred; but it does not thence follow that the property also is thereby transferred. And there is high authority for declaring that, although a bill of lading may be transferred to an indorsee, a transfer of the contract may be very different from a transfer of the property. An indorsee cannot establish a claim without proof that the indorser has in fact paid value for the goods. Nor can the right to stop goods in transitu be assigned to another; for such right is a personal right of the vendor, of which he cannot be divested by any act of third parties.

The bill of lading, charter party, or their equivalents, are the customary legal instruments, in which the contract for freight is incorporated. The contract itself is termed affreightment, and its specific product is freight.

It has been not uncommon to consider these various subjects in distinct chapters. But it was supposed, that all which was necessary to be stated in reference to either charter party, bill of lading, or other similar written or oral agreements, which are permitted to be substituted for them, together with freight and af freightment, might well be included in a single chapter. Accordingly, the attempt has been made to accomplish that design; and if the effort has been measurably successful, it has been shown that the parties engaged in contracts for freight, are, on the one hand, the shipowner, master and charterer; on the other, the merchant, freighter, owner of cargo, consignees, and assignees of bills of lading, or others succeeding to their legal rights.

From the authorities cited and statements made, it is manifest that the carrier will be entitled to payment of

384

FREIGHT, WHEN EARNED.

freight, if it shall have been earned either by the actual or substantial performance of the contract; and that, for safe carriage, the freighter, shipper, or owner of cargo will be liable for the payment of the freight agreed for.

Transportation, as stipulated for by the contract, entitles the carrier to the freight, as stipulated for. By this is meant full freight, without any deduction by way of recoupment or otherwise, as contradistinguished from pro ratá or reduced freight. In other words, full freight is due upon complete performance; reduced freight, upon partial performance.

Partial performance may occur when the ship stops short of her destination; or when the voyage is interrupted by war, wreck, embargo, or other interdiction of commerce.

Substantial performance may be equivalent to complete performance, when the fault is not that of the carrier, or when the fault, if any, is attributable to the shipper or owner of the cargo.

Other superadded duties devolve upon the master, when he is compelled to seek a port of refuge for repairs:

First, the duty of refitting, if that shall be practicable;

Second, if refitment be impracticable, then the duty of forwarding by reshipment or transhipment.

But, for the purposes of freight, from both of the preceding duties the master is relieved, should the freighter, or his agent for him, voluntarily accept delivery short of the destined port, at some intermediate port of refuge; should the freighter, however, decline to accede to the delivery of cargo at any port short of its

DEVIATION, CULPABLE OR EXCUSABLE.

385

destination, whereby the duty would devolve upon the master to refit or reship, at his election, and refitting be not deemed feasible, then for the special purpose of reshipping or transhipping, the master is entitled to reasonable time.

Interruption of a voyage may be caused by deviation, as well as by war or wreck. Deviation may be blamable or commendable. The carrier, in any diversion from his direct course, must not be in fault. Should he causelessly deviate, it would be blamable deviation, drawing after it forfeiture or deduction of freight, which are the legal penalties usually attaching to unjustifiable departure from the regular route.

An involuntary deviation, occasioned by stress of weather, pursuit of public enemies or pirates, would not be deemed blamable in the carrier; nor would a voluntary deviation, made for the purpose of affording relief to persons in distress, subject a carrier to blame or censure; but, on the contrary, it must be regarded as a commendable act, and the master would be justified on the ground of humanity. The Boston, 1 Sum. 328; The Henry Ewbank, ibid. 400; The Blaireau and Brig Cora, supra.

In any case of part-performance, non-performance, culpable deviation, neglect, and delay in refitting or reshipping, where reduction or deduction may be claimed to be recouped in the same suit or recovered in another by cross-libel, a necessity for computation occurs, requiring clerical or auditing skill and service, which, in England, are usually effected by reference to the registrar and merchants; but which, in the United States, may be done by sending the matter to an assessor, auditor, or referee.

386

RIGHT TO FREIGHT ACCRUES ON PERFORMANCE.

By the policy of the law, freight does not become due until the voyage has been performed. Nevertheless, it is competent for a party to make an absolute payment in advance, and which will not, therefore, depend upon the performance of the voyage. If this payment be made in anticipation for taking goods on board merely, it cannot, strictly speaking, be deemed freight, as freight is the compensation to be made for the transportation of cargo to its place of destination, and so denotes the price of the carriage and not that of the reception of goods to be carried. Abb. Sh. 406, Smith's Merc. L. 283.

A right to freight may vest and become a charge upon the cargo, where a vessel has been captured and restored. The Hoffnung, supra.

The completion of the contract of affreightment may be prevented by the fault or incapacity of the ship, or cargo, or both. The Copenhagen, 1 Ch. Rob. 289; The Louisa, 1 Dod. 319; The Fortuna, Edw. 57; The Prosper and Holstein, ibid. 72; The Race-horse, 3 Ch. Rob. 101.

So also it may be prevented by capture. The maxim that capture is delivery and therefore freight is earned, is true only where the captor succeeds fully to the rights of the enemy, and represents him as to those rights.

The captor of a neutral vessel, having enemy's goods, pays the whole freight, though it has been earned by the completion of the voyage, because he represents the enemy by possessing himself of the enemy's goods jure belli. The Copenhagen, supra.

Temporary incapacity to perform, or involuntary disability to deliver, is not then necessarily fatal to the recovery of freight.